Power and functions of President

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Powers and duties Under the draft constitution the President occupies the same position as the King under the English Constitution. He is the head of the state but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the Nation. His place in the administration is that of a ceremonial device on a seal by which the nation's decisions are made known.

— Bhimrao Ambedkar, chairperson of the drafting committee of the Constituent Assembly of India, [7] Duty The primary duty of the president is to preserve, protect and defend the constitution and the law of India as made part of his oath (Article 60 of Indian constitution).[6] The president is the common head of all independent constitutional entities. All his actions, recommendations (Article 3, Article 111, Article 274, etc.) and supervisory powers (Article 74(2), Article 78C, Article 108, Article 111, etc.) over the executive and legislative entities of India shall be used in accordance to uphold the constitution.[8] There is no bar on the actions of the president to contest in the court of law.[9]

Legislative powers Legislative power is constitutionally vested by the Parliament of India of which the president is the head, to facilitate the lawmaking process per the constitution (Article 78, Article 86, etc.). The president summons both the houses (Lok Sabha and Rajya Sabha) of the parliament and prorogues them. He can dissolve the Lok Sabha.[4]:147

The president inaugurates parliament by addressing it after the general elections and also at the beginning of the first session every year per Article 87(1). The presidential address on these occasions is generally meant to outline the new policies of the government.[10]:145

All bills passed by the parliament can become laws only after receiving the assent of the president per Article 111. After a bill is presented to him, the president shall declare either that he assents to the Bill, or that he withholds his assent from it. As a third option, he can return a bill to parliament, if it is not a money bill, for reconsideration. President may be of the view that a particular bill passed under the legislative powers of parliament is violating the constitution, he can send back the bill with his recommendation to pass the bill under the constituent powers of parliament following the Article 368 procedure. When, after reconsideration, the bill is passed accordingly and presented to the president, with or without amendments, the president cannot withhold his assent from it. The president can also withhold his assent to a bill when it is initially presented to him (rather than return it to parliament) thereby exercising a pocket veto on the advice of prime minister or council of ministers per Article 74 if it is inconsistent to the constitution.[9] Article 143 gave power to the president to consult the supreme court about the constitutional validity of an issue. The president shall assent to constitutional amendment bills without power to withhold the bills per Article 368 (2).

When either of the two Houses of the Parliament of India is not in session, and if the government feels the need for an immediate procedure, the president can promulgate ordinances which have the same force and effect as an act passed by parliament under its legislative powers. These are in the nature of interim or temporary legislation and their continuance is subject to parliamentary approval. Ordinances remain valid for no more than six weeks from the date the parliament is convened unless approved by it earlier.[11] Under Article 123, the president as the upholder of the constitution shall be satisfied that immediate action is mandatory as advised by the union cabinet and he is confident that the government commands majority support in the parliament needed for the passing of the ordinance into an act and parliament can be summoned to deliberate on the passing of the ordinance as soon as possible. The promulgated ordinance is treated as an act of parliament when in force and it is the responsibility of the president to withdraw the ordinance as soon as the reasons for promulgation of the ordinance are no longer applicable. Bringing laws in the form of ordinances has become a routine matter by the government and president, but the provisions made in Article 123 are meant for mitigating unusual circumstances where immediate action is inevitable when the extant provisions of the law are inadequate. Re-promulgation of an ordinance after failing to get approval within the stipulated time of both houses of parliament is an unconstitutional act by the president.[12] The president should not incorporate any matter in an ordinance which violates the constitution or requires an amendment to the constitution. The president should take moral responsibility when an ordinance elapses automatically or is not approved by the parliament or violates the constitution.[13]

Executive powers The President of the Indian Union will be generally bound by the advice of his Ministers. [...] He can do nothing contrary to their advice nor can do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament

— Bhimrao Ambedkar, chairperson of the drafting committee of the Constituent Assembly of India, [7] Per Article 53, the executive power of the country is vested in the president and is exercised by president either directly or through officers subordinate to him in accordance with the constitution. When parliament thinks fit it may accord additional executive powers to the president per Article 70 which may be further delegated by the president to the governors of states per Article 160. Union cabinet with prime minister as its head, should aid and advice the president in performing his functions. Per Article 74 (2), the council of ministers or prime minister are not accountable legally to the advice tendered to the president but it is the sole responsibility of the president to ensure compliance with the constitution in performing his duties. President or his subordinate officers is bound by the provisions of the constitution notwithstanding any advice by union cabinet.[14]

Per Article 142, it is the duty of the president to enforce the decrees of the supreme court.

Judicial powers The primary duty of the president is to preserve, protect and defend the constitution and the law of India per Article 60. The president appoints the Chief Justice of India and other judges on the advice of the chief justice. He dismisses the judges if and only if the two Houses of the parliament pass resolutions to that effect by a two-thirds majority of the members present.[15]

The Indian government's chief legal adviser, Attorney General of India, is appointed by the president of India under Article 76(1) and holds office during the pleasure of the president. If the president considers a question of law or a matter of public importance has arisen, he can also ask for the advisory opinion of the supreme court per Article 143. Per Article 88, the president can ask the attorney general to attend the parliamentary proceedings and report to him any unlawful functioning if any.[16]

Appointment powers The president appoints as prime minister, the person most likely to command the support of the majority in the Lok Sabha (usually the leader of the majority party or coalition). the president then appoints the other members of the Council of Ministers, distributing portfolios to them on the advice of the prime minister.[17]:72 The Council of Ministers remains in power at the 'pleasure' of the president.

The president appoints 12 members of the Rajya Sabha from amongst persons who have special knowledge or practical experience in respect of such matters as literature, science, art and social service. The president may nominate not more than two members of Anglo Indian community as Lok Sabha members per Article 331

Governors of states are also appointed by the president who shall work at the pleasure of the president. Per Article 156, the president is empowered to dismiss a governor who has violated the constitution in his acts.

The president is responsible for making a wide variety of appointments. These include:[17]:72

The chief justice and other judges of the Supreme Court of India and state/union territory high courts. The Chief Minister of the National Capital Territory of Delhi (Article 239 AA 5 of the constitution). The Comptroller and Auditor General. The Chief Election Commissioner and other Election Commissioners. The Chairman and other Members of the Union Public Service Commission. The Attorney General. Ambassadors and High Commissioners to other countries (only through the list of names given by the prime minister).[18][19]:48 Officers of the All India Services (IAS, IPS and IFoS), and other Central Civil Services in Group 'A'. Financial powers A money bill can be introduced in the parliament only with the president's recommendation. The president lays the Annual Financial Statement, i.e. the Union budget, before the parliament. The president can take advances out of the Contingency Fund of India to meet unforeseen expenses. The president constitutes a Finance commission after every five years to recommend the distribution of the taxes between the centre and the States.[20][21]:48 Diplomatic powers All international treaties and agreements are negotiated and concluded on behalf of the president.[22]:18 However, in practice, such negotiations are usually carried out by the prime minister along with his Cabinet (especially the Foreign Minister). Also, such treaties are subject to the approval of the parliament. The president represents India in international forums and affairs where such a function is chiefly ceremonial. The president may also send and receive diplomats, i.e. the officers from the Indian Foreign Service.[10]:143 The president is the first citizen of the country.[18]

Military powers The president is the Supreme Commander of the Indian Armed Forces. The president can declare war or conclude peace,[18] on the advice of the Union Council of Ministers headed by the prime minister. All important treaties and contracts are made in the president's name.[23]

Pardoning powers See also: Presidential pardon As mentioned in Article 72 of the Indian constitution, the president is empowered with the powers to grant pardons in the following situations:[18]

Punishment is for an offence against Union law. Punishment is by a military court. A sentence that is of death.[23] The decisions involving pardoning and other rights by the president are independent of the opinion of the prime minister or the Lok Sabha majority. In most cases, however, the president exercises his executive powers on the advice of the prime minister and the cabinet.[17]:239[24]

Emergency powers The president can declare three types of emergencies: national, state and financial, under articles 352, 356 & 360 in addition to promulgating ordinances under article 123.[22]:12

National emergency See also: The Emergency (India) A national emergency can be declared in the whole of India or a part of its territory for causes of war or armed rebellion or an external aggression. Such an emergency was declared in India in 1962 (Indo-China war), 1971 (Indo-Pakistan war),[25] and 1975 to 1977 (declared by Indira Gandhi).[see main]

Under Article 352 of the India constitution, the president can declare such an emergency only on the basis of a written request by the cabinet of ministers headed by the prime minister. Such a proclamation must be approved by the parliament with an at least two-thirds majority within one month. Such an emergency can be imposed for six months. It can be extended by six months by repeated parliamentary approval-there is no maximum duration.[22][page needed]

In such an emergency, Fundamental Rights of Indian citizens can be suspended.[4]:33 The six freedoms under Right to Freedom are automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended (Article 21).[26]:20.6

The president can make laws on the 66 subjects of the State List (which contains subjects on which the state governments can make laws).[27] Also, all money bills are referred to the president for approval.[21]:88 The term of the Lok Sabha can be extended by a period of up to one year, but not so as to extend the term of parliament beyond six months after the end of the declared emergency.[17]:223

National Emergency has been proclaimed 3 times in India till date. It was declared first in 1962 by President Sarvepalli Radhakrishnan, during the Sino-Indian War. This emergency lasted through the Indo-Pakistani War of 1965 and up to 1968. It was revoked in 1968. The second emergency in India was proclaimed in 1971 by President V. V. Giri on the eve of the Indo-Pakistani War of 1971. The first two emergencies were in the face of external aggression and War. They were hence external emergencies. Even as the second emergency was in progress, another internal emergency was proclaimed by President Fakhruddin Ali Ahmed, with Indira Gandhi as prime minister in 1975. In 1977, the second and the third emergencies were together revoked.

State emergency See also: Federalism in India If the president is not fully satisfied, on the basis of the report of the governor of the concerned state or from other sources that the governance in a state cannot be carried out according to the provisions in the constitution, he can proclaim under Article 356 a state of emergency in the state.[6] Such an emergency must be approved by the parliament within a period of 2 months.

Under Article 356 of the Indian constitution, it can be imposed from six months to a maximum period of three years with repeated parliamentary approval every six months. If the emergency needs to be extended for more than three years, this can be achieved by a constitutional amendment, as has happened in Punjab and Jammu and Kashmir.

During such an emergency, the president can take over the entire work of the executive, and the governor administers the state in the name of the president. The Legislative Assembly can be dissolved or may remain in suspended animation. The parliament makes laws on the 66 subjects of the state list[28] (see National emergency for explanation).

A State Emergency can be imposed via the following:

By Article 356 – If that state failed to run constitutionally, i.e. constitutional machinery has failed. When a state emergency is imposed under this provision, the state is said to be under "President's rule.[29]:159 By Article 365 – If that state is not working according to the direction of the Union government issued per the provisions of the constitution.[30] This type of emergency needs the approval of the parliament within 2 months. It can last up to a maximum of three years via extensions after each 6-month period. However, after one year it can be extended only if

A state of National Emergency has been declared in the country or in the particular state. The Election Commission finds it difficult to organise an election in that state. The Sarkaria Commission held that presidents have unconstitutionally misused the provision of Article 356 many times for achieving political motives, by dismissing the state governments although there was no constitutional break down in the states.[31] During 2005, President's rule was imposed in Bihar state, misusing Article 356 unconstitutionally to prevent the democratically elected state legislators to form a government after the state elections.

There is no provision in the constitution to re-promulgate president's rule in a state when the earlier promulgation ceased to operate for want of parliaments approval within two months duration. During 2014 in Andhra Pradesh, president's rule was first imposed on 1 March 2014 and it ceased to operate on 30 April 2014. President's rule was promulgated after being fully aware that the earliest parliament session is feasible at the end of May 2014 after the general elections. It was reimposed again unconstitutionally on 28 April 2014 by the president.[32][33]

Financial emergency Article 282 accords financial autonomy in spending the financial resources available with the states for public purpose.[6][34] Article 293 gives liberty to states to borrow without any limit to its ability for its requirements within the territory of India without any consent from the Union government. However, Union government can insist for compliance of its loan terms when a state has outstanding loan charged to the consolidated fund of India or an outstanding loan in respect of which a guarantee has been given by the Government of India under the liability of consolidated fund of India.[35]

Under article 360 of the constitution, the president can proclaim a financial emergency when the financial stability or credit of the nation or of any part of its territory is threatened.[6] However, until now no guidelines defining the situation of financial emergency in the entire country or a state or a union territory or a panchayat or a municipality or a corporation have been framed either by the finance commission or by the central government.

Such an emergency must be approved by the parliament within two months by a simple majority. It has never been declared.[36]:604 A state of financial emergency remains in force indefinitely until revoked by the president.[17]:195

The president can reduce the salaries of all government officials, including judges of the supreme court and high courts, in cases of a financial emergency. All money bills passed by state legislatures are submitted to the president for approval. He can direct the state to observe certain principles (economy measures) relating to financial matters.