President of India

President of India

This article deals with ‘President of India .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Constitutional position of President

  • India has Parliamentary form of government . President is made only Nominal Executive , Real Executive being the Council of Ministers
  • BR Ambedkar in Constituent Assembly –  President occupies same position as King in UK
  • Nehru : “We did not give him any real power but we have made his position one of authority and dignity. “
  • Presently, in age of Coalition Governments his importance has increased as he has discretion to choose PM

Process to elect President of India

  • Electoral College to elect the President consist of
    1. Elected members of both Houses of Parliament
    2. Elected members of the Legislative Assemblies of States and UT of Delhi and Pondicherry
  • Value of MLAs vote = (Total Population of State/Number of elected members to Assembly)/1000
  • Value of MPs (Rajya Sabha  & Lok Sabha both) vote = (Total Value of all MLAs of all States / Total number of elected MPs in both Houses of Parliament)
  • Vote occur according to process of Proportional Representation by means of Single Vote Transferrable using Single Ballot
  • Quota = (Total number of valid votes/2)+1
  • To win one have to achieve above quota
  • All disputes regarding election are challengeable in Supreme Court only
  • Can’t be scrapped on grounds that Electoral College is incomplete

Note – In Indian History, only once voting went to the Second Stage when VV Giri (Rebel Indira Faction of Congress) became President (1969) against NS Reddy (he too became President in 1977 when he was elected uncontested) 

Why Indirect Election is used to elect President

  • President is only nominal head
  • Conform with Parliamentary form of Government
  • Very costly due to huge size of India
  • Illogical to have proper election and not giving power after that

Qualifications to become President

  • Person should be
    1. Citizen of India
    2. Above 35 years in age
    3. Qualified to be Member of Lok Sabha
    4. Don’t hold any Office of Profit under Union or State Government

Supreme Court’s Ruling –  President or VP or Governor or Minister of Union or state is not office of profit 

Term of office

  • 5 years but office can’t fall vacant and same person can be re-elected any number of times (unlike USA)

Impeachment Process

  • President can be impeached for violation of Constitution (although what violation of Constitution is, is not defined by Constitution)
  • Process can initiate in any house of Parliament
  • Resolution must be signed by 1/4 members of house and 14 day notice given to President
  • Then must be passed by 2/3 majority of Total Members (present and voting) in both houses
  • President has right to defend himself during whole process
  • NoteNominated MPs participate in impeachment & elected members of State Legislature don’t participate **
  • This is Quasi Judicial function of Parliament

Vacancy in the office of President

  • Can occur due to
Expiry of his tenure Impeachment
By Resignation Death
When his election declared void  
  • Election of next President occur before expiration of his term
  • If any delay occur in conducting election , outgoing President continue to hold office even beyond 5 years
  • In case of Death or resignation – new election within 6 months & next President gets his full 5 years term
  • In Case of vacancy who fill office – Vice President >> Chief Justice of India >> Seniormost Judge of Supreme Court

Various powers of President

1 . Executive Powers

  • All Executive actions  are taken in his name formally.
  • He can make rules specifying manner in which orders & other instruments made & executed in his name should be authenticated.
  • Can make rules for more convenient transaction of business of Union Government & for allocation of said business among Ministers (MCQ 2014)
  • Appoints Prime Minister and Council of Ministers, CAG, Attorney General,Chief Election Commissioner and Election Commissioners, Chairman and Members of UPSC, Governors of States, Chairman of Finance Commission and so on
  • Can seek any information relating to administration of affairs of Union & proposals for legislation from Prime Minister
  • He can require Prime Minister to submit for consideration of Council of Ministers , any matter on which decision has been taken but matter not considered by Council
  • Can appoint Commission for SC,ST and BC and Inter State Council
  • Directly administers UTs through Administrators appointed by him
  • Can declare any area as Scheduled Area and has powers wrt administration of Scheduled and Tribal areas

2. Legislative powers

  • Can summon or prorogue Parliament and dissolve Lok Sabha and can also summon Joint Session of both houses
  • Can address Parliament at commencement of session of each year & new house
  • When office of Speaker & Deputy Speaker  are VACANT  not present can appoint any member to Preside in Lok Sabha  & similarly in Rajya Sabha
  • Nominate 12 members to Rajya Sabha
  • Can nominate 2 members to Lok Sabha from Anglo Indian community
  • Decide on disqualification of any Member of Parliament with Election Commission
  • Certain types of bills require his permission to be introduced
  • Can promulgate ordinances when both houses are not in session
  • When bill is passed by both houses ,it require his consent to become act. He can do three things –
    1. Give Consent ,
    2. Withhold Consent or
    3. Send back for reconsideration

but if Parliament send it back with or without Amendments , he has to give consent

  • But when Governor send  bill to President, he can send it back as many number of times as he wish

3. Financial powers

  • Money Bill can be introduced only after taking his recommendation
  • He causes to be laid before Parliament Annual Financial Statement (AFS)
  • Can make advances out of Contingency Fund to deal with unforeseen condition
  • Constitute Finance Commission after  5 years or before

4. Judicial powers

  • Appoints Chief Justice and Judges of Supreme Court &High Courts
  • Can seek advice from Supreme Court on any question of law but that advice is  not binding on him (Article 143)
  • Can grant Pardon, Reprieve, Respite, Remission or Commute when punishment is by court martial or for offence against Union Law or Death Sentence

5. Diplomatic Powers

  • International Treaties are concluded in his name
  • Represent India in International Forums
  • Send and receives Ambassadors and Diplomats

6. Military Powers

  • Supreme Commander of Indian Armed Forces
  • Appoints Chief of Army , Navy and Air-force
  • Can declare war and conclude peace subject to Parliamentary approval

7. Emergency Powers

  • To deal with unforeseen conditions, can  declare emergency-National, Presidents Rule  & Financial Emergency .

Presidential Discretions

  • President can send back the advice given by the Council of Ministers and ask the Council to reconsider the decision.
  • President also has veto power that he can send back the bill passed by Parliament for reconsideration . (This ‘veto’ power is limited because, if the Parliament passes the same bill again , then, the President has to give assent to that bill) 
  • There is  no mention in the Constitution about the time limit within which President must send the bill back for reconsideration. This means that the President can just keep the bill pending with him without any time limit. 
  • In some cases, President has situational discretion (above are constitutional discretions)
    • Appointment of PM when no Party has clear majority or when PM in office dies suddenly & there is no obvious successor
    • Dissolution of Lok Sabha when Council of Ministers has lost its majority

In era of Coalition governments since 1989, there is greater scope for presidential assertiveness when governments are not stable and coalitions occupy power.

Assertive Presidents

  • President’s position is comparable to British Monarch but he is elected and not hereditary  
  • In case of clear cut majority , President doesn’t have much autonomy. But his position becomes very important at the times of unstable coalition governments
    • President KR Narayanan  returned advice of Council of Ministers twice to reconsider it. Once regard to  imposition of State Emergency in Bihar (1997)  & state of Emergency in UP (1998). 
    • President Zail Singh insisted Rajeev Gandhi for regular communication with the President under Article 78
    • Dr APJ Abdul Kalam asked to review advice regarding issuance of Ordinance for Amending Represemtation of People Act .

But apart from that, President has to act on advice of Council of Ministers. This fact was well understood from the times of first President Dr Rajendra Prasad , when he had reservations about Hindu Code Bill and First Constitutional Amendment . But he was advised by the Attorney General that President has to go by advise of Council of Ministers.

Question : Is President a rubber stamp?

Rubber stamp, as a political metaphor, refers to a person or institution with considerable de jure power but little de facto power; one that rarely or never disagrees with more powerful organs.

Arguments which prove that he is a rubber stamp

  • President works on aid and advise of Council of Ministers.
  • All the appointments done by President are done according to the recommendation of Council of Ministers.
  • 42nd Amendment made it clear that advice of Council of Ministers is binding

But, following points prove that he is not mere rubber stamp and has more ideological role to play

  • Constitutional discretions like Veto Powers , power to send advice of Council of Ministers for reconsideration etc acts as check on hasty decisions which are prima facie incorrect or illegal.
  • Situational discretion to select PM when no party wins clear majority. In age of coalition government, this has become imp
  • His speeches like Speech before Republic Day have great power to send message to whole nation.
  • President is ever present authority, for parliamentary governments could fall anytime

Whether he will act as rubber stamp or not depends on personality of President as well. We have example of assertive Presidents like RK Narayanan & Giani Zail Singh as well who didn’t allow themselves to be used as rubber stamps .

Hence, we can say that although President in India is not as powerful as President of USA due to fact that India has parliamentry form of government . But he is not a rubber stamp as he has more ideological role to play.

Veto Power of President

Bill becomes Act only when it receive President’s assent

But when bill reaches President, he has three options 

  • Can give assent,
  • Can withhold assent or
  • Can return  it for reconsideration

( but if Parliament again passes it with or without amendment then President has to give assent )

1 . Absolute veto

Withholding of assent to bill passed by legislature and bill then ends and not become an act

Indian President has this veto

  • Wrt Private Member’s bill
  • When Cabinet resigns after passing bill and new cabinet advises not to give assent

2. Qualified veto

  • Can be overridden by Legislature with a higher majority
  • Not present in India but American President  empowered with this .  First bill can be passed by 1/2 majority but if sent back then have to pass by 2/3rd Majority

3. Suspensive veto

  • Can be overridden by Legislature with Simple Majority
  • Indian President has this
  • When any bill except Money Bill comes to President for approval, he can send it back for reconsideration but if Parliament again passes it ,then he has to give approval

4. Pocket veto

  • Taking no action on bill passed by Legislature
  • Indian President has  this
  • In all bills, President can send Bill for reconsideration to Parliament . But there is no mention in the Constitution about the time limit within which the President must send the bill back for reconsideration (unlike USA where time is 10 days).
  • Exception – For any Constitutional Amendment,  President has to give assent (added by 24th Amendment,1971)

Use of Pocket Veto :  1986, => Indian Post office (amendment) bill (curtail the freedom of press) =>  President, Giani Zail Singh 

In case of state too, President has veto power

When bill passed by State Legislature is presented to Governor , he has 4 options

  • Can give Assent
  • Can withhold his Assent
  • Can return the bill for Reconsideration
  • Can reserve bill for consideration of President

After receiving bill from Governor, President has three options

  • Can give his Assent
  • Can withhold his Assent
  • Can direct Governor to return bill for reconsideration . But if Legislature again passes it and send to President for his assent ,  President is not bound to give assent . He has Absolute Veto in this Case 

Punchhi Commission Suggestion : Issue here – Bills so submitted to President sometimes are indefinitely retained at the Central level  allowing the democratic will of the State Legislature to be restricted  . President should decide consenting or withholding assent in reasonable time of six months 

Ordinance  Making  Power of  President

  • Article 123 – (same powers to Governor under Article 213)
  • President has power to promulgate Ordinance which has same power as Act but temporary in nature
  • To deal with unforeseen conditions.


  • Can be promulgated only when both Houses of Parliament are not in session ( in recess)
  • Can make only when he is satisfied that Immediate action is required
  • Can be questioned in court of law and declared malafide
  • Should be passed within 6 weeks  when house reassemble . Hence, maximum life can be 6months & 6 weeks
  • Ordinance can’t be issued to amend constitution

Why frequent resorting to Ordinance Route?

  • Reluctance to face the legislature on particular issues.
  • Lack of majority in the Upper House.
  • Repeated and wilful disruption by opposition parties.

History of Ordinance making

  • DC Wadhwa Case – same Ordinance cannot be re-promulgated again and again
  • GV Mavalankar in Constitution Assembly Debates : Ordinance are inherently undemocratic & can’t be justified except in case of extreme urgency or emergency.
  • Source from where Ordinance came to Indian Constitution (Government of India Act, 1935) ,  it was quite a non-Parliamentary provision and forced into it to nullify the powers of legislature  . But constitution makers took great care & added condition of utter emergency while promulgating Ordinance
  • In mid 80s:
    • Bihar Government began practice of issuing and renewing Ordinances at regular interval.
    • DC Wadhwa Judgement – SC declared that same Ordinance cant be promulgated again & again.

Present Examples where Ordinances were Repromulgated

  • TRAI Ordinance ,1997, SARFAESI 2002 ; Electricity regulation ordinance to name a few were promulgated in this fashion where nobody can prove that there was utter emergency 

Key debates relating to the Ordinance making powers of the Executive

Constitutionally important issues that have been raised include:-

  • Necessity for ‘immediate action while promulgating an Ordinance
  • Granting of Ordinance making powers to the Executive which is against Principle of Separation of Power
  • Repromulgating Ordinances and threat  it poses to the sovereignty of Parliament

Note :-  With regard to issuing Ordinances as with other matters, the President acts on the advice of the Council of Ministers

Pardoning Power of President (Article 72)

  • Article 72 gives this power to President
  • It gives power to Pardon, Commute , Remission, Respite & Reprieve  to President
Pardon It removes both sentence and conviction
(Note – Only President can Pardon death sentence. Governor can Commute death sentence but can’t Pardon)
Commutation Substitution of punishment with mild form of punishment  
Remission Reducing period of sentence keeping character same

Note – not applicable for death sentence  
Respite Awarding lesser sentence in place of originally awarded sentence due to special fact like disability or pregnancy
Reprieve Stay of execution of sentence for temporary period to enable convict to seek pardon or commutation from President (just stay order)

Offences covered under this

  • Punishment for offence against Union law
  • Against Court Martial
  • Sentence of Death

Person is allowed to approach President only after getting exhausted all other legal ways & when person approaches President,  he approaches with petition called Mercy Petition

  • Pardoning power is independent of Judiciary
  • Basic idea is correction of Judicial Errors
  • President doesn’t function as Court of Appeal
  • President can’t be compelled to give hearing to petitioner
  • Decision of President is final & courts can’t interfere with decisions of President .
  • But courts can look into whether he has considered all relevant material or not

Side Topic: How President decides matter of life & death

  • President does not exercise this power on his own he has to act on the advice of the CoM . 
  • View of Ministry of Home Affairs (MHA) is taken as the view of the Cabinet, & President decides mercy petition accordingly
  • There is no fixed time-frame to decide mercy petition => both  Ministry of Home Affairs and President have sometimes sat on cases for years.
  • Different President’s have decided mercy petitions differently.
    • APJ Abdul Kalam decided only two  
    • K R Narayanan  failed to decide even single mercy petition
  • Central governments is also guided by political considerations  . MHA has sometimes jumped the queue like that of Ajmal Kasab, who was hanged in 2012. 

Supreme Court Judgement regarding delay  in deciding mercy petitions as a ground for commutation

  • Under Article 72 and Article 161 ,  President and  governors respectively are given this power
  • D.D.Basu : object of the power  was to “correct judicial errors .” But unfortunately, this power  has prevented victims from receiving true justice 
  • President and Governors have to exercise their power to pardon on the advice of the Council of Ministers.
    • Since the power has not been exercised expeditiously, a large number of mercy petitions are pending with the President of India.
    • This  has resulted in unreasonable delays in the execution of the death sentences.
    • Death row convicts languish in jail for more than twenty years under constant fear of death

Judicial Cases in this regard

1 . Shatrughan Chauhan vs Union of India , 2014

  • Supreme Court commuted the death sentence of 15 convicts on the grounds of inordinate delays 
  • Supreme Court observed that the Right to seek Mercy under Articles 72 and 161 is Constitutional Right 

Argument for Commutation in case of Inordinate delay

  • Convict on death row is entitled to his fundamental rights till the execution of sentence.
  • When death sentence is awarded , he constantly lives under fear  of being executed . =>  Article 21  is violated
  • If it is   proven that  undue delay has happened in disposal of mercy petitions (ie his Article 21 is being violated), Court, by virtue of power under Article 32, can commute the death sentence into imprisonment for life.

2. Navneet Kaur v. State of NCT of Delhi and Another

  • Supreme Court commuted the death sentence of Devender Pal Singh Bhullar, to life imprisonment both on the ground of
    1. inordinate delay of eight years
    2. insanity.

Negative impact of these judgements

  • As a result of such leniency, a number of hardcore convicted offenders including the assassins of Rajiv Gandhi and close aides of the forest brigand Veerappan have been freed from the gallows.

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