The President: Powers and Position

The executive power of the Union vests in the President (Art.53), but Art.74(1) requires him to act in accordance with the advice of the Council of Ministers, subject to one power of requiring reconsideration. He is a constitutional head, with a narrow field of genuine discretion.

There shall be a President of India (Art.52), in whom the executive power of the Union is vested, to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution (Art.53). Although the language of Art.53 is wide, the President's actual position is that of a constitutional head in a parliamentary system, because Art.74(1) obliges him to act on ministerial advice.

Legal Framework

Provision	Subject	Key Rule
Art.53	Executive power	Vested in the President, exercised directly or through subordinate officers; supreme command of the Defence Forces
Art.54	Election	By an electoral college of the elected members of both Houses of Parliament and of the Legislative Assemblies of the States, including Delhi and Puducherry
Art.55	Manner of election	Uniformity in the scale of representation, proportional representation by means of the single transferable vote, by secret ballot
Art.56 and Art.57	Term and re-election	Five years, and eligible for re-election
Art.58	Qualifications	Citizen of India, completed thirty five years, qualified for election to the House of the People, and not holding any office of profit
Art.61	Impeachment	For violation of the Constitution, on a charge preferred by either House
Art.71	Election disputes	Decided by the Supreme Court, whose decision is final
Art.72	Pardoning power	Pardon, reprieve, respite, remission, suspension and commutation
Art.74	Council of Ministers	Must aid and advise; the President shall act in accordance with such advice, but may require reconsideration once
Art.78	Duties of the Prime Minister	To furnish information to the President and to submit for the consideration of the Council any matter on which a Minister has decided but the Council has not considered
Art.111	Assent to Bills	Assent, withholding, or return of a Bill other than a Money Bill for reconsideration
Art.123	Ordinance power	When either House is not in session and immediate action is necessary
Art.143	Advisory jurisdiction	Reference of a question of law or fact of public importance to the Supreme Court

Election and Removal

Election (Arts.54 and 55). The electoral college consists only of elected members; nominated members of either House and members of Legislative Councils do not vote. The value of each vote is calculated so as to secure, as far as practicable, uniformity in the scale of representation among the States and parity between the States as a whole and the Union. Voting is by the single transferable vote and by secret ballot.

Impeachment (Art.61). The ground is violation of the Constitution and nothing else. The procedure has four requirements: the charge must be preferred by either House; at least fourteen days notice in writing must be given, signed by not less than one fourth of the total number of members of that House; the resolution must be passed by a majority of not less than two thirds of the total membership of that House; and the other House must then investigate the charge and pass a like resolution by the same majority. Nominated members do participate in impeachment, although they do not vote in the election, since Art.61 refers to the total membership of the House.

Why no President has been impeached: The majority required is formidable and the ground is narrow. More fundamentally, since the President acts on ministerial advice, it is difficult to attribute to him personally a violation of the Constitution. The provision is a safeguard of last resort rather than an instrument of routine accountability.

Classification of Powers

Class	Content
Executive	Appointment of the Prime Minister and, on his advice, other Ministers (Art.75); appointment of the Attorney-General (Art.76), Governors (Art.155), Judges of the Supreme Court and High Courts (Arts.124, 217), the Comptroller and Auditor-General (Art.148), the Chief Election Commissioner (Art.324) and members of the Union Public Service Commission (Art.316); rules for the convenient transaction of business (Art.77)
Legislative	Summoning, prorogation and dissolution (Art.85); addressing and the special address (Arts.86, 87); nomination of twelve members to the Council of States (Art.80); recommendation for the introduction of certain Bills (Arts.3, 117); assent (Art.111); consideration of Bills reserved by a Governor (Art.201); Ordinances (Art.123)
Financial	Causing the Budget to be laid (Art.112); demands for grants only on his recommendation (Art.113); advances from the Contingency Fund (Art.267); constitution of the Finance Commission (Art.280)
Judicial	The pardoning power (Art.72) and the advisory reference (Art.143)
Military	Supreme command of the Defence Forces, exercised by law (Art.53(2))
Diplomatic	Negotiation and conclusion of treaties and agreements, subject to ratification by Parliament
Emergency	Proclamations under Arts.352, 356 and 360

The Position of the President under Art.74

Stage	Position
1950, as enacted	Art.74(1) said the Council of Ministers shall aid and advise the President. Whether the advice was binding was left to convention
42nd Amendment, 1976	Added the words that the President shall act in accordance with such advice, putting the matter beyond doubt
44th Amendment, 1978	Added a proviso permitting the President to require the Council to reconsider such advice, generally or otherwise, but obliging him to act in accordance with the advice tendered after reconsideration
Art.74(2)	The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court

Areas of genuine discretion. Although the President is bound by advice, situations arise in which there is no advice binding on him, or in which the advice is of doubtful authority. These include the appointment of a Prime Minister where no party has a clear majority; the dismissal of a Council of Ministers that has demonstrably lost the confidence of the House and refuses to resign; the dissolution of the House on the advice of a Prime Minister who has himself lost confidence; and the exercise of the power to withhold assent under Art.111, where no time limit is prescribed, giving rise to what is loosely called a pocket veto.

**Samsher Singh v State of Punjab (1974)** Supreme Court of India

Facts: An order terminating the services of a subordinate judicial officer had been made in the name of the Governor but authenticated by a Secretary rather than signed by the Governor personally. It was contended that the Governor had to apply his own mind and act personally.

Issue: Whether the President and the Governor are required to exercise their functions personally, or whether they act on the aid and advice of their Council of Ministers.

Held: The President and the Governor are constitutional or formal heads of the executive. They exercise their powers and functions on the aid and advice of their Council of Ministers, save in a few well known exceptional situations. The "satisfaction" required by various articles is not the personal satisfaction of the head of State but the satisfaction of the Council of Ministers on whose aid and advice he acts, and business may be transacted in his name under the rules made under Art.77 or Art.166.

Relevance: The leading authority on the position of the President and Governor in the parliamentary scheme. Cite it whenever a provision speaks of the President's or Governor's satisfaction.

**U N R Rao v Indira Gandhi (1971)** Supreme Court of India

Facts: After the dissolution of the House of the People it was argued that the Prime Minister and the Council of Ministers ceased to hold office, since there was no House to which they could be responsible, and that the President was thereafter to act on his own.

Issue: Whether Art.74(1) is mandatory, so that there must always be a Council of Ministers to aid and advise the President.

Held: Art.74(1) is mandatory. There must at all times be a Council of Ministers with a Prime Minister at its head to aid and advise the President. The Council does not cease to hold office on the dissolution of the House; the outgoing Ministry continues until a new one is constituted. Any other reading would convert the President into an absolute ruler in the interval, which the Constitution does not contemplate.

Relevance: Establishes that there is no constitutional vacuum and no period of personal presidential rule. Fundamental to any answer on the President's real position.

**Kehar Singh v Union of India (1989)** Supreme Court of India

Facts: A person convicted and sentenced to death petitioned the President for clemency under Art.72. The petition was rejected on the view that the President could not go behind the judicial verdict. The scope of the power was challenged.

Issue: What is the scope of the power under Art.72, and is its exercise open to judicial review?

Held: The power under Art.72 is of the widest amplitude. The President may examine the evidence afresh and may take a view of the merits different from that taken by the court, since he is not sitting in appeal but exercising a wholly different constitutional function. There is no right to an oral hearing before him. The order is not subject to review on the merits, although the Court may examine whether the power has been exercised at all and whether it has been exercised on wholly irrelevant or extraneous grounds. The power is exercised on the advice of the Government, not on the President's personal judgment.

Relevance: The leading case on Art.72. State the two propositions together: the power is very wide in content, and very narrow in reviewability.

Illustrations

Advice is binding: The Council of Ministers advises the President to promulgate an Ordinance. He doubts its wisdom and returns the advice for reconsideration. The Council tenders the same advice. Under the proviso to Art.74(1) he must now act in accordance with it.
Satisfaction is ministerial: A statute requires action on the President's satisfaction. Applying Samsher Singh (1974), the satisfaction is that of the Council of Ministers, and an order authenticated under the Art.77 rules is valid without his personal signature.
No vacuum on dissolution: The House of the People is dissolved. Applying U N R Rao v Indira Gandhi (1971), the Prime Minister and Council of Ministers continue in office, and the President remains bound to act on their advice.
Discretion in a hung House: No party secures a majority. The President's choice of whom to invite is a matter of genuine discretion, since there is no Council of Ministers with the authority of the House to advise him.
Pocket veto: A Bill is presented for assent and the President neither assents, nor withholds assent, nor returns it. Art.111 prescribes no time limit, so the Bill remains in suspense. This is the so-called pocket veto.
Return of a Bill: The President returns a Bill for reconsideration. Parliament passes it again, with or without amendment. Under the proviso to Art.111 he shall not withhold assent the second time.
Money Bill cannot be returned: A Money Bill is presented for assent. He may assent or withhold assent but cannot return it, the proviso to Art.111 being confined to Bills other than Money Bills.
Clemency independent of the courts: A convict's appeal has been dismissed by the Supreme Court. Applying Kehar Singh (1989), the President may nevertheless take a different view of the evidence and commute the sentence, since Art.72 is not an appellate jurisdiction.
Advice is not disclosable: In a challenge to a presidential order, the petitioner seeks production of the ministerial advice. Art.74(2) bars any inquiry by a court into whether, and what, advice was tendered.

Recall Check

Who constitutes the electoral college for the election of the President, and who is excluded?
State the ground and the four procedural requirements for impeachment under Art.61.
What did the 42nd and 44th Amendments each do to Art.74(1)?

Key Cases

Samsher Singh v State of Punjab (1974) Samsher Singh v State of Punjab 1974
Issue: Whether the President and Governor must act personally, or on ministerial aid and advice.
Rule: They are constitutional heads, and the satisfaction required by the Constitution is that of the Council of Ministers, save in a few exceptional situations.
Held: An order authenticated in the Governor's name under the rules of business was valid without his personal application of mind.

U N R Rao v Indira Gandhi (1971) UNR Rao v Indira Gandhi 1971
Issue: Whether a Council of Ministers must exist at all times, including after dissolution of the House.
Rule: Art.74(1) is mandatory, and the outgoing Council continues until a successor is constituted.
Held: The Prime Minister did not cease to hold office on dissolution, and the President remained bound to act on advice.

Kehar Singh v Union of India (1989) Kehar Singh v Union of India 1989
Issue: Scope of the pardoning power under Art.72 and its reviewability.
Rule: The power is of the widest amplitude and permits a view of the merits different from the court's, but its exercise is not reviewable on the merits and there is no right to an oral hearing.
Held: The rejection of the clemency petition was reconsidered on the footing that the President was not confined to the judicial record.

Distinctions

Basis	President of India	President of the United States
Nature of office	Constitutional head in a parliamentary system	Real executive in a presidential system
Election	Indirect, by an electoral college of legislators	Effectively direct, through an electoral college of electors
Relationship with the legislature	Ministers are members of the legislature and responsible to it	Secretaries are not members of Congress and are not responsible to it
Binding advice	Bound by the advice of the Council of Ministers (Art.74)	Cabinet is purely advisory
Removal	Impeachment for violation of the Constitution	Impeachment for treason, bribery, or other high crimes and misdemeanours
Veto	Suspensive only; must assent if the Bill is passed again	Qualified veto, overridable by a two thirds majority of both Houses

Basis	Election of the President	Impeachment of the President
Participants	Elected members of both Houses and of State Legislative Assemblies	Members of the House preferring the charge, and then of the other House
Nominated members	Do not participate	Do participate
State legislatures	Participate	Do not participate
Majority	Single transferable vote, secret ballot	Two thirds of the total membership of each House

Flashcards

In whom does the executive power of the Union vest?

The President, who exercises it directly or through officers subordinate to him (Art.53).

Who forms the electoral college for the President's election?

The elected members of both Houses of Parliament and the elected members of the Legislative Assemblies of the States, including Delhi and Puducherry.

What is the sole ground for impeaching the President?

Violation of the Constitution (Art.61).

What notice and majority does impeachment require?

Fourteen days notice signed by at least one fourth of the total members of the House, and a resolution passed by not less than two thirds of the total membership of each House.

What is the minimum age to be President?

Thirty five years (Art.58).

What did the 42nd Amendment do to Art.74(1)?

It added the words requiring the President to act in accordance with the advice of the Council of Ministers.

What did the 44th Amendment add?

A proviso allowing the President to require the Council to reconsider its advice, after which he must act in accordance with the advice tendered.

Can a court inquire into the advice given to the President?

No. Art.74(2) bars any such inquiry.

Whose satisfaction is meant where the Constitution speaks of the President's satisfaction?

That of the Council of Ministers (Samsher Singh v State of Punjab, 1974).

Must there always be a Council of Ministers?

Yes. U N R Rao v Indira Gandhi (1971) held Art.74(1) mandatory, so the outgoing Council continues even after dissolution.

How wide is the power under Art.72?

Of the widest amplitude; the President may take a view of the merits different from the court's, but the exercise is not reviewable on the merits (Kehar Singh, 1989).

Can the President return a Money Bill for reconsideration?

No. The proviso to Art.111 applies only to Bills other than Money Bills.

What is a pocket veto?

The President's ability to keep a Bill pending indefinitely, because Art.111 fixes no time within which he must act.

Exam Scenario

Problem: A general election returns no party with a majority. The President invites Leader X, who commands the largest single block, to form a government. X is sworn in but loses a confidence motion and advises the President to dissolve the House. Leader Y meanwhile produces letters from a majority of members supporting her. The President dissolves the House on X's advice. Separately, the President had earlier returned a Bill for reconsideration; Parliament passed it again unamended, and the President now proposes to withhold assent. He also proposes to reject a clemency petition on the ground that he cannot look behind the judgment of the Supreme Court. Advise the President.

Step 1: Uphold the invitation to X as an exercise of discretion

This is one of the recognised areas of genuine discretion, since after an inconclusive election there is no Council of Ministers with the authority of the House to advise him.

Inviting the leader of the largest single block is a defensible exercise of that discretion, subject to a requirement that he demonstrate confidence on the floor of the House.

Step 2: Attack the dissolution advised by a defeated Prime Minister

Apply the principle underlying Samsher Singh v State of Punjab (1974) that the President acts on advice, together with the exception recognised there for a few well known situations.

Advice tendered by a Prime Minister who has just been defeated on a confidence motion is of doubtful authority.

Competing claim	Basis put forward	Weight
X, seeking dissolution	Advice of a Prime Minister just defeated on a confidence motion	Of doubtful authority
Y, claiming to govern	Letters from a majority of members	At best a reason to convene the House, not a substitute for a vote

Take these steps before any dissolution:

Treat the floor of the House as the only proper test of majority support.
Satisfy himself whether an alternative government is possible before destroying the House.
Recall that dissolution creates no vacuum: U N R Rao v Indira Gandhi (1971) makes clear that X's Council of Ministers continues in office until a successor is appointed, so there is no occasion for the President to govern personally.

Step 3: Give assent to the Bill under the proviso to Art.111

Apply the proviso to Art.111. The President has already exercised his one power of return.

Where Parliament passes the Bill again, with or without amendment, he shall not withhold assent. The proposed course is therefore unconstitutional.

Step 4: Reconsider the clemency petition on its merits

Apply Kehar Singh v Union of India (1989). The premise is wrong: Art.72 is not an appellate jurisdiction, and the President may examine the evidence and reach a conclusion on the merits different from that of the court.

Rejecting the petition on the ground that he is bound by the judgment is to decline to exercise the power at all, which is itself an error open to correction, even though a decision on the merits would not be reviewable.

The power is in any event exercised on the advice of the Government.

Traps in this problem

Letters are not a floor test. They are at best a reason to convene the House. The only proper test of majority support is a vote on the floor.

A defeated Prime Minister's advice is of doubtful authority. Samsher Singh states the rule that the President acts on advice, with an exception for a few well known situations.

There is no vacuum on dissolution. U N R Rao keeps X's Council of Ministers in office until a successor is appointed, so the President has no occasion to govern personally.

The power of return under Art.111 is exercisable once. After Parliament passes the Bill again, with or without amendment, the President shall not withhold assent.

Declining to exercise Art.72 is reviewable, even though its exercise is not. A decision on the merits would not be reviewable, but refusing on a wrong premise is an error open to correction.

Conclusion. The invitation to X was proper, but the dissolution was open to serious objection. Assent to the Bill must now be given, and the clemency petition must be considered on its merits.