EVOLUTION OF THE PRESIDENT’S POWERS IN THE INDIAN CONSTITUTION

This article is written by Vandna Singh of 3^rd Semester of Kazi Nazrul University, an intern under Legal Vidhiya

ABSTRACT

The President of India, enshrined in the Constitution as the ceremonial head of state, has witnessed a dynamic evolution in their powers since the inception of the Indian Constitution in 1950. Although the Constitution originally envisioned a role for the President that balanced executive authority with ceremonial duties, the powers vested in the office have undergone significant shifts over the course of time. Influenced by constitutional amendments, judicial interpretations, and changing political landscapes, the President’s powers have evolved from those of a symbolic figurehead to a pivotal authority in certain critical moments. This article delves into the historical trajectory of the President’s powers within the Indian constitutional framework, exploring how they have transformed over the years and their present-day relevance in India’s federal structure.

KEYWORDS

Westminster model, ceremonial role, emergency and diplomacy.

INTRODUCTION

When Dr. Rajendra Prasad first assumed office as India’s first President in 1950, the position was defined by a balance between ceremonial responsibilities and restricted executive authority. As the constitutional head, the President was expected to function based on the advice of the Prime Minister and the Council of Ministers, establishing a clear separation between nominal and actual power in governance. Nevertheless, the debates within the Constituent Assembly surrounding the scope of the President’s powers were both intense and complex.

During the Constitution’s drafting, many members of the Constituent Assembly, including Dr. B.R. Ambedkar, chairman of the drafting committee, envisioned the President’s role as predominantly ceremonial, similar to the Westminster model of parliamentary democracy. They contended that granting excessive discretionary power to the President could jeopardize democratic values and diminish the authority of the elected government. Dr. Ambedkar and most members of the Constituent Assembly held that real executive power should lie with the Prime Minister and the Council of Ministers, ensuring accountability to Parliament and safeguarding against any authoritarian tendencies. [1]

However, certain members, including K.M. Munshi and Dr. Rajendra Prasad, supported a more active role for the President. They expressed concern that a purely ceremonial head of state might lack the ability to respond decisively in times of national crises or safeguard constitutional values when the executive faltered.[2]

These discussions eventually resulted in a compromise, defining the President’s role as primarily ceremonial while including specific discretionary functions, such as the authority to return a bill for reconsideration and to invoke emergency provisions under Article 352.[3] Consequently, the establishment of the presidential office struck a balance between parliamentary sovereignty and the necessity for a stable constitutional head, evolving over time through judicial interpretations, constitutional amendments, and the demands of governance.

EVOLUTION OF THE PRESIDENT’S POWER

The Indian Constitution, adopted on January 26, 1950, established the office of the President as a pivotal yet predominantly ceremonial role within the framework of a parliamentary democracy. In contemporary India, the President’s role remains largely ceremonial, with real executive power being exercised by the Prime Minister and the Cabinet. However, the evolution of the President’s powers dates way back to the adoption of our very constitution.

Initially, during the formation of the constitution, our very first president of India, Dr. Rajendra Prasad, supported a more active role for the President. He expressed concern that a purely ceremonial head of state might lack the ability to respond decisively in times of national crises or safeguard constitutional values when the executive faltered. [4]

The first President, Dr. Rajendra Prasad, epitomized this role, with the President serving as a figurehead while actual executive power resided with the Prime Minister and the Council of Ministers. This design aimed to ensure that the President’s powers were exercised according to the advice of the elected government, reflecting a clear separation between ceremonial duties and real executive authority.

Dr. Rajendra Prasad also played an active role while formulation of the constitution and specifically during the debates on presidential powers. In the Constituent Assembly, Dr. Rajendra Prasad expressed concern about the lack of clarity in the “aid and advise” clause (Article 74(1)) and suggested that it should be explicitly stated in the Constitution. Dr. B.R. Ambedkar responded by indicating that an instrument of instructions binding the President would be formulated. However, Dr. Prasad clarified that such an instrument would only bind the President in exercising executive powers, not legislative ones. Despite Dr. Ambedkar’s assurance to review the matter, the Drafting Committee ultimately found the idea of this instrument unacceptable, and it was never implemented.[5]

Emergency, which remains a controversial topic even now marked the real evolution of presidential powers. Infact, the evolution of presidential powers began to take shape with the introduction of the 42nd Amendment Act of 1976. This amendment represented a significant departure from the original intent of the Constitution by expanding the President’s role during times of emergency.[6]

The 42nd Amendment introduced provisions for declaring a national, state, or financial emergency, granting the President broad authority to centralize control and override state governments. This expansion was motivated by the political context of the time, particularly the need to address perceived threats to national stability and governance. During the Emergency period from 1975 to 1977, these powers were used extensively, leading to the suspension of fundamental rights and the imposition of direct central control over states. While intended to safeguard national security, this period also highlighted concerns about the potential for misuse and the impact on democratic processes and civil liberties.[7]

Following the set back and all the backlashes, during the Emergency, the 44th Amendment Act of 1978 was enacted to restore the balance of power. This amendment sought to address the deficiencies of the 42nd Amendment by imposing stricter conditions on the declaration of emergencies. It required the President to act based on the advice of the Council of Ministers and substantial evidence of a breakdown in constitutional machinery before declaring an emergency.[8]

The 44th Amendment aimed to reassert democratic principles and ensure that emergency powers were not used to undermine federalism or individual rights. This legislative change was a direct reaction to the political climate of the 1970s and sought to prevent any future erosion of democratic norms.

Judicial interpretations too influenced the evolution of the presidential powers. For instance, the Supreme Court’s ruling in S. R. Bommai v. Union of India (1994) was a landmark decision that clarified the scope and limits of presidential authority, particularly concerning the imposition of President’s Rule in states.

The Apex Court ruled that the President must have objective evidence of a failure in constitutional machinery before taking such action and that such powers should not be exercised arbitrarily or based solely on central government advice. This ruling reinforced the need for transparency and accountability in the use of presidential powers and provided a judicial safeguard against potential misuse.[9]

COMPARING THE SHIFTS IN PRESIDENTIAL POWERS

The powers of the President of India have undergone notable changes since the drafting of the Constitution. Initially, the President was intended to serve as a ceremonial head of state, with most executive authority exercised by the Council of Ministers. The President’s discretionary powers were limited and could be used only in exceptional circumstances, such as when appointing a Prime Minister in the case of political uncertainty. Over time, however, the President’s role in political crises has evolved, particularly with the rise of coalition governments. Today, the President exercises more discretion in situations where no party has a clear majority, making critical decisions in forming a government, although these actions are still largely guided by constitutional norms.

In terms of emergency powers, the original framework allowed the President to declare national, state, or financial emergencies based on the advice of the Cabinet. However, following the misuse of these powers during the 1975 Emergency, the 44th Amendment introduced restrictions. These reforms ensured that emergency declarations, especially under Article 356 (President’s Rule in states), were subject to judicial review, and unilateral action by the President was curtailed. This shift emphasized a more cautious and balanced approach to the use of emergency provisions, preventing potential misuse.[10]

The power to issue ordinances under Article 123 has also seen significant evolution. Initially, the President had wide latitude to promulgate ordinances when Parliament was not in session. However, judicial oversight has increased, ensuring that this power is used only when necessary, and cannot substitute regular legislative processes. Ordinances are now subject to more stringent scrutiny, both by the courts and Parliament, ensuring they are temporary measures rather than tools for bypassing democratic procedures.

Judicial interpretations have played a key role in refining the President’s powers. In cases like S.R. Bommai, the Supreme Court placed limits on the arbitrary use of presidential discretion, particularly regarding the dismissal of state governments and the imposition of President’s Rule. Such rulings have ensured that the President’s decisions are subject to legal review, preventing the unchecked use of powers. This has significantly altered the balance, ensuring that presidential authority, while still important, operates within a framework of accountability and restraint.[11]

RESPONSIBILITIES OF A PRESIDENT [12]

The first citizen of India is the president. He has a ceremonial position that is distinct from the daily administration of the government, which is managed by the Council of Ministers.

Ensuring the Smooth Functioning of the Government: The President plays a vital role in maintaining the effective operation of the government. This includes appointing the Prime Minister, who must be a member of the majority party or coalition in the Lok Sabha. The President also holds the authority to appoint other key officials, such as the Chief Justice of India, governors of states, and various high-ranking officials. Additionally, the President has the power to dismiss officials if necessary. Another crucial function is the ability to summon and prorogue sessions of Parliament and to dissolve the Lok Sabha when required. These powers ensure that legislative proceedings and governmental operations proceed in an orderly and timely manner.

Upholding the Constitution: A fundamental responsibility of the President is to act as the guardian of the Constitution. This involves ensuring that all laws, policies, and actions taken by the government adhere to the constitutional framework. The President must ensure that the principles and provisions of the Constitution are respected and upheld, thereby safeguarding the democratic and legal integrity of the country.

Representing India: The President serves as the ceremonial representative of India both domestically and internationally. This includes hosting foreign diplomats and dignitaries, participating in state functions, and symbolizing India in various official capacities. The President’s role in representing the country helps foster diplomatic relations and showcases India’s national identity on the global stage.

Participating in the Legislative Process: The President also plays a significant role in the legislative process. This includes giving assent to bills passed by Parliament, which is a crucial step before a bill becomes law. The President can also withhold assent, sending the bill back to Parliament for reconsideration, or seek further clarification. Additionally, the President can address both Houses of Parliament, outlining the government’s agenda and policies, and can call for joint sessions of Parliament in cases of legislative deadlock. Through these functions, the President contributes to shaping and influencing legislative affairs.

POWERS OF A PRESIDENT

The President of India is the ceremonial head of the executive branch, with actions taken in his name. He can authenticate official documents, assign tasks to ministers, and appoint key officials like the Prime Minister and State Governors. The President also holds the power to administer Union Territories and declare scheduled or tribal areas.

Judicially, the President appoints judges and grants clemency. Legislatively, he can summon and prorogue Parliament, and introduce certain bills. Financially, the President oversees money bills and the annual budget. He represents India in international diplomacy and serves as the supreme military commander. Additionally, the President exercises emergency powers during national, state, or financial crises. The aforementioned powers are granted to a president by the constitution. Following are the statutes that reflect the aforementioned powers:

• Authentication: The President establishes rules for authenticating official documents and instruments (Article 77).[13]
• Appointments: The President appoints the Prime Minister, other ministers, the Attorney General, Comptroller and Auditor General, and State Governors, among others (Article 75).[14]
• Information and Investigations: The President can request information from the Prime Minister and other ministers, and can initiate investigations into the conditions of marginalized communities (Article 78).[15]
• Union Territories: The President appoints administrators for Union Territories (Article 239).[16]
• Scheduled/Tribal Areas: The President has the authority to declare areas as scheduled or tribal areas (Article 244).[17]
• Consultation with the Supreme Court: The President can seek advice from the Supreme Court on legal or factual matters, though this advice is not binding (Article 143).[18]
• Clemency: The President has the power to grant clemency, including pardons, reprieves, and commutations, to those convicted of offenses (Article 72).[19]
• Summoning and Proroguing: The President can summon and prorogue Parliament and dissolve the Lok Sabha on the advice of the Prime Minister (Article 87).[20]
• Joint Sitting: The President can summon a joint sitting of both Houses of Parliament, which is presided over by the Speaker of the Lok Sabha (Article 87).[21]
• Address and Messages: The President addresses Parliament at the commencement of each session and can send messages regarding bills (Articles 87, 86).[22][23]
• Nominations: The President nominates 12 members to the Rajya Sabha from fields of literature, science, art, and social service (Article 80).[24]
• Presiding Officers: The President appoints a member to preside over Lok Sabha proceedings when both the Speaker and Deputy Speaker positions are vacant (Article 93).[25]
• Disqualification Decisions: The President, in consultation with the Election Commission, decides on questions of disqualification of Parliament members (Article 103).[26]
• Bills and Ordinances: The President’s prior recommendation or permission is required for certain bills like money bills. The President can also promulgate ordinances when Parliament is not in session (Articles 117, 123).[27][28]
• Money Bills: Money bills can only be introduced in Parliament with the President’s prior recommendation (Article 110).[29]
• Annual Financial Statement: The President causes the Union Budget to be laid before Parliament (Article 110).[30]
• Grants: No demand for a grant can be made except on the President’s recommendation (Article 113).[31]
• Contingency Fund: The President can make advances from the contingency fund to meet unforeseen expenditures (Article 267).[32]
• Finance Commission: The President constitutes a Finance Commission every five years to recommend revenue distribution between the Centre and states (Article 280).[33]
• Treaties and Agreements: International treaties and agreements are negotiated and concluded on behalf of the President but require Parliament’s approval (Article 253).[34]
• Military Leadership: The President is the supreme commander of the defense forces of India, including the Army, Navy, and Air Force (Article 53(2)). [35]
• National Emergency: Imposed in case of war, external aggression, or armed rebellion (Article 352). [36]
• President’s Rule: Imposed when a state government cannot function according to the Constitution (Articles 356 & 365).[37][38]
• Financial Emergency: Imposed if the financial stability of India is threatened (Article 360).[39]

These powers collectively enable the President to function as the formal head of the Indian state, carrying out a range of duties from executive and legislative functions to diplomatic and military roles, while also having specific emergency powers.

RUBBER STAMP PERCEPTION OF THE PRESIDENCY

In Indian politics, the term “rubber stamp” refers to a position or figure that formally holds power but merely approves decisions made by others without exercising real authority or discretion.[40] The President of India, despite having significant constitutional powers, is often seen as a rubber stamp because most of their actions are carried out based on the advice of the Council of Ministers, particularly the Prime Minister, without room for independent decision-making. Following are few reasons behind this perception:

1. Constitutional Constraints: The Indian Constitution, through Article 74, mandates that the President must act on the advice of the Council of Ministers in nearly all matters. This reduces the President’s ability to exercise independent judgment or veto decisions. For example, when appointing key officials like governors or judges, or while signing bills passed by Parliament, the President is constitutionally obligated to follow the government’s advice, limiting personal discretion.[41]
2. Limited Discretionary Powers: While the President has discretionary powers in certain rare situations, such as in the appointment of a Prime Minister when no party has a clear majority in Parliament, these situations do not occur frequently. The President’s role is often limited to formalizing a decision that was already clear, rather than making an independent choice.
3. Regulated Emergency Powers: The President can declare national, state, or financial emergencies under Articles 352, 356, and 360. However, after the misuse of emergency powers during the 1975 Emergency under President Fakhruddin Ali Ahmed, stricter constitutional safeguards were introduced through the 44th Amendment (1978). For instance, the President can no longer declare a national emergency without the written recommendation of the Cabinet, which limits the scope for unilateral decision-making. This reform was a direct response to the misuse of power, where President Ahmed signed off on an emergency declaration at the request of then Prime Minister Indira Gandhi, without questioning or challenging it, exemplifying the “rubber stamp” role.[42]
4. Judicial Oversight: Several landmark judicial rulings have also limited the President’s powers. In the S.R. Bommai case (1994), the Supreme Court ruled that the use of Article 356, which allows the imposition of President’s Rule in a state, must be subject to judicial review. This judgment has significantly reduced the President’s power to independently impose President’s Rule. For example, when political instability rocked Karnataka in 1989, the President’s decision to impose President’s Rule was overturned by the Supreme Court, showcasing how judicial checks constrain the President’s role.[43]
5. Ordinance Power: Under Article 123, the President has the power to issue ordinances when Parliament is not in session. However, ordinances must be ratified by Parliament within six weeks of its reassembly, making the President’s ordinance-making powers temporary and dependent on parliamentary approval. A notable example is when President Pranab Mukherjee expressed concern over the repeated promulgation of ordinances, despite signing them as required by constitutional duty. His concerns highlighted the limited agency of the President, as even though he questioned the practice, he was bound to approve the ordinances on the government’s advice.[44]

While the President of India holds important formal powers, the overwhelming dependence on the advice of the Council of Ministers, judicial oversight, and constitutional checks result in the perception that the office is largely ceremonial, acting as a “rubber stamp” for government decisions. The aforementioned examples illustrate how the President’s role has been curtailed to ensure that the real executive authority remains with the elected government.

CONCLUSION

The office of the President of India, established in 1950, was designed to serve as the ceremonial head of state, balancing symbolic authority with limited executive power. From its inception, the role has been defined by a clear demarcation between ceremonial duties and real political power, which predominantly resides with the Prime Minister and the Council of Ministers. This balance reflects the principles of parliamentary democracy envisioned by the framers of the Constitution, including Dr. B.R. Ambedkar, who emphasized the need for the President to act on the advice of the elected government to safeguard democratic governance.

The evolution of the President’s powers has been shaped by constitutional amendments, judicial interpretations, and the political context of different eras with the introduction of the 42nd Amendment during the Emergency period marked a significant expansion of presidential powers, allowing for greater central control and oversight.

In contemporary India, the President’s role remains a complex amalgamation of ceremonial duties, legislative functions, and executive powers. From appointing key officials and overseeing legislative procedures to representing India in international affairs and exercising emergency powers, the President’s office encompasses a broad spectrum of responsibilities. The evolution of these powers highlights the dynamic interplay between tradition and modern governance, reflecting the ongoing need to balance the symbolic role of the President with the practical demands of constitutional leadership.

As the formal head of state, the President continues to embody the unity and integrity of the nation, ensuring that democratic principles are upheld while adapting to the evolving needs of governance. The presidency, thus, stands as a testament to India’s commitment to maintaining a robust and resilient democratic framework, even as it navigates the complexities of contemporary statecraft.

Today, the President of India remains a crucial figurehead within the framework of a parliamentary democracy, entrusted with a range of ceremonial, legislative, judicial, and emergency powers. The evolution of this office underscores the dynamic nature of constitutional governance, reflecting a balance between tradition and the need for adaptability in addressing the challenges of modern statecraft. Through its roles and responsibilities, the Presidency continues to play an essential part in upholding the integrity of India’s democratic institutions and ensuring the smooth functioning of its government.

REFERENCES

1. RAJYA SABHA, https://cms.rajyasabha.nic.in/UploadedFiles/Procedure/PracticeAndProcedure/English/26/EXECUTIVE.pdf (last visited Sep. 19, 2024).
2. Ruchi Tyagi, The President of India: The Constitutional Head with Discretionary Powers, Sage Journals (Sep. 19, 2024, 9:23 AM), https://journals.sagepub.com/doi/10.1177/0019556117720618.
3. Constitution of India 1950, 1950 (India).
4. Drishti IAS, https://www.drishtijudiciary.com (last visited Sep. 19, 2024).
5. Britannica, https://www.britannica.com/topic/president-of-India (last visited Sep. 19, 2024).
6. IIPA, https://www.iipa.org.in/publication/public/uploads/article/47611680072223.pdf (last visited Sep. 19, 2024).
7. HW English, https://hwnews.in/news/politics/indiras-emergency-and-the-precedent-of-rubber-stamp-president-in-india/https://hwnews.in/news/politics/indiras-emergency-and-the-precedent-of-rubber-stamp-president-in-india/  (last visited Sep. 21, 2024).
8. The Economic Times, https://economictimes.indiatimes.com/news/politics-and-nation/president-pranab-mukherjee-on-ordinances-parliaments-role-to-pass-laws-not-to-obstruct-proceedings/articleshow/45941471.cms?from=mdr (last visited Sep. 21, 2024).
9. One young India, https://www.oneyoungindia.com/cuet-and-upsc-general-studies-notes/is-president-a-rubber-stamp  (last visited Sep. 21, 2024).

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[1] RAJYA SABHA, https://cms.rajyasabha.nic.in/UploadedFiles/Procedure/PracticeAndProcedure/English/26/EXECUTIVE.pdf (last visited Sep. 19, 2024).

[2] Ruchi Tyagi, The President of India: The Constitutional Head with Discretionary Powers, Sage Journals (Sep. 19, 2024, 9:23 AM), https://journals.sagepub.com/doi/10.1177/0019556117720618.

[3] INDIA CONST. art. 352

[4] RAJYA SABHA, https://cms.rajyasabha.nic.in/UploadedFiles/Procedure/PracticeAndProcedure/English/26/EXECUTIVE.pdf (last visited Sep. 19, 2024).

[5] IIPA, https://www.iipa.org.in/publication/public/uploads/article/47611680072223.pdf (last visited Sep. 19, 2024).

[6] Drishti IAS, https://www.drishtiias.com/daily-updates/daily-news-analysis/1975-emergency-and-its-impact (last visited Sep. 19, 2024).

[7] Ibid

[8] Drishti IAS, https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/44th-constitutional-amendment-act-1978#:~:text=Modification%20Made%20by%20the%2044,following%20modifications%20to%20the%20COI.&text=The%20right%20to%20property%20was,Article%2031%20from%20the%20COI. (last visited Sep. 19, 2024).

[9] Drishti IAS, https://www.drishtiias.com/daily-updates/daily-news-analysis/s-r-bommai-v-union-of-india-case-1994  (last visited Sep. 19, 2024).

[10] Drishti IAS, https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/44th-constitutional-amendment-act-1978#:~:text=Modification%20Made%20by%20the%2044,following%20modifications%20to%20the%20COI.&text=The%20right%20to%20property%20was,Article%2031%20from%20the%20COI. (last visited Sep. 19, 2024).

[11]Drishti IAS, https://www.drishtiias.com/daily-updates/daily-news-analysis/s-r-bommai-v-union-of-india-case-1994  (last visited Sep. 19, 2024).

[12] Britannica, https://www.britannica.com/topic/president-of-India (last visited Sep. 19, 2024).

[13] INDIA CONST. art. 77

[14] INDIA CONST. art. 75

[15] INDIA CONST. art. 78

[16] INDIA CONST. art. 239

[17] INDIA CONST. art. 244

[18] INDIA CONST. art. 143

[19] INDIA CONST. art. 72

[20] INDIA CONST. art. 87

[21] Ibid

[22] Ibid

[23] INDIA CONST. art. 86

[24] INDIA CONST. art. 80

[25] INDIA CONST. art. 93

[26] INDIA CONST. art. 103

[27] INDIA CONST. art. 117

[28] INDIA CONST. art. 123

[29] INDIA CONST. art. 110

[30] Ibid

[31] INDIA CONST. art. 113

[32] INDIA CONST. art. 267

[33] INDIA CONST. art. 280

[34] INDIA CONST. art. 253

[35] INDIA CONST. art. 53 § 2

[36] INDIA CONST. art. 352

[37] INDIA CONST. art. 356

[38] INDIA CONST. art. 365

[39] INDIA CONST. art. 360

[40] One young India, https://www.oneyoungindia.com/cuet-and-upsc-general-studies-notes/is-president-a-rubber-stamp  (last visited Sep. 21, 2024).

[41] INDIA CONST. art. 74

[42] HW English, https://hwnews.in/news/politics/indiras-emergency-and-the-precedent-of-rubber-stamp-president-in-india/https://hwnews.in/news/politics/indiras-emergency-and-the-precedent-of-rubber-stamp-president-in-india/  (last visited Sep. 21, 2024).

[43] Drishti IAS, https://www.drishtiias.com/daily-updates/daily-news-analysis/s-r-bommai-v-union-of-india-case-1994  (last visited Sep. 21, 2024).

[44] The Economic Times, https://economictimes.indiatimes.com/news/politics-and-nation/president-pranab-mukherjee-on-ordinances-parliaments-role-to-pass-laws-not-to-obstruct-proceedings/articleshow/45941471.cms?from=mdr (last visited Sep. 21, 2024).

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