The Executive Power of the President in India

                                          The Executive Power of the President in India

This article is written by Abhinav Dubey (BALLB 2^nd Year) studying in ILS Law College 

Abstract:

In India, the President of the nation serves as the head of state and has broad executive authority. The Indian Constitution outlines the President’s administrative authority and designates the President as the head of state, commander in chief of the armed forces, and defender of the Constitution. The appointment and dismissal of important officials, the adoption of ordinances, the awarding of pardons and reprieves, and the authority to call, prorogue, and dissolve Parliament are just a few of the many responsibilities that fall under the President’s executive authority. Nonetheless, there are some restrictions on how the President may use his or her executive authority. The President must follow the Council of Ministers’ recommendations and must not take any actions that are in violation of the Constitution. In addition, some authority, like the pardoning power, is open to judicial review. In India, there has been much discussion and controversy around the extent and bounds of the President’s executive authority. Some have claimed that the President’s authority should be restricted to avoid abuse or misuse, while others have argued that the President’s authority should be increased to act as a stronger check on the other arms of government. In India, the President’s executive authority is a key component of the legal framework of the nation. Despite the President’s broad range of authority, certain restrictions are in place to make sure that he or she always acts in the nation’s best interest and in line with the Constitution.

Introduction:

India’s president serves as the nation’s head of state. Being the nation’s first citizen, the president also holds the titles of supreme commander of the Indian Armed Forces and leader of the executive branch. After gaining independence on August 15, 1947, when its constitution went into force, India became a republic on January 26, 1950, which saw the establishment of the presidency. Indirect presidential elections are conducted by using the legislative bodies of all the states and union territories of India, as well as the two houses of the Indian Parliament, all of which were elected by popular vote. Article 53 of the Indian Constitution stipulates that, with a few exceptions, the president may use their power directly or through a subordinate authority. However, the president’s executive powers are all exercised by the prime minister (a subordinate authority), who also consults with the Cabinet Ministers. The constitution requires the president to abide by the recommendation of the prime minister and cabinet if it does not go against it.

Origin:

India became independent from the British on August 15, 1947, at first as a dominion within the Commonwealth of Nations, with George VI as the king and a governor-general serving as his representative. Following the country’s declaration of independence, the Indian Constituent Assembly, led by B. R. Ambedkar, started the process of writing a brand-new constitution. India became a republic when its Constitution was finally adopted on November 26, 1949, and entered into force on January 26, 1950. The new position of President of India, initially held by Rajendra Prasad, supplanted the positions of monarch and governor-general. 

Qualification of president:

A candidate for the office of President of India must meet several requirements to be eligible to run in the presidential elections. According to Article 58 of the Constitution, in order to be eligible for the position of President of India, a person must be an Indian citizen, be at least 35 years old, and meet the requirements for membership in the Lok Sabha. Furthermore, no one is permitted to run for president if they hold any paid positions. A person who is elected as the President is deemed to have vacated his seat when he assumes the office of President because he is granted executive powers of the Union and cannot therefore be a member of any State or Union Legislature. If the candidate for the position of President was a member of a legislature at the time of his election. the 59th article

Election Process of President:

• Nomination: An Electoral College that includes elected members of both houses of Parliament as well as elected representatives from state and federal legislative assemblies chooses India’s president. Candidates are expected to file their nomination papers with the returning officer in response to a notification soliciting nominations from the Election Commission of India.

• Scrutiny: The returning officer examines the nominations, and those whose papers are deemed to be in order are proclaimed to be valid candidates.

• Campaigning: For the Indian presidential election, there is no organized campaigning procedure. Candidates can meet with Electoral College members and present their case for why they ought to be elected.

• Voting: Members of the Electoral College vote on the day of the election, which is held through a secret ballot. The counting of votes is done on the same day, and the results are announced.

• Inauguration: On a particular day chosen by the Election Commission, the victor is sworn in as President of India.

Tenure of president: 

After winning the presidency, the chosen individual assumes control. Regarding the tenure or term of the President, Article 56 contains the relevant legislation. The President, in accordance with this Article, takes office for a term of five years beginning on the day they take it. Even after the initial five-year term expires, the President can stay onto the position until the following duly elected person assumes control.

The President’s term may extend beyond five years if he or she is re-elected because anyone who has previously been elected president is eligible to run again. (Article 57)

A President can choose to leave office before the end of his term as well. By notifying the Vice President in writing, he may quit

Executive power of president:

In India, the executive power of the President is derived from the Constitution, and it is defined and regulated by various provisions of the Constitution. Some of the key powers and duties of the President in India include:

Appointment of Prime Minister: Article 75(1) of the Indian Constitution gives the President the authority to choose the Prime Minister in that country. This clause states that the President appoints the Prime minister, and on the Prime Minister’s recommendation, the President appoints the other Ministers. The President’s power to appoint the Prime Minister is not an absolute power, as it is subject to the condition that the person appointed as the Prime Minister must be a member of either house of Parliament. The President also exercises this power on the basis of the outcome of a general election, as the political party or coalition that secures a majority of seats in the Lok Sabha (lower house of Parliament) chooses its leader, who is then appointed by the President as the Prime Minister. The President can choose the Prime Minister based on conversations with the leaders of other parties if no party or alliance has a clear majority. Given these circumstances, it is predicted that the President will pick someone who will likely receive a majority in the Lok Sabha.

Appointment of Ministers: The Prime Minister, who counsels the President on the selection of the Ministers, recommends that the President use this authority. When it comes to choosing ministers, the President’s top counsellor is the prime minister. If the Prime Minister’s suggestion is unsatisfactory, the President may also choose the Ministries himself. It is crucial to remember that the President only has legal authority to name Ministers; the Prime Minister actually selects the Ministers. The Prime Minister is the head of the political party or coalition with a majority in the Lok Sabha (lower house of Parliament), and he or she suggests candidates for ministerial appointments.

Dismissal of Ministers: Article 75(2) of the Indian Constitution gives the President of India the authority to fire a minister. This clause states that the Ministers serve at the President’s pleasure and are subject to dismissal at any moment. It is crucial to remember that the President only uses this authority at the Prime Minister’s suggestion. The nomination and dismissal of Ministers are handled by the Prime Minister, who also serves as the head of the Council of Ministers. As a result, the President won’t fire a Minister until the Prime Minister suggests it.

Appointment of Governor: According to the Indian Constitution, the President has the authority to choose a state’s governor and set the terms of that governor’s office. The President consults with the Prime Minister and other senior members of the ruling party before appointing a governor. Before making the appointment, the President takes into account a number of variables, including the state’s political and social climate, the current law-and-order situation, and the qualifications of the candidate. The Governor serves at the discretion of the President, who has the power to oust him at any time. In reality, the governor’s term typically matches the duration of the current administration.

Control over Armed Forces: The President has the authority to declare war or peace, to give instructions to the armed forces, and to make all other significant decisions pertaining to the nation’s security. The Chiefs of the Armed Forces and other senior officers can also be appointed by the President. Moreover, the President has the authority to fire military personnel.

The Ministry of Defense, which is in charge of overseeing national defense concerns, is how the President executes these authorities. A cabinet minister oversees the Ministry of Defense and is in charge of advising the President on subjects pertaining to defense

Emergency Financial Power: According to Article 360 of the Indian Constitution, the President may declare a financial emergency if he or she determines that the country’s financial stability or credit is in danger. When a financial emergency is declared, the President has the authority to enact a number of measures to regain financial stability, including lowering government employee salaries and benefits, reducing non-essential spending, and suspending the ability to petition the courts to enforce specific property or contract rights. The President can also provide financial directions to the states during a financial emergency. If the state government disobeys, the President may even assume control of the state’s finances. The state of financial emergency, however, can only be declared if the circumstance is regarded to be of severe importance and cannot be remedied using conventional financial procedures.

Appointment of Judges: The Chief Justice of India and other senior members of the Supreme Court and High Courts are consulted prior to making any appointments to the judiciary. After weighing the suggestions of the Chief Justice of India and the other judges, the President makes the final decision regarding the appointment of judges. The National Judicial Appointments Commission (NJAC) was established by the Indian Constitution to ensure that judges are appointed in a fair and transparent way. The NJAC is tasked with presenting recommendations to the President about the appointment and transfer of judges. The NJAC was, however, deemed illegal by the Supreme Court in 2015, and the process of appointing judges returned to the former arrangement under which the President approved nominations after consulting with the Chief Justice of India and other senior judges.

Discretionary Powers: In some circumstances, the President may decide to take action without following the advice of the Council of Ministers. For instance, the President can decide not to sign a piece of legislation that Parliament has approved and send it back for revision.

Case laws Related to executive power of president:

1.  S.R Bommai v. Union of India (1994)

              Facts: In 1989, the Indian National Congress (INC) government at the center dismissed the Janata Dal government in Karnataka under Article 356, citing “breakdown of constitutional machinery” in the state. S.R. Bommai, the then Chief Minister of Karnataka, challenged the dismissal in the Supreme Court, arguing that it was unconstitutional and politically motivated.

The case raised several questions regarding the scope of the President’s power to dismiss a state government under Article 356, including whether the decision to dismiss was subject to judicial review and whether the President’s decision could be challenged on the ground of mala fides or bad faith.

Judgement: The Supreme Court ruled that the President’s ability to dissolve a state government under Article 356 was subject to judicial review and could only be utilized in extraordinary situations, such as when the state’s constitutional system had completely broken down. The Court further ruled that mala fides or poor faith might be used as a defense to the President’s dismissal of a state government. The Court also established guidelines for the use of the President’s authority to dissolve a state government, including the necessity for the President to have evidence of a constitutional crisis in the state before him and the requirement that the President give the state government a chance to argue its case before making a decision.

• Rameshwar Prasad and Others v. Union of India and Another (2006)

            Facts: President’s Rule was enacted in Bihar in 2005 when the state legislature was dissolved. The President then enacted an ordinance to modify the requirements for candidates running in the state’s by-elections. Rameshwar Prasad and others contested the edict, claiming the President had exceeded his constitutional authority by enacting it.The lawsuit presented various issues, including whether the President’s authority to promulgate ordinances under Article 123 of the Constitution is unlimited and if the ordinance was constitutionally permissible.

Judgement: The Supreme Court ruled that the President’s authority to enact ordinances was not unassailable and was open to judicial review. The Court further determined that the disputed ordinance did not fall under the purview of the Constitution because it was passed primarily for political reasons and not to address an emergency or unforeseen circumstance. The Court further ruled that the President’s authority to issue ordinances was meant to be used in emergency situations when quick action was required but there was not enough time to call a meeting of the Parliament. The Court established rules for the President’s use of his or her authority to issue ordinances, including the necessity that the ordinance addresses an urgent problem, not further a political agenda, and be constitutionally permissible.

• Special Reference no 1 of 2002

                Facts: The Constitution (97th Amendment) Act, 2011, which intended to establish reservations in local self-government organizations, was referred to the Supreme Court of India by the President of India for its decision pursuant to Article 143 of the Constitution. The case presented various issues about the constitutionality of the 97th Amendment, including whether it violated the fundamental principles of federalism, free and fair elections, and the fundamental structure of the Constitution.

Judgement: According to the Supreme Court, neither the federalism principle nor the idea of free and fair elections was violated by the 97th Amendment, which was upheld as constitutional. The Court determined that the amendment’s goals were to develop local self-government organizations and ensure that marginalized people participated more actively in local governance. In order to ensure greater representation and involvement of historically excluded groups in the democratic process, the Court further decided that reserving seats for women and other underrepresented communities in local self-government organizations constituted a valid form of affirmative action.

Executive Power of President in other Countries:

United states:  As the leader of the executive branch, the President of the United States is in charge of implementing laws, supervising the military forces, and managing international affairs. Federal judges, agency heads, and other officials may be appointed by the President with the Senate’s advice and permission. As well as having the authority to reject legislation approved by Congress, the President also has the right to issue executive orders

France: The Prime Minister is chosen by the President, who also appoints and removes the other members of the cabinet on the Prime Minister’s recommendation. Unlike to common procedure in other nations, the President is not required to name the leader of the majority party as Prime Minister. Participation in the government and holding the position of Prime Minister are incompatible with being a member of Parliament. Only those individuals who the President believes can command the trust of the National Assembly are chosen to serve as Prime Minister. He appoints the majority of senior civil and military authorities

Russia: The Russian President serves as both the nation’s head of state and its supreme military commander. The President is able to nominate and remove the Prime Minister and other government officials, present bills to the parliament, and issue decrees and executive orders. The President is also able to forgive and amnesty people

China: The head of state of China is the president, who primarily exercises ceremonial authority. The President appoints and removes ambassadors, and he or she represents China in international affairs. In addition, the President has the authority to ratify treaties and to issue clemency and pardons

These are just a few illustrations of the various executive powers that presidents in various nations have. The Constitution and other pertinent laws of the nation usually specify the kind and scope of the President’s authority.

Conclusion: 

The President’s executive authority is an essential component of any democratic government. The President oversees making sure that the government abides by the rules and laws outlined in the Constitution. This article shows that the President of India possesses substantial executive authority, albeit mostly ceremonial. Although the President has the authority to dissolve Parliament and designate ministers, he or she does so only after consulting with the Prime Minister and the Council of Ministers. It is crucial to remember that the President’s executive authority is constrained by the rules of the Constitution, and he or she is not permitted to act independently or against those rules. The President’s job is to serve as a national symbol of unity and to defend the nation’s democratic values. All in all, the President’s executive authority is a crucial part of any democratic government, thus it’s critical that his or her function is defined and understood. The nation can develop by ensuring that the President’s authority is exercised in accordance with the Constitution, which would also enable the government to run efficiently and democratically.