DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

FINAL DRAFT
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CONSTITUTIONAL LAW II: POWERS OF PRESIDENT

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Submitted To: Submitted By:

Asst. Prof. Mahendra Singh Paswan Sakshi verma

Astt. Professor IV Semester

Dr. Ram Manohar Lohiya National Roll No: 106

Law University, Lucknow Section: B

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 ACKNOWLEDGEMENT

I would like to extend my special thanks of gratitude to my Constitutional Law teacher

Mr. Mahendra Singh Paswan who gave me the opportunity to work on the powers of the
president under the Indian Constitution.

I would like to thank sir for giving me such an interesting topic to research on and for
the help and guidance which you gave me during the making of my project. It has been
a wonderful experience to work on this project as it has been very knowledgeable to
understand the powers and functions of the President of India and a comparative analysis in
other countries.

Secondly, I would like to thank my seniors and friends who helped me a lot in
finishing this project within the limited time.

-SAKSHI VERMA

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 TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………………...4

LEGISLATIVE POWERS…………………………………………………………..………..….5

 PARTICIPATION IN LEGISLATIVE AFFAIRS……………….………………..…………...……5

 POWER OF VETO……………………………………………………………………………6

 RULE MAKING…………………………………………………………………………….6

 DECLARATION OF EMERGENCY……………………………………………………..……..7

 ORDINANCE MAKING POWER………………………………………………………….…..8

EXECUTIVE POWERS……………………………………………………………..………….9

JUDICIAL POWERS…………………………………………………………………...………10

 APPOINTMENT AND REMOVAL OF JUDGES……………………………………………...…10

 GRANTING PARDON……………………………………………………………………....10

 SEEKING ADVICE………………………………………………………………………....10

CONCLUSION…………………………………………………………………....…………….12

BIOBLIOGRAPHY…………………………………………………………………………….13

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 INTRODUCTION
The President of India is the head of state of the Republic of India. The President is the formal
head of the executive, legislature and judiciary of India and is the commander-in-chief of
the Indian Armed Forces.

The president is a titular head, equivalent to the monarch in Britain since we have adopted the
Westminster system of government

The President is indirectly elected by the people through elected members of the Parliament of
India (Lok Sabha and Rajya Sabha) as well as of the state legislatures (Vidhan Sabha but
not Vidhan Parishads) and serves for a term of five years. A formula is used to allocate votes so
there is a balance between the population of each state and the number of votes assembly
members from a state can cast, and to give an equal balance between State Assembly members
and the members of the Parliament of India. If no candidate receives a majority of votes, then
there is a system by which losing candidates are eliminated from the contest and their votes are
transferred to other candidates, until one gains a majority.

Although Article 531 of the states that the President can exercise his or her powers directly or by
subordinate authority, with few exceptions, all of the executive authority vested in the President
are, in practice, exercised by the popularly elected Government of India, headed by the Prime
Minister. This Executive power is exercised by the Prime Minister with the help of the Council
of Ministers.

The executive powers of the Indian union, under Article 532, vest in the president. The president
has a right to be informed of all of the nation's affairs, enjoys powers to appoint and remove high
constitutional authorities, including the prime minister and the council of ministers. All
appointments of the judges of the Supreme Court and the High Courts, the state governors, the
attorney general, the comptroller and auditor general (CAG), and the chief commissioner and
members of the election commission are made in his name.

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 LEGISLATIVE FUNCTIONS
Legislative power of the Central Executive can be discussed under the following heads:

1. Participation of the Executive in the legislative process

2. Power of rule- making under the Constitution
3. Power to proclaim an emergency
4. Power to make ordinances

PARTICIPATION IN LEGISLATIVE AFFAIRS

The Council of Ministers being an integral part of Parliament participates intimately in the
legislative process, and discharges several important functions in relation to Parliament. This
concept is underlined by making President a component part of Parliament.

Because the government enjoys majority support in Lok Sabha, no bill is passed by the House
unless the government supports it. Therefore, a private members’ bill has no chance of getting
through the House without government support. In practice, government monopolises legislative
process in parliament. Practically, all bills passed by the House of Parliament are those presented
by the government.

No bill passed by the Parliament can become a law without the assent of the President. There are
certain bills which cannot be introduced in the Parliament without the permission of the
President. Similarly, without his prior permission, some specified bills cannot be introduced in
state legislatures. For example, such bills which seek to redistribute territory of states or alter
their names, boundaries or areas, cannot be introduced in the Parliament without the prior
consent of the President3.

For introducing Money Bills in the Parliament, the prior authorization of the President is
required. A bill aiming at imposing certain restrictions on the freedom of trade, commerce or
intercourse within the state cannot be introduced within the state legislature if the prior
authorization of the President has not been obtained.

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http://orissa.gov.in/e-magazine/Orissareview/2012/oct/engpdf/58-63.pdf

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A bill duly passed by the Parliament is sent to the President for his assent. It becomes an Act
when the President gives his assent to it. The President may send back a bill to the Parliament for
reconsideration. But if the bill, after such reconsideration, is again presented to him for his
assent, he is bound to give assent to it.

Further, several provisions in the Constitution require prior recommendation of the President for
introducing legislation on some matters in a House of Parliament. As for example –

1. President’s recommendation is required to introduce in either House a Bill for the

formation of new States or alteration of areas boundaries or names of existing States.
[Article 3]4.
2. A Money Bill cannot be introduced without the recommendation of the President [Article
117(1)]5.

THE POWER OF VETO

If it is an ordinary Bill

In case of an ordinary bill or a bill got introduced by a private member and passed by both
houses, the president can just keep the bill in his pocket and forget it. When president neither
gives assent nor returns the bill, it is also called "Pocket Veto". So, Pocket Veto is applicable to
only ordinary bills. This is also called Absolute Veto.

If it is a constitution amendment Bill

The President of India enjoyed absolute veto on Constitutional amendment till 1971 only. The
article 368 (2) before 1971 stated: ….it, shall be presented to the President for his assent and
upon such assent being given to the bill , the constitution shall stand amended. However, the
situation changed in 1971. The above clause was changed as follows by Constitution 24th
Amendment Act, 1971: …..it, shall be presented to the President who shall give his assent to the
Bill and thereupon. This means that now, Constitutional amendments cannot be questioned by

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the president or any court of law. However, the Basic Structure of the Constitution still remains
under the Judicial Review, in case of such amendment violates the basic structure.

If it a money bill

The President may either give or withhold his assent to a Money Bill. Under the Constitution, a
Money Bill cannot be returned to the House by the President for reconsideration.

DECLARATION OF EMERGENCY

National emergency (article 352)

On the grounds of security threats to India by war, external aggression or armed rebellion. The
President can proclaim this emergency only after receiving a written recommendation from the
Cabinet. The proclamation of the emergency must be approved by the Parliament with in one
month. If approved, it will continue for six months. It can be extended for an indefinite period
with an approval of the Parliament for every six months. It has been proclaimed three times so
far- 1962, 1971 and 1975.President can suspend the operation of Fundamental Rights (except
Articles 20 and 21) during this type of emergency. Article 19 can only be suspended in case of
external emergency and not in the case of internal emergency. The Parliament can make laws on
items mentioned in the State list during the period of National Emergency6.

State Emergency (Article 356)

Emergency due to failure of constitutional machinery in State. The President's rule can be
imposed when the President is satisfied, on the basis of either a report of the State Governor or
otherwise, that the governance of the State cannot be carried on in accordance with the
provisions of the constitution. The proclamation of the President's rule should be approved by
the Parliament within two months. If approved, it remains in force for six months from the date
of proclamation of the State Emergency. It can be extended for a maximum period of three years
with the approval of the Parliament every six months. The State Governor, on behalf of the

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President, carries on the State administration with the help of the advisors appointed by the
President or the Chief Secretary of the State. The President's rule has been imposed more than
100 times.

Financial Emergency (Article 360)

The President can proclaim Financial Emergency if he is satisfied that the financial stability or
the credit of India or any part thereof is threatened. Such a proclamation must be approved by
the Parliament within two months. During the Emergency, the President can issue directions for
the reduction of salaries and allowances of all or any class of persons serving under the State.
Financial Emergency has not been declared so far.

ORDINANCE MAKING POWER

The Central Executive has power to issue ordinances and thus promulgate laws for a short
duration. The technique of issuing an ordinance has been devised with a view to enabling the
Executive to meet any unforeseen or urgent situation arising in the country when Parliament is
not in session, and which it cannot deal with under the ordinary law.

The President has the power to promulgate ordinance during the recess of Parliament. When the
Parliament is not in session, the President can promulgate an ordinance to meet some exigency.
When both Houses of Parliament are not in session, under Article 123, the President can
promulgate an ordinance if he is satisfied that a situation has arisen which makes it necessary for
him to take 'immediate action.' An ordinance has the same force as an Act of Parliament. It has to
be approved by both Houses within 6 weeks of their reassembly.

Otherwise, it will cease to operate after the expiry of 6 weeks from the date of the reassembly of
the Parliament. An ordinance is of temporary duration. It can be withdrawn by the President. It
can also be revoked if it is disapproved by both Houses of Parliament by adopting resolutions to
that effect.

Article 123 empowers the President to promulgate such ordinances as the circumstances appear
to him to require when-

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  Both Houses of Parliament are not in session; and
 He is satisfied that circumstances exist which render it necessary for him to take
immediate action.

The power to issue an ordinance is legislative power. An ordinance issued by the President
partakes fully of the legislative character and is made in the exercise of legislative power.7

EXECUTIVE POWERS
The Executive powers of the Union are vested in the President which he may exercise either
directly or through officers sub- ordinate to him, in accordance with the constitution. He
expression “executive power” is nowhere defined in the constitution. Article 73 merely defines
the matter with respect to which the executive authority of the Union extends.

Executive authority can be said to be the authority to carry out the executive functions of the
government. It is not possible to frame an exhaustive definition of “executive functions”.
Ordinarily, it connotes the residue of government functions that are not either legislative of
judicial functions.8 It comprises both determination of policy as well as its execution. This
evidently includes the initiation

In the recent times, the scope of “executive function” has become extremely wide. It now
involves the provision and administration or regulation of a vast system of social services like
public health, housing, assistance for the sick and unemployed, welfare of industrial workers,
education, transport and so on, as well as the provision of defense, order and justice and finance
required thereof, which were the original tasks of organized government. With the rise in the
executive functions, the method of the government has also changed which necessitates the
conferring of powers on the executive other than those of purely executive or administrative
nature. The executive now exercises the powers of subordinate legislation and of administrative
justice. Shah J in Jayantlal Amratlal Shodhan v F.N. Rana9 said:

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A. K. Roy v Union of India, AIR 1982 SC 710
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Ram Jawaya Kapur v.State of Punjab, AIR 1955 SC 549
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AIR 1964 SC 648

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“It cannot, however, be assumed that the legislative functions are exclusively performed by the
legislature, executive functions by the executive and judicial functions by the judiciary alone.
The constitution has not made an absolute or rigid division of functions between the three
agencies of the State. To the executive, exercise of functions legislative or judicial is often
entrusted. For instance power to frame rules, regulations and notifications which are essentially
legislative in character is frequently entrusted to the executive. Similarly judicial authority is also
entrusted by legislation to the executive authority.”

JUDICIAL POWERS
The President has some judicial power. He cannot be punished by any court.

APPOINTMENT AND REMOVAL OF JUDGES

The President of India exercises different types of judicial powers. He appoints the Judges of the
Supreme Court and High Courts. He can remove a Judge if he receives an address to that effect
from both Houses of the Parliament. He can also transfer High Court Judges.

SEEKING ADVICE

Under Article 143, the President can seek the advisory opinion of the Supreme Court. Any
question of law or matter of public importance can be referred by him to the Highest Court of the
land for its advisory opinion.

GRANTING PARDON

The President shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any offence

 in all cases where the punishment or sentence is by a Court Martial;

 in all cases where the punishment or sentence is for an offence against any law relating to
a matter to which the executive power of the Union extends;
 in all cases where the sentence is a sentence of death.

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Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute
sentences in certain cases.

The President has the power to pardon, reprieve, and respite, remit, suspend and commute
sentences of convicted persons. This 'pardoning power' has been given to almost all Heads of
State. By exercising his power to pardon, the President of India can set free any offender who
has been tried and convicted. By reprieve is meant a stay of execution of the sentence pending a
proceeding for pardon etc. Respite means that a lesser sentence is awarded instead of the
punishment prescribed.

Pardoning Power Under Judicial Review:

There has always been a debate as to whether the power of the executive to pardon should be
subjected to judicial review or not. Supreme Court in a catena of cases has laid down the law
relating to judicial review of pardoning power.

In Maru Ram v Union of India, the Constitutional Bench of Supreme Court held that the power
under Article 72 is to be exercised on the advice of the Central Government and not by the
President on his own, and that the advice of the Government binds the head of the Republic.

In Dhananjoy Chatterjee alias Dhana v State of West Bengal10, the Supreme Court reiterated its
earlier stand in Maru Ram’s case and said:

“The power under Articles 72 and 161 of the Constitution can be exercised by the Central and
State Governments, not by the President or Governor on their own. The advice of the appropriate
Government binds the Head of the state.”

In Swaran Singh v State of U.P., the Governor of U.P. had granted remission of life sentence
warded to the Minister of the State Legislature of Assembly convicted for the offence of murder.
The Supreme Court interdicted the Governor’s order and said that it is true that it has no power
to touch the order passed by the Governor under Article 161, but if such power has been
exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of
constitutionalism”, such order cannot get approval of law and in such cases, “the judicial hand

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AIR 1989 SC 653

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must be stretched to it.” The Court held the order of Governor arbitrary and, hence, needed to be
interdicted.

In the early case of K.M. Nanavati v State of Bombay11 , Governor granted reprieve under
Article 161 which was held unconstitutional as it was in contrast with the Supreme Court rulings
under Article 145.

In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors12, it was held by the
Supreme Court that it is a well-set principle that a limited judicial review of exercise of clemency
powers is available to the Supreme Court and High Courts. Granting of clemency by the
President or Governor can be challenged on the following grounds:

 The order has been passed without application of mind.

 The order is mala fide.
 The order has been passed on extraneous or wholly irrelevant considerations.
 Relevant material has been kept out of consideration.
 The order suffers from arbitrariness.

CONCLUSION

Accordingly the legislature cannot exercise executive or judicial power, the executive cannot
exercise legislative or judicial power and the judiciary cannot exercise legislative or executive
powers of the government. Strict adherence to the theory of separation and compartmentalization
of power would not make the wheels of state move and bring it to an alarmingly standstill. As
Frankfurter J. Says “Enforcement of rigid conception of separation of power would make
modern government impossible.” This non enforcement has now laid down to a hectic situation
where the three machineries of the state are now trying too power each other. The question put
forward here i.e. Can President’s power of Pardon be subjected to Judicial Review is also an
outcome of the tug of war between the three branches.

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1993 SC 3333
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2003 (7) SCC 121

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 It is argued that if this power to pardon of President is subjected to judicial review it would be a
clear cut encroachment of the judiciary in the executive and the separation of power is defeated.
Whether Judicial Review disturbs there spirit behind the concept of Pardon?

BIBLIOGRAPHY

1)WWW.SCCONLINE.COM
2)WWW.MANUPATRA.COM

3)WADE &PHILLIPS , CONSTITUTIONAL LAW, 8THEDN.

4)DDBASU, CONSTITUIONAL LAW

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