President of India

The primary duty of the president is to preserve, protect and defend the constitution and the law of India as made part of their oath (Article 60 of Indian constitution).[8] The president is the common head of all independent constitutional entities. All their 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.[11] There is no bar on the actions of the president to contest in the court of law.[12]

Legislative power is constitutionally vested in 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. They can dissolve the Lok Sabha.[5]^: 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.[13]^: 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 them, the president shall declare either that they assent to the Bill, or that they withhold assent from it. As a third option, they 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, they can send back the bill with their 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 their assent from it. The president can also withhold their assent to a bill when it is initially presented to them (rather than return it to parliament) thereby exercising a pocket veto on the advice of the prime minister or council of ministers per Article 74 if it is inconsistent with the constitution.[12] Article 143 gives the president the power 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 that 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.[14] 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 they are 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 the 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.[15] 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.[16] Thus, it is believed that the POI is the de-jure head of the state, whereas PM is the de-facto head.

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, so long as his Ministers command a majority in Parliament

— Bhimrao Ambedkar, chairperson of the drafting committee of the Constituent Assembly of India[9]

Presidential Standard of India (1950–1971)

As per Article 53, the executive power of the country is vested in the president and is exercised by the 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 advise the president in performing their 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 their duties. President or their subordinate officers is bound by the provisions of the constitution notwithstanding any advice by the union cabinet.[17]

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

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. The President may dismiss a judge with a two-thirds vote of the two Houses of the parliament.[18]

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, they 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.[19]

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.[20]^: 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, which was removed in 2019.

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 their acts.

The president is responsible for making a wide variety of appointments. These include:[20]^: 72

• The Chief Justice of India 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 Of India.
• The Chief Election Commissioner and other Election Commissioners.
• The Chairman and other members of the Union Public Service Commission.
• The Attorney General Of India.
• Ambassadors and High Commissioners to other countries (only through the list of names given by the prime minister).[21][22]^: 48
• Officers of the All India Services (IAS, IPS and IFoS), and other Central Civil Services in Group 'A'.

• A financial 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 every five years to recommend the distribution of the taxes between the centre and the States. The most recent was constituted in 2017.[23][24][25]

All international treaties and agreements are negotiated and concluded on behalf of the president.[26]^: 18 However, in practice, such negotiations are usually carried out by the prime minister along with their Cabinet (especially the Minister of External Affairs). 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.[27]^: 143 The president is the first citizen of the country.[21]

The president is the Supreme Commander of the Indian Armed Forces. The president can declare war or conclude peace,[21] 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.[28]

As mentioned in Article 72 of the Indian constitution, the president is empowered with the powers to grant pardons in the following situations:[21]

• punishment for an offence against Union law
• punishment by a military court
• a death sentence[28]

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 their executive powers on the advice of the prime minister and the cabinet.[20]^: 239[29]

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.[26]^: 12

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),[30] 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 at least a 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.[26]

In such an emergency, Fundamental Rights of Indian citizens can be suspended.[5]^: 33 The six freedoms under Right to Freedom are automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended (Article 21).[31]^: 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).[32] Also, all money bills are referred to the president for approval.[33]^: 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.[20]^: 223

National Emergency has been proclaimed 3 times in India to 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.

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, they can proclaim under Article 356 a state of emergency in the state.[8] 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[34] (see National emergency for explanation).

A State Emergency can be imposed via the following:

1. 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.[35]^: 159
2. By Article 365 – If that state is not working according to the direction of the Union government issued per the provisions of the constitution.[36]

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

1. A state of National Emergency has been declared in the country or the particular state.
2. 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.[37] 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.[38][39]

Article 282 accords financial autonomy in spending the financial resources available with the states for public purposes.[8][40] 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, the Union government can insist on compliance with its loan terms when a state has an 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.[41]

Under article 360 of the constitution, the president can proclaim a financial emergency when the financial stability or credit of the nation or any part of its territory is threatened.[8] However, until now no guidelines defining the situation of financial emergency in the entire country or a state or 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.[42]^: 604 A state of financial emergency remains in force indefinitely until revoked by the president.[20]^: 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. They can direct the state to observe certain principles (economy measures) relating to financial matters.[43]

Article 58 of the constitution sets the principal qualifications one must meet to be eligible to the office of the president. A president must be:

• a citizen of India
• of 35 years of age or above
• qualified to become a member of the Lok Sabha

A person shall not be eligible for election as president if they hold any office of profit under the Government of India or the Government of any State or any local or other authority subject to the control of any of the said Governments.

Certain office-holders, however, are permitted to stand as presidential candidates. These are:

• The current vice-president
• The governor of any state
• A Minister of the Union or of any state (including prime minister and chief ministers)[20]^: 72

In the event that the vice-president, a state governor or a minister is elected president, they are considered to have vacated their previous office on the date they begin serving as president.

A member of parliament or a State Legislature can seek election to the office of the president but if they are elected as president, they shall be deemed to have vacated their seat in parliament or State Legislature on the date on which they enter upon their office as President [Article 59(1)].

Article 57 provides that a person who holds, or who has held, office as president shall, subject to the other provisions of this constitution, be eligible for re-election to that office.

Under the Presidential and Vice-Presidential Elections Act, 1952,[44] a candidate to be nominated for the office of president needs 50 electors as proposers and 50 electors as seconders for their name to appear on the ballot.[45]

Certain conditions, per Article 59 of the Indian constitution, debar an otherwise eligible citizen from contesting the presidential elections. The conditions are:

• The president shall not be a member of either house of the parliament or a house of the legislature of any state, and if a member of either house of the parliament or a house of the legislature of any state is elected president, they shall be deemed to have vacated their seat in that house on the date on which they enter into office as president.
• The president shall not hold any other office of profit.
• The president shall be entitled without payment of rent to the use of their official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by parliament by law and until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
• The emoluments and allowances of the president shall not be diminished during their term of office.[42]^: 170

Whenever the office becomes vacant, the new president is chosen by an electoral college consisting of the elected members of both houses of parliament (MPs), the elected members of the State Legislative Assemblies (Vidhan Sabha) of all States and the elected members of the legislative assemblies (MLAs) of union territories with legislatures, i.e., National Capital Territory (NCT) of Delhi, Jammu and Kashmir and Puducherry. The election process of the president is a more extensive process than of the prime minister who is also elected indirectly (elected by the members of the majority party (or union) in the Lok Sabha). Whereas President being the constitutional head with duties to protect, defend and preserve the constitution and rule of law in a constitutional democracy with constitutional supremacy, is elected in an extensive manner by the members of Lok Sabha, Rajya Sabha and state legislative assemblies in a secret ballot procedure.

The nomination of a candidate for election to the office of the president must be subscribed by at least 50 electors as proposers and 50 electors as seconders. Each candidate has to make a security deposit of ₹15,000 (US$190) in the Reserve Bank of India.[46] The security deposit is liable to be forfeited in case the candidate fails to secure one-sixth of the votes polled.

The election is held in accordance with the system of proportional representation (PR) by means of the instant-runoff voting (IRV) method.[47] The voting takes place by a secret ballot system. The manner of election of President is provided by Article 55 of the constitution.[48]

Each elector casts a different number of votes. The general principle is that the total number of votes cast by Members of parliament equals the total number of votes cast by State Legislators. Also, legislators from larger states cast more votes than those from smaller states. Finally, the number of legislators in state matters; if a state has few legislators, then each legislator has more votes; if a state has many legislators, then each legislator has fewer votes.

The actual calculation for votes cast by a particular state is calculated by dividing the state's population by 1000, which is divided again by the number of legislators from the State voting in the electoral college. This number is the number of votes per legislator in a given state. Every elected member of the parliament enjoys the same number of votes, which may be obtained by dividing the total number of votes assigned to the members of legislative assemblies by the total number of elected representatives of the parliament.

Although Indian presidential elections involve actual voting by MPs and MLAs, they tend to vote for the candidate supported by their respective parties.[49]

The president is required to make and subscribe in the presence of the Chief Justice of India—or in their absence, the senior-most judge of the supreme court—an oath or affirmation to protect, preserve and defend the constitution as follows:[50]

I, (name), do swear in the name of God (or solemnly affirm) that I will faithfully execute the office of President (or discharge the functions of the President) of the Republic of India, and will to the best of my ability preserve, protect and defend the Constitution and the law, and that I will devote myself to the service and well-being of the people of the Republic of India.

— Article 60, Constitution of India

In 1979, Prime Minister Charan Singh, did not enjoy a parliamentary majority. He responded to this by simply not advising the president to summon parliament.[21] Since then, presidents have been more diligent in directing incoming Prime Ministers to convene parliament and prove their majority within reasonable deadlines (2 to 3 weeks). In the interim period, the Prime Ministers are generally restrained from making policy decisions.

Since the 1990s, Parliamentary elections have generally not resulted in a single party or group of parties having a distinct majority, until the 2014 Lok Sabha elections when BJP received a clear majority. In such cases, presidents have used their discretion and directed Prime Ministerial aspirants to establish their credentials before being invited to form the government. Typically, the aspirants have been asked to produce letters from various party leaders, with the signatures of all the MPs who are pledging support to their candidature. This is in addition to the requirement that a prime minister proves he has the support of the Lok Sabha (by a vote on the floor of the house) within weeks of being sworn into office.[63][64]

Since the Indian constitution does not provide any time limit within which the president is to declare their assent or refusal, the president could exercise a "pocket veto" by not taking any action for an indefinite time. The veto was used in 1986 by President Zail Singh over the Postal Bill. The president did not give assent to the bill, arguing that its scope was too sweeping and would give the government arbitrary powers to intercept postal communications indiscriminately.[59][65][66]

In the late 1990s, President K. R. Narayanan introduced a modicum of transparency and openness in the functioning of the President. This was by means of Rashtrapati Bhavan Communiqués explaining, to the nation, the thinking that led to the various decisions he took while exercising their discretionary powers.[67]

The constitution gives the president the power to return a bill unsigned but it circumscribes the power to send it back only once for reconsideration. If the parliament sends back the bill with or without changes, the president is obliged to sign it. In mid-2006, President A. P. J. Abdul Kalam sent back a controversial bill regarding the exclusion of certain offices from the scope of 'offices of profit', the holding of which would disqualify a person from being a member of parliament.[68] The combined opposition, the NDA, hailed the move. The UPA chose to send the bill back to the president without any changes and, after 17 days, Kalam gave his assent on 18 August 2006.[69][70]

Arunachal Pradesh governor Jyoti Prasad Rajkhowa, who was earlier appointed by the ruling party at the centre, was sacked by President Pranab Mukherjee after the Supreme Court struck down his unconstitutional acts.[71]