Power and Position of President ? (2018)

Power and Position of President ? (2018)

The President  is the Head of State of India, and supreme commander of armed forces. the President is the nominal executive or a Constitutional ruler. He is the head of the nation, but does not govern the nation. Our Union Council of Ministers headed by the Prime Minister is the real executive. And the President rules the country on the advice of the Prime Minister and his colleagues. The powers and the functions of the President of India may be classified under five heads,

  1. executive,
  2. legislative,
  3. financial,
  4. judicial
  5. emergency.

Executive powers

Article 53(1) vests the executive power of the union in the president. All executive actions of the Government of India and all contracts and assurances of the property are made by the Government of India are formally taken in the name in president.

Appointments made by president

President of India makes appointment to other constitutional officers and other important members of union government. These include:

  • Prime Minister
  • Other ministers on advice of Prime Minister
  • Chief Justice of India
  • Other Judges of Supreme Court on advice of the Chief Justice
  • Chief Justice and other judges of high courts
  • Chairman and other members of UPSC and Joint Public Service Commissions
  • Attorney General of India
  • Comptroller and Auditor General of India
  • Chief Election Commissioner and other members of election commission
  • Governors of states
  • Administrators of Union Territories
  • Chairman and members of National Commission of Scheduled Caste
  • Chairman and members of National Commission of Scheduled Tribes
  • Finance Commission chairman and members
  • Central Chief Information Commissioner
  • Central Vigilance Commissioner
  • Chairperson of National Human Rights Commission
  • Union Lokpal Chairman and its members on recommendation of selection committee

At the same time, also note that:

  • Chairperson of National Commission of Women is notappointed by President but by Central Government.
  • Solicitor General is NOTappointed by President. His appointment is done by Central Government.
  • The chairman and member of state public service commissions are although appointed by Governor, the removal of any of them (chairman or members) will be done by president.

Role of Council of Ministers in Executive Powers

The executive powers vested in the president have to be exercised in accordance with the advice of the Council of Minister as per Article 74(1). However, he has the power to send back the advice to council of Ministers for reconsideration. If the council of Ministers adheres to the previous advice, the president has to act as per this advice. This is the reason that real executive powers are with the Central Government.

Further, Article 74 (2) says that what advice was tendered by minister to the president shall not be inquired into in any court. Thus, relation between president and council of ministers are confidential and cannot be questioned in a court. Further, constitution also mentions some duties of the Prime Minister towards President in article 78. These are:

  • To communicate to the President all decisions of the Council of Ministers Regarding the administration and legislation of India.
  • To furnish such information as the President may call for.
  • To submit for the Consideration of the Council of Ministers as desired by the President.

Legislative Powers of President

President as part of Parliament

The parliament is composed of president, Lok Sabha and Rajya Sabha, thus president of India is a inseparable part of Indian Parliament despite not being member of any house.

Power to summon, prorogue two houses of parliament

President has power to summon or prorogue {Prorogue means discontinuing without dissolving. It refers to end of a session of parliament) the two houses of parliament. After a prorogation, the house must be summoned within 6 months. The President may dissolve the Lok Sabha. (Rajya Sabha is never dissolved). After the general Elections, president addresses both the houses of the parliament. He may address either house or a joint sitting.

Nomination of MPs

President nominated 2 members of Anglo Indian Community in the Lok Sabha (Article 331). He also nominates 12 members of Rajya Sabha if they excel in Art, Literature, Science, Social Science, Culture etc. (Article 80)

Giving assent to bills

The bills passed by the parliament become acts only after assent of president. When a bill is send to President after it is passed in parliament, President has the following options:

  • can either give his assent (he must give assent in case of Constitution Amendment bill)
  • withhold his assent if it is not a Constitution amendment bill
  • Return the bill to the parliament for reconsideration if it is not a money bill

When Parliament passes again a bill sent to it with or without amendments, the president has to give assent to that bill.

The bills passed by state legislatures are sent to governor for assent. Governor has been given power to reserve a bill for consideration of president, provided such bill is not a money bill of that state. When the governor sends such bill to president, president has the following options:

  • give his assent to the bill
  • withhold his assent to the bill
  • Direct the governor to return the bill for reconsideration of the state legislature. If the state legislature again passes the bill with or without amendments; and if the governor again sent to president, it is NOT obligatory for president to give assent to such bill.
Pocket veto

In case of an ordinary bill or a bill got introduced by a private member and passed by both houses, the president can just keep the bill in his pocket and forget it. When president neither gives assent nor returns the bill, it is also called “Pocket Veto”.  Pocket Veto is applicable to only ordinary bills. This is also called Absolute Veto.

President’s Assent in case of Constitution Amendment Bills

Before 24th amendment 1971, President could withhold assent to a Constitution amendment bill. After this amendment, it has been made clear that once passed by parliament, president has to give his assent. Thus, while president cannot block a constitution amendment bill, such bill are subject to judicial scrutiny and can be nullified by Supreme Court if they are violative of basic structure doctrine.

The President may either give or withhold his assent to a Money Bill. Under the Constitution, a Money Bill cannot be returned to the House by the President for reconsideration.

President’s assent in case of Money Bills

Money bills can be introduced in the Parliament only with prior recommendation of President. Due to this President can agree to that bill or withhold his assent but can NOT return a money bill to the house for reconsideration.

The bills that need prior recommendation of President

The bills that need prior recommendation of the president for introduction in parliament are as follows:

  • Any bill that seeks to alter the boundaries of the states and names of the states. (Article 3)
  • Money Bill (as per Article 110)
  • Any bill which affects the taxation in which the states are interested (Article 274)
  • State Bills which impose restriction upon freedom of trade (Article 304).

Financial Powers of the President of India :
(i) No money-bill can be presented it the Lok Sabha without the President’s prior permission.
(ii) Budget of the Central Government is presented to Lok Sabha by the Union Finance Minister only with the permission of the President.
(iii) He appoints Finance Commission after five years or earlier of there arises such a need.
(iv) He distributes the shares of the Income Tax between the union and the States. All these powers of the President are however, exercised by him only on the advice of the Cabinet.

(V) the President can take advances out of the Contingency Fund of India to meet unforeseen expenses.

Judicial Powers / Power to Pardon

Article 72 says that the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The meaning of these terms is as follows:

  • Pardon:Complete pardon
  • Reprieve:Temporary suspension of sentence
  • Respite:awarding less sentence
  • Remission:Reducing amount of sentence
  • Commutation:Changing one punishment to another


Comparison of Pardoning Power of President and Governor

Governor also has powers to pardon under article 161.  However, while president can grant pardon to a person awarded death sentence; governor does not enjoy this power. Governor can commute death sentence to some other kind of sentence.

Role of Union Government and Supreme Court in Pardoning Power

Power to grant pardon is not absolute and is exercised by the President on the advice of Council of Ministers like any other powers. Further, the power to pardon is subject to judicial review and Supreme Court retains the power of judicial review even on matters which has been vested by the Constitution solely in the Executive.

Military Powers of President

Article 53 vests the supreme command of the Armed Forces of India in the President. President of India can declare war or conclude peace, under the regulation by the parliament.

As the Supreme Commander of the Indian Armed Forces the President plays the following role:

  • He appoints the chiefs of defence forces
  • The country declares war in the name of the President.
  • The country also concludes peace in the name of the President


Diplomatic Powers of President

India is represented on International forum by President of India. He sends and receives ambassadors.

All international treaties and agreements are concluded on behalf of the President subject to ratification by the parliament.

The President of India plays a vital role in maintaining diplomatic and cordial relationships with other countries across the globe.

  • The country’s ambassadors and high commissioners are his representatives in foreign land.
  • He also receives the credentials of diplomatic representatives of foreign countries.
  • The President also negotiates treaties and agreements with other nations prior to ratification by Parliament.


Emergency Powers

President has been conferred upon by extraordinary powers in case of national emergency (Article 352), President’s rule (Article 356 & 365) and financial emergency (article 360).

Emergency Powers: The President of India exercises extra-ordinary powers in times of emergency. The three kind of Emergency situations are:

  1. Emergency due to armed rebellion or external aggression;
  2. Emergency arising from the breakdown of constitutional machinery in a State;
  3. Financial Emergency.

Proclamation of National Emergency by the President of India: The President of India may issue a Proclamation of National Emergency when the security of India or any part thereof is threatened by war, armed rebellion or external aggression. Such a Proclamation of Emergency may remain in force for an indefinite period. During a Proclamation of National Emergency, the executive power of the States is to be exercised in accordance with the directions given by the Central Government. Parliament has the power to make laws on the subjects enumerated in the State List. The right to freedom of speech and expression, freedom to form association, freedom to practice and profession, etc., embodied in Article 19 shall remain suspended.

Failure of State Constitutional Machinery: In Case of failure of Constitutional machinery in a State, the President of India is authorized to make a Proclamation to that effect. The maximum duration of this type of emergency is three (3) years. During such an emergency, the President may assume to himself the executive powers of the State. The powers of the legislatures of the State are to be exercised by the Union Parliament.

Proclamation of Financial Emergency by the President: The President may also issue a Proclamation of Financial Emergency if he is satisfied that the financial stability of India is threatened. This type of emergency may continue to remain in force for an indefinite period. The Central Government may give directions to the States for canons of financial propriety. All money-bills passed by the State Legislatures are to be reserved for the consideration of the President.


Ordinance Making Powers of President

Parliament is not always in session and when it becomes necessary to have a law on some urgent public matter, the constitution via article 123 provides the power to the president to issue ordinances if he is satisfied with the circumstances of issuing such ordinance.  Ordinances are promulgated when parliament is not in session.

The ordinance has similar effect to an act of parliament. However, every ordinance must be laid before both houses of the parliament within 6 weeks  from the reassembling of the parliament. If it is not placed in parliament within 6 weeks from reassembly, it becomes invalid.  If it does not get approval of parliament, it becomes invalid. However, it may be withdrawn by the president.

Maximum Possible Life of an Ordinance

An ordinance is in force as long as parliament does not meet. But, there cannot be a gap of more than 6 months between two meetings of parliament. Further, a time of 6 weeks is given after the parliament reassembles. So, 6 months + 6 weeks =71/2 month is maximum possible life of an ordinance.

Reports and Statements get by President to be laid before parliament:
  • Annual Financial Statement
  • Reports of Auditor General
  • Annual report of UPSC and JPSCs
  • Reports of Finance Commission
  • Reports of Special officers of SC & ST
  • Report of the Special officers of Linguistic Minorities and Backward Classes





Thus the President of India has been given wide and far-reaching powers which he enjoys both during

normal and emergency times. But after the passing of the Constitution Forty-Second (1976) and Forty-

Fourth (1978) Amendment Acts, the President of our Republic has become a Constitutional 􀂡gurehead and

nothing beyond that.

Today, President’s position is one of great authority and dignity, but at the same time strictly constitutional.

Thus the President is bound in every case to act on the advice of his Prime Minister and other Ministers

who are responsible to the Lok Sabha and responsive to the public opinion.

In short, the powers really reside in the Ministry and the Parliament and not in the President as such. He has

no discretion in our Parliamentary system of government.

The Supreme Court through various decisions has upheld the position that the President is a constitutional

head and as such he is as much bound by the advice of his Ministers during emergency as during normal


For example, the President can declare a proclamation of the National Emergency (Article 352) only after

receiving a written communication of the decision of the Union Cabinet. If the President abuses his powers,

he can be removed from o􀂣ce by a process of impeachment.

It does not, however, mean that the President of India is a magni􀂡cent cipher or a mere rubber stamp.

Unlike the British Monarchy which is hereditary, the President of our Republic is an elected Head of the

State. In our coalition politics, there are some grey areas where the President may still have to use his own

judgment and wisdom. These are:

Appointment of the Prime Minister,

Dismissal of the Union Ministry,

Dissolution of the Lok Sabha, and,

Seeking information on all matters of administration and legislation from the Prime Minister etc.

In some such situations, the role of our President may become most crucial and decisive. However, the

President has to be free from all political a􀂣liations. He is expected to act with complete constitutional

rectitude and impartiality. The nation is expected to be bene􀂡tted by his wise leadership and constructive


In short, the President of India is the symbol of national unity, magnet of loyalty and apparatus of ceremony


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