[Polity] The Union Executive : The President of India [Part -1]

Union Executive 

• India is a democratic republic with a parliamentary form of government. The government  at the Central level is called ‘Union Government’ and at the State level it is known as ‘State Government’. 

• The Union Government has three organs – the Executive, the  Legislature and the Judiciary . The President, the Prime Minister and his Council of Ministers collectively constitute the Union Executive.

 
The President of India : 

Article 52 states that there shall be a President of India. The executive powers of the Union shall be vested in the President. He, as the head of a state, symbolises the nation. In some democratic systems, the head of the state is also the head of the government and, therefore, he will also be the head of the political executive. The US Presidency represents this form. In Britain, the monarch is the symbolic head, representing the British nation. The powers of the Government are vested in the political office of the Prime Minister. In Indian Parliamentary democracy we have adopted the latter form. The President of India is the first citizen and represents the Indian nation and does not, therefore, belong to any particular political party. He is elected by the representatives of the people through an Electoral College.

Qualifications of the president  (Article -58) :

(1) 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.

(2) 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:- For the purposes of this article, 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.

Election of President (Article -54) :

The President shall be elected by the members of an electoral college consisting of – 

(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States. 

Explanation:- In this article and in article 55, “State” includes the National Capital Territory of Delhi and the Union territory of Pondicherry.

Value of vote of 1 MLA = (Population of state as per 1971 census) / (Total number of elected MLAs * 1000). 

UP has highest vote value per MLA and Sikkhim has lowest.

Resignations of President :-

1. He submits resignation to vice president.

Impeachment :- 

1. Any house may float the charge (with ≥ 25% of the members of the house signing it and giving 14 days notice) before the other house. 
2. An impeachment is a quasi-judicial process  
3. The other house then may investigate itself or may cause it to be investigated. Finally it has to pass it with ≥ 2/3rd majority of the total strength of the house. 

 Term of office of President (Article -56) :

1.  The President shall hold office for a term of five years from the date on which he enters upon his 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 office until his successor enters upon his office.

2. Any resignation addressed to the Vice-President under clause (a) of the proviso to clause (1) shall forthwith be communicated by him to the Speaker of the House of the People.

POWERS OF THE PRESIDENT :-

Administrative Powers :

Appointments made by president :

1. CAG, CEC & other ECs, judges of SC and HCs. 
2. Attorney-general.
3. Finance commission & UPSC.
4. Water supplies commission.
5. A special officer for linguistic minorities.
6. Lower bureaucracy only on advice of UPSC. If he fails to accept advice of UPSC then he has to explain the reasons in the parliament. Similarly the removal also is regulated.

Removals made by president :

1. Attorney-general.
2. Chairman or member of UPSC or SPSC (on report of SC).
3. CAG, judge of SC or HCs, CEC or ECs (on address of parliament).

SC/ST Powers

Appointments made

4. A special officer for SC/ST.
5. A commission to report on administration of scheduled areas.
6. A commission to investigate into the condition of backward classes.
7. After every 10 years, he has to appoint a ST commission in the states.

Laying reports before the parliament :

1. Report of the special officer for SC/ST.
2. Report of the commission on backward classes.

SC/ST schedules :

1. He may amend the schedules of notified SC/STs in union or any state. If the state list is amended, he has to consult the governor of the state.

Direct administration :

1. He has special powers in scheduled areas of Assam.
2. He can declare / modify the list of scheduled areas (5th schedule)
3. He may establish a tribal council in ST areas or scheduled areas.
4. All regulations made by the governor of state for the scheduled areas have to be submitted to the president and failing his assent shall not have any effect.
5. He may ask the governor to submit a report on the administration of scheduled areas and instruct him on administrative manners.

Military Powers :

1. Art 53: Though the president can declare war or make peace, such an action can be regulated by the parliament. All treaties have to be ratified by the parliament.
2. Expenditure on military forces and their training can't be done without approval of parliament.

Legislative Powers :

Veto Powers :

1. Absolute veto: PEPSU (Appropriation) Bill, 1956 and Indian Post Office (Amendment) Bill, 1986.
2. Suspensive veto: Office of Profit (Amendment) Bill, 2006.
3. Pocket veto: Indian Post Office (Amendment) Bill, 1986, Salaries, Allowances and Pensions of MP (Amendment) Bill, 1991.
4. If the bill is an ordinary or financial bill, all 4 options (assent, reject, reconsideration and pocket) are available.
5. If the bill is a money bill, he can only accept or reject.
6. If the bill is a CA bill, he can only accept.

Discretionary Powers :

1. A caretaker government is not supposed to take important policy decisions. President decides what constitutes a policy decision.
2. He can decide not to dissolve the HoP on advise of a minority government.
3. He can refer back an advise from an individual minister for the collective consideration of the CoM.
4. He can also refer back an advise of the CoM once with or without suggestions.
5. He can seek information from PM on any state matter.
6. He can warn / send a message to the CoM and the parliament.
7. He can call the session of parliament if the CoM doesn't advise him to do so within 6 months. He can also dissolve the HoP at the end of its term if the CoM doesn't advise him to do so.

Nominated members of CoS :

1. Art 80: He can nominate 12 members in CoS on basis of lsas (literature, science, arts, social service).

Ordinance making powers (Article 123) :

1. He can make ordinances only on matters where parliament is capable of passing laws in its legislative capacity (and not constituent capacity).
2. This power has to be exercised only on advice of CoM only when at least 1 of the houses of the parliament is not in session. For an ordinance, the president must be satisfied that conditions exist for immediate action. The misuse of this provision is checked by two provisions - (a) While laying down the ordinance before the parliament, he also has to explain the reasons necessitating such action. (b) The intention can't be malafide and is subject to judicial review (Cooper case). By 42nd CA Act, 1976 it was provided that president's satisfaction shall be final and non-judicable. But by 44th CA Act, 1978 this provision was struck down and observations from Cooper case hold.
3. An ordinance has to be laid before the parliament and will cease to have effect 6 weeks from the date of commencement (of the house commencing later) or struck down earlier by the parliament.

Laying Reports before Parliament :

He causes the following reports to be laid before the parliament:

1. Annual budget.
2. CAG report.
3. Finance commission report together with explanation of action taken.
4. UPSC report together with explanation of non-compliance.
5. Report of special officer for SC/ST.
6. Report of the commission on backward classes.
7. Report on the special officer for linguistic minorities.

Previous sanction to bills before parliament :

1. A bill for the alteration of existing states / new state formation.
2. A money bill or any bill seeking expenditure from CFI even if it is not a money bill (Art 117). Annual financial statement and demand for grants have to be recommended by him.
3. A bill affecting taxation in which states are interested or affecting principles for distribution of revenues among the states (Art 274).
4. State bills imposing restriction on the freedom of trade (Art 304).

President on UTs :

1. Not only does he administer UTs through an Administrator but in case of Andamans, Lakshadweep and Dadar & Nagar Haveli he has ultimate law making powers as well (can even overrule parliament).

President on state bills :

1. Even a money bill of a state can be reserved in which case the president may declare assent or withhold assent (Art 200). In case of other bills, he can additionally refer it back to the legislature for reconsideration (Art 201).
2. On matters where a state bill requires prior presidential assent he can instruct the governor to promulgate an ordinance.

Pardoning power :

Kehar Singh case guidelines by SC on presidential pardons

1. The convict has no right to seek oral hearing before the president.
2. President has to act on advice of CoM. Such an act is open to limited judicial review only when it is arbitrary, discriminatory or completely irrelevant to the case.
3. No further guidelines for the exercise of the power need to be laid down.

Delays in presidential pardons :

1. Pardon is no more an act of grace but a constitutional duty which needs to be discharged only if doing so furthers public welfare. In the days of English King it was considered an act of grace by the king. However US Supreme Court held that it is no more an act of grace but a duty on executive which if granted amounts to the determination public welfare was better served by pardoning than by not pardoning.  

Supreme Court's Views on delays in presidential pardons

1. Earlier the SC held that a delay by the executive by more than 2 years amounts to violation of Article 21 and in that case the death sentence must be quashed.
2. In another case the court decided that deciding on mercy petitions was a constitutional duty of the executive which must be speedily discharged.
3. In 1989, a constitutional bench while confirming the constitutional duty bound obligation on the executive and overruling the 2 year limit held that it should be decided in a reasonable time. The court also held that delay in the execution can take place due to two reasons: delay in pronouncement of the sentence and delay in deciding on the mercy petition. While the former is ok since it is to ensure a fair trial to the accused, the latter causes more harm and cannot be justified.
4. In 2009 the SC once again reminded the government of its constitutional obligation. 

Different types of pardons

1. Pardon: It rescinds both the sentence and the conviction. It means that the accused is innocent. It can be conditional or unconditional. It can be granted before, during or after the trial.
2. Commutation: It substitutes a punishment with another of a lighter character. Examples, death --> rigorous imprisonment --> simple imprisonment --> fine.
3. Remission: It reduces the amount of the sentence without reducing its character.
4. Respite: Awarding a lesser statement than one prescribed in view of a special fact like ill health or pregnancy.
5. Reprieve: It means a stay on the execution of a sentence pending the mercy petition.

Presidential powers (Article 72) vs Governor's powers (Article 161) :

1. On a court martial case, only president can pardon.
2. On an offense involving central law (or concurrent law) or executive power of center only president can pardon. On an offense against state law or executive power of state only governor can pardon.
3. President can pardon death cases. Governor can only commute a death case involving state laws only.

Death Sentence :

1. It is given only in rare cases where the murder was committed in a brutal, diabolical and dastardly manner.

Emergency Powers :

1. Article 352: Emergency can be declared in any part (or whole) of India on grounds of war, external aggression or armed rebellion (44th CA Act, 1978 changed 'internal disturbance' to 'armed rebellion').
2. Article 356: If the governance of the state can't be carried according to the provisions of the constitution.
3. Article 360: Financial emergency applicable in any part (or whole) of India.