Contemporary Indian President’s Stance in Indian Constitution

Indian Constitution which is the world’s lengthiest Constitution[1] clearly mentions in Article 52 that there shall be a President of India[2]. The word shall in this article means mandatory. It expresses that the post of President can never be vacant. In President’s Succession Act, 1969[3] it was put forth that if by any chance the post of President becomes vacant, the Vice- President will take over the post of President. If not the Vice-President then the Chief Justice of Supreme Court will take control of the position and likelihood if he is also not there then the senior most Judge of Supreme Court will take charge of the prestigious post of the President of India.

THE 15TH INDIAN PRESIDENT

The news of the 15th President of India, Draupadi Murmu (her original Santhali name – Puti) [4]being elected is on air everywhere. She is the youngest President to ever hold the prestigious post before her Neelam Sanjeeva Reddy, the 6th Predident of India was known to hold the title of being the youngest President[5]. She is the first President of India who is a tribal (belongs to Santhali tribe) and was born in an independent India. She is the second women Indian President after Pratibha Patil (2007- 2012). Before entering politics she was a teacher at Sri Aurobindo Integral Education Centre, Rairangpur and later she worked as a junior assistant in the Irrigation Department of Odisha. She stepped into the field of politics in the year 1997 by joining Bharatiya Janata Party and being elected as the councillor of Rairangpur Nagar Panchayat. In the year 2000 she became the MLA of Odisha and served as Minister of State with Independent Charge for Commerce and Transportation and Fisheries and Animal Resources Development. She also was the one who held the position of Governor of Jharkhand and was the first women who held this position.[6] In 2007 she also received the prestigious Nilkantha award for the best MLA of Odisha Legislative Assembly.[7]

MENTION OF PRESIDENT IN INDIAN CONSTITUTION

It is in Part V of Indian Constitution in Chapter 1 titled Union Executive from Article 52 to Article 62 that the detailed mention of importance of President and related chief points of the post are found. Article 53 talks about the Executive power of the Union[8]. Clause 1 of Article 53 says that the Executive Power of the Union shall be vested in the President of India and this power shall be exercised by him either directly or through officers subordinate to him. In the case of Emperor v. Sibnath Banerjee, AIR 1954 SC 156 it was held that the expression ‘officers subordinate to him’ includes a minister also[9]. Same article’s clause 2 also establishes that the supreme command of the Defence Forces shall be vested in the President and the exercise thereof shall be regulated by law[10]. Hereby, through this article it can be sum upped that the President is the Executive Head of the Union and Supreme Commander of the Defence Forces.

ELECTION OF INDIAN PRESIDENT

Article 54 and Article 55 gives us an insight of the election of President. Article 54 talks about the election of President[11] it says that the President shall be elected by the members of an electoral college consisting of the elected members of both the Houses of Parliament (Lok Sabha and Rajya Sabha) (Sub-clause ‘a’ of Article 54). The 12 nominated members of Rajya Sabha (Article 80) and [ 2 Anglo-Indian members in Lok Sabha (Article 331) – provision removed by 126th Constitutional Amendment Act, 2019][12] are not part of the electoral college as they are nominated by the President, it was done to keep the election process unbiased. Sub-clause ‘b’ of Article 54 establishes that the elected members of the Legislative Assemblies of the States will also be the part of the electoral college but not the elected or nominated members of the Legislative Council. Explanation of the article which was instituted by the 70th CAA, 1992 tells that in Article 54 and 55, “State” includes the National Capital Territory of Delhi and the Union territory of Puducherry. Article 55 informs us about the manner of election of President[13] which says that the election of President shall be held in accordance with the system of proportional representation by means of the single transferable vote (Clause 3 of Article 55). The system adopted for voting is secret ballot. The Constitution provides that as far as practicable there shall be uniformity in the scale of representation among the State inter se as well as parity between the States as a whole and the Union at the election of the President (Clause 1 of Article 55).

Hereby, the President of India is indirectly elected by the members of an electoral college by the method prescribed in Article 55. Some immunities that the President gets in cases concerning his elections comes from Article 71.

Article 71 provides that all doubts and disputes arising out of or in connection with the election of the President or Vice-President shall be ‘inquired’ into and ‘decided’ by the Supreme Court whose decision shall be final. But if the election of the President or Vice- President is declared void by the Supreme Court acts done by President or Vice-President in the exercise of their powers before the date of decision of the Supreme Court shall not be invalidated by reason of that declaration. Clause 4 of the same article makes it clear that the election of the President or Vice-President cannot be challenged on the ground of existence of any vacancy for whatever reason in the electoral college electing him. Clause 4 was introduced by 39th CAA,1961.[14]

Article 62[15] Clause 1 provides that elections to fill the vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term. Clause 2 of the article says that an election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in no case later than six months from, the date of occurrence of the vacancy; and the person elected to fill the vacancy shall, subject to the provisions of Article 56, be entitled to hold office for the full term of five years from the date on which he enters upon his office.

OTHER SALIENT ARTICLES RELATED TO PRESIDENT IN INDIAN CONSTITUTION

Article 56 provides for the term of office of President[16]. Clause 1 of the article says that the Indian President shall hold office for a term of five years from the date on which he enters the office. Provided that (a) the President may, by writing under his hand addressed to the Vice-President, resign his office; (b) the President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in Article 61; (c) the President shall, notwithstanding the expiration of his term, continue to hold his office until his successor enters upon his office. Clause 2 of the same article says that the resignation of the President addressed to the Vice-President shall forthwith be communicated by Vice-President to the Speaker of the House of the People. In America after 22nd Amendment to the U.S.A. Constitution, a person cannot be elected to the office of President more than twice.

Article 57 says that a person who holds, or who has held, office as President shall, subject to the other provisions of this Constitution be eligible for re-election to that office.[17]

Article 58 mentions the qualifications for election as President[18]. Clause 1 of the article puts forward that no person shall be eligible for election as President unless he: (a) is a citizen of India, (b) has completed the age of thirty-five years, and (c) is qualified for election as a member of the House of the People.                                                

Clause 2 of the same article says that a person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.

Explanation to the article establishes that a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State.

Article 59 on the other hand tells about the condition of President’s office[19]. It says that the President cannot be a member of either House of Parliament or a House of the Legislature of any State. If a member of either House of Parliament or of a State Legislature is elected President he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President (Clause 1). The President shall not hold any other office of profit (Clause 2). Some benefits that the President of India enjoys under this article can be seen through its clause 3 and clause 4. Clause 3 of the article explains that the President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and until provision in the behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule and Clause 4 says that the emoluments and allowances of the President shall not be diminished during his term of office[20]. The Parliament enacted the President’s Emoluments and Pension Act, 1951 to provide for the emoluments and pension of the President. The Act is amended from time to time to determine such emoluments and pension[21].

 According to Article 60, before entering upon his office, the President has to take an oath or an affirmation in the presence of the Chief Justice of India, or, in his absence, the seniormost judge of the Supreme Court available, ‘to preserve, protect and defend the Constitution and the law and to devote himself to the service and well- being of the people of India’[22].

The most important article in the constitution regarding President is Article 61 which mentions the procedure for impeachment of the President[23]. Through this article the President is both given an immunity from a tough procedure of impeachment and only one ground for being impeached so that he is not being able to be impeached easily as well as if this is seen from other side a ground i.e. violation of constitution is provided on which the President can be impeached so that he does not become arbitrary in the exercise of his duties.

The impeachment charge against him may be initiated by either House of Parliament. The charge must come in the form of a proposal contained in a resolution signed by not less than 1/4th of the total number of the members of the House and moved after giving atleast 14 days’ advance notice. Such a resolution must be passed by a majority of not less than 2/3rd of the total membership of the House. The charge is then investigated by the other House. Here comes the instance where his/her importance could be found i.e. the President has the right to appear and to be represented at such investigation. If the other House after investigation passes a resolution by 2/3rd majority declaring that the charge is proved, such resolution shall have the effect of removing the President from his office from the date on which the resolution is so passed. Under Article 11, Section 4 of the American Constitution, the President and all Civil Officers of the United States can be removed from office on impeachment for, and conviction of, “treasury, bribery, other high crimes and misdemeanours.”  In America the power to initiate the impeachment proceedings lies with the Lower House which appoints a committee to investigate the charge. The findings of the House are then sent to the Senate for action. The Senate which hears the impeachment is presided over by the Chief Justice of Supreme Court of America. If the Senate by 2/3rd majority of the members present at the trial agrees to the charges, the President is convicted and removed[24].

POWERS OF INDIAN PRESIDENT:-

The Constitution has conferred extensive powers on the Indian President[25]:-

EXECUTIVE POWERS:-

1. Article 77(1) the executive power of Union of India is vested in him. He is the head of the Indian Republic. All executive functions are executed in the name of the President.                       

2. The President shall make rules for the more convenient transaction of business of Government of India and for the allocation of business among the Ministers of the said business[Article 77(3)].

3. Has the power to appoint the Prime Minister and on his advice other Ministers of the Union[Art.75(1)], the Judges of the Supreme Court[Art.124(2)] and high courts[A.217(1)], the Governors of the states (A.155),Attorney General [A.76(1)], the Comptroller and Auditor General[A.148(1)],the Chairman and members of the public service commission [A.316 (1)], members of Finance Commission[A.280(1)] and Chief Election Commissioner and other Election Commissioners[A.324(2)],Commission to report on the administration of Scheduled Areas(A.339),etc

The above mentioned officials hold their office during the pleasure of the president. He has a power to remove them. This power is however subjected to the procedure prescribed by the constitution. Under Art.74 the President is bound by the aid and advice of the Council of Ministers in exercise of his powers.

MILITARY POWERS

He is the Supreme Commander of the Defence Forces.

Has the powers to declare war and peace. Exercise of these is regulated by law (Parliament), exercised by him on the advice of the cabinet.

DIPLOMATIC POWERS

He sends and receives ambassadors, other diplomatic representatives. All treaties and international agreements are negotiated and concluded in the name of the President (subject to ratification by Parliament) (A.253)

 LEGISLATIVE POWERS

The President of India is the component part of the Union Parliament.

Has power to summon and prorogue the Parliament, can dissolve Lok Sabha A.85(1), can call a joint session of both houses to resolve the deadlock (A.108),nominate 12 members of the Rajya Sabha from among persons having special knowledge of practical experience of literature science art and social services [A.80(3)] ,lays before the Parliament the Annual Financial Statement (A.112),report of Auditor General, report of the Special Commission for Scheduled Castes and Scheduled tribes,etc.

Under A.111 every bill passed by both Houses requires assent of the President but this power is also subjected to A.74. He can Give his assent to the bill, withhold his assent to the bill or return the bill [if it is not a money bill] for reconsideration of the Parliament. If the bill is passed again with or without amendment he has to give his assent to the bill.

Article 123 talks about the presidential powers to promulgate ordinances.

 An ordinance can be promulgated if:

• neither of the House of the Parliament is in session; • President feels a need for immediate action.

The ordinance which is promulgated by the President will have same effect as that of an act or law of the Parliament.

In A.K. Roy v. Union of India, AIR 1982 SC 710 the Supreme Court held that ordinance would be subject to the test of vagueness, arbitrariness, reasonableness and public Interest.

By A.143 President can seek the advice of Supreme Courts on: matters related to legal, constitutional and national importance.

A.72 mentions the pardoning powers of the President. President can grant pardons, respites, reprieves, remissions of punishments or remit, suspend or commute the sentence given to a person by the court.

In Maru Ram v. Union of India, (AIR 1981)1 SCC 107, Supreme Court held that pardoning power under A.72 is to be exercised by the President on the advice of the Central Government (advice is binding).

In Epuru Sudhakar v. Government of Andhra Pradesh, AIR 2006 SC 3385- Supreme Court held that pardoning power of President (A.72) and of Governor (A.161) are subject to judicial review.

In India the pardoning power can be exercised before, during or after a trial.

EMERGENCY POWERS:-

Part XVIII from A.52 to 360 of the Constitution vests President with enormous Emergency Powers. He can proclaim or promulgate three types of emergencies :- National(A.352),State or Presidential rule(A.356),Financial(A.360). This power of President works according to the procedure mentioned in the constitution and is again dominated by A.74.

VETO POWERS:-

The power of Veto refers to the power of the executive to override any act of the legislature. This is a very special privilege. Veto power can of the following types [26]

  1. Absolute Veto – Withholding of assent to the Bill passed by the legislature. In 1954, by President Dr.Rajendra Prasad in case of PEPSU Appropriation Bill. In 1991, by President R.Venkataraman in case of Salary, Amendments and Pension of Members of Parliament (Amendment) Bill. 
  2. Qualified Veto – Which can be overridden by the legislature with a higher majority.
  3. Suspensive Veto – Which can be overridden by the legislature with an ordinary majority. Officially used once by President APJ Abdul Kalam in case of Office of Profit Bill.
  4. Pocket Veto – Taking no action on the Bill passed by the legislature. Used once by President Zail Singh in case of Indian Post Office (Amendment) Bill in 1986.

PROTECTION OF PRESIDENT

In Part XIX Article 361[27] provides that the President is not answerable to any court during his term of office. Cl. 2- No criminal proceedings can be initiated against them during his term. Cl.3 -No process for their imprisonment will be issued during their term of office. Cl.4 –No civil proceedings can be initiated against them without giving a prior notice of 2 months.

POSITION OF THE PRESIDENT

The position of the President has changed with respect to his discretion to use of his power since the inception of the Constitution.

The two major changes came through the 42nd CAA,1976 and 44th CAA,1978 of the Constitution.

Prior to the 42nd Amendment Act of 1976 :-

President was free to make decisions based on his wisdom. He may also consider the Council of Ministers for their advice on the action. Constitution at that time talked about constituting a Council of Ministers with a Prime Minister, as its head, to aid and advise the President in carrying out his duties.

After the 42nd Amendment Act, 1976-

Constitution was amended to add the phrase that the President shall act on the aid and advice of the council of ministers.

But the provision was still ambiguous whether the advice given by the Council of Ministers is binding on the president or not.

44th Amendment Act, 1978 :-

This amendment was brought to swipe off the ambiguity created by the 42nd amendment.

This provision said that:

• President can send back the advice to the Council of Ministers for reconsideration once;

• If the same advice is sent again without modifications by the Council then the President is bound to accept it.

Under A.74 President became bound to act on the aid and advice of the Council of Ministers becoming just a nominal or constitutional head[28].

In India, the constitution establishes a Parliamentary form of Government as distinguished from the Presidential form of Government found in America. In a Parliamentary form of Government, the President is just a formal/nominal/de jure/constitutional head and the real executive powers vest with the Council of Ministers. On the other hand, the American President is both the head of the government and head of state and is vested with more power than the Indian President.

CONCLUSION

The Indian President thus finds mention in Part V of Indian Constitution. He is vested with extensive powers but in real he has to exercise all his powers on the aid and advice of Council of Ministers and he is bound by such advice. He/She is just a constitutional/nominal/formal/ de jure head and the real powers are vested in India with the Council of Ministers and the Indian Prime Minister is the real head or de facto head. Indian President is different from the American President as American President is lot more powerful than the Indian President, he is both the head of state and head of government. Though it cannot be said that Indian President is just a rubber-stamp as he still after being bound by Article 74 has extensive powers of his own, for example:- he can exercise veto powers. He is regarded as the first citizen of India and the post of President is highly revered and is a very prestigious position. Indian President is a matter of pride for all citizens of India even though 44th CAA,1978 changed his position.


[1] Which Country Has The Longest Written Constitution In The World? – WorldAtlas (Visited on August 1,2022)

[2] Anoopam Modak(ed.), The Constitution of India Bare Act Diglot Edition [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[3] Dr. Surendra Sahai Srivastava(ed.), Dr. J.N. Pandey, Constitutional Law of India, Page number 505 [Central Law Agency, Prayagraj (Allahabad) 58TH EDN.,2021]

[4] Droupadi Murmu reveals her original name during interview; says teacher in school changed it (timesnownews.com)[Last updated:- Monday, July 25,2022,04:35 PM(IST)]

[5] Draupadi Murmu, India’s 15th President: Draupadi Murmu Takes Oath as 15th President of India – Careerindia[Last updated:- Monday, July 25,2022,12:36(IST)]

[6] Draupadi Murmu: Lesser known facts about the 15th President of India – Times of India (indiatimes.com)(Visited on August 3, 2022)

[7] Draupadi Murmu Biography: Family, Education, Achievement, Past Work (indiaonlinepages.com)(Visited on August 3,2022)

[8] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 24, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[9] Dr. Surendra Sahai Srivastava(ed.), Dr. J.N. Pandey, Constitutional Law of India, Page number 500 [Central Law Agency, Prayagraj (Allahabad) 58TH EDN.,2021]

[10] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 24, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[11]Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 24, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[12] Constitution (126th Amendment) Bill, 2019 | Current Affairs (iasparliament.com) (Visited on August 4,2022)

[13] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 24, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[14] Dr. Surendra Sahai Srivastava(ed.), Dr. J.N. Pandey, Constitutional Law of India, Page number 505 [Central Law Agency, Prayagraj (Allahabad) 58TH EDN.,2021]

[15] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 27, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[16] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 25, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[17] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 25, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[18] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 26, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[19] Dr. Surendra Sahai Srivastava(ed.), Dr. J.N. Pandey, Constitutional Law of India, Page number 501 [Central Law Agency, Prayagraj (Allahabad) 58TH EDN.,2021]

[20] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 26, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[21] Dr. Surendra Sahai Srivastava(ed.), Dr. J.N. Pandey, Constitutional Law of India, Page number 502 [Central Law Agency, Prayagraj (Allahabad) 58TH EDN.,2021]

[22] Dr. Surendra Sahai Srivastava(ed.), Dr. J.N. Pandey, Constitutional Law of India, Page number 505 [Central Law Agency, Prayagraj (Allahabad) 58TH EDN.,2021]

[23] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 26, [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[24] Dr. Surendra Sahai Srivastava(ed.), Dr. J.N. Pandey, Constitutional Law of India, Page number 506 [Central Law Agency, Prayagraj (Allahabad) 58TH EDN.,2021]

[25] Dr. Surendra Sahai Srivastava(ed.), Dr. J.N. Pandey, Constitutional Law of India, Page number 507-516 [Central Law Agency, Prayagraj (Allahabad) 58TH EDN.,2021]

[26] Veto Powers of the President of India – Comprehensive Notes – Civilsdaily (Visited on August 6,2022)

[27] Anoopam Modak (ed.), The Constitution of India Bare Act Diglot Edition, Page number 171 , [Whitesman Publishing Co.,Delhi, 2022 ed. (amended up-to-date, dt. August 19,2021)]

[28] Dr. Surendra Sahai Srivastava(ed.), Dr. J.N. Pandey, Constitutional Law of India, Page number 516-520 [Central Law Agency, Prayagraj (Allahabad) 58TH EDN.,2021]


Author: Sonakshi Misra


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s