Authored By – VANSHIKA DHIMAN, AMITY UNIVERSITY, HARYANA
A) Introduction
The notion of power separation among the three branches of government has evolved since ancient times. Montesquieu, a French philosopher, expanded on this idea in the 18th century. India’s three branches of government include the judiciary (Supreme Court, High Courts, and all subordinate courts), the executive (at the Union level, the President and Governors), and the legislature (Parliament, Lok Sabha, Rajya Sabha, and State legislative bodies).
The Executive power of the Union is vested in the President, who is the first citizen of India and symbolizes the unity, integrity, and solidarity of the nation. The President must be a citizen of India, at least thirty-five years old, and qualified to be a member of the House of the People. Additionally, the President must not hold any office of profit under the Government of India, the government of any state, or any local or other authority. The President is elected by an electoral college, which consists of elected members of both Houses of Parliament and elected members of the Legislative Assemblies of the states. The President can also be impeached for violating the Constitution.
To understand the powers of the President, it is essential to analyze the model of government. India has a Parliamentary form of government, as opposed to the Presidential system followed in the United States. In the Parliamentary system, the head of state (the President) is a constitutional head, while real executive power lies with the Council of Ministers, led by the Prime Minister. The Council of Ministers is accountable to the House of the People (Lok Sabha). Though the executive power is vested in the President, it is exercised with the aid and advice of the Council of Ministers. The members of the Council of Ministers are elected representatives and members of the legislature.
Keywords: Constitution, President, Executive Power, Parliamentary Form of Government
B) Legislative Powers
Legislative power refers to the authority to make laws or govern the legislative branch that enacts laws. The legislative powers of the President are vested in various articles of the Constitution of India.
- Article 85: The President has the power to summon both Houses of Parliament, prorogue their sessions, and dissolve the Lok Sabha.
- The President delivers a special opening address to both Houses of Parliament assembled during the first session after each general election, after the members take their oath and the Speaker is elected.
- Article 111: When a bill is passed by both Houses, it must be presented to the President. The President may:
- Give assent to the bill.
- Withhold assent from the bill.
- Return the bill (except a Money Bill) to Parliament for reconsideration. If Parliament passes the bill again, with or without amendments, the President must give assent.
- In case of Ordinary Bills, the President may:
- Agree to the bill.
- Withhold assent.
- Send it back to Parliament for reconsideration.
- In case of Money Bills, the President may:
- Give assent.
- Withhold assent (but cannot return it for reconsideration).
- In case of Constitutional Amendment Bills, the President must give assent and cannot withhold or return the bill.
- When a state legislature passes a bill and the Governor reserves it for the President’s consideration, the President may:
- Give assent to the bill.
- Withhold assent to the bill.
- Return the bill (except a Money Bill) for reconsideration by the state legislature. Notably, even if the state legislature passes the bill again, the President is not obligated to give assent.
- The President can promulgate ordinances when Parliament is not in session. These ordinances must be approved by Parliament within six weeks of reassembly. The President can also withdraw an ordinance at any time.
- The President can nominate 12 members to the Rajya Sabha who have expertise in literature, art, science, or social service.
- The President is responsible for laying important reports before Parliament, including:
- Annual finance budget
- Report of the Comptroller and Auditor General
- Recommendations of the Finance Commission
- Reports of the Union Public Service Commission
- Reports of the Special Commission for SCs and STs
- Reports of the Backward Classes Commission
- Report of the Special Officer for Linguistic Minorities
C) Executive Powers
The President enjoys extensive executive powers conferred by the Constitution. Article 77(1) states that the executive power of the Union is vested in the President.
- All executive functions are executed in the name of the President and authenticated as per the prescribed rules.
- The President can make rules for the convenient transaction of government business and the allocation of responsibilities among ministers.
- The President has the power to appoint key officials, including:
- Prime Minister and, on his advice, other Union Ministers.
- Judges of the Supreme Court and High Courts.
- Governors of States.
- Attorney General of India.
- Comptroller and Auditor General (CAG).
- Chairpersons and Members of the Public Service Commission.
- Members of the Finance Commission.
- Chief Election Commissioner and other Election Commissioners.
- Chairpersons and Members of the Scheduled Castes (SC) and Scheduled Tribes (ST) Commissions.
- Chairpersons and Members of the Backward Classes Commission.
These officials hold office at the pleasure of the President, meaning they can be removed, but only as per constitutional procedures. However, the President exercises these executive powers on the advice of the Council of Ministers.
D) Military Powers
The President is the Supreme Commander of the Defence Forces of India. The President has the power to:
- Declare war and peace, but only as per constitutional provisions.
- The exercise of military power is subject to parliamentary control.
- Parliament has the authority to regulate and control the President’s military powers.
- The military powers of the President are subordinate to the executive power, meaning they must be exercised on the advice of the Council of Ministers.
E) PARDONING POWERS
Under Article 72, the President has 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 offense:
- By Court Martial;
- An offense against any law relating to a matter to which the executive power of the Union extends; or
- In all cases where the sentence is one of death.
The objective of conferring this “judicial” power on the President is to correct possible judicial errors, as no human system of judicial administration is free from imperfections.
In Kehar Singh v. Union of India, a five-judge Bench of the Supreme Court examined the scope of the President’s pardoning power under Article 72. The petitioner, Kehar Singh, was convicted of murder for assassinating Prime Minister Smt. Indira Gandhi and sentenced to death. The High Court confirmed the sentence, and his appeal to the Supreme Court was also dismissed. Subsequently, he filed a petition for pardon to the President, requesting that his representatives be allowed to present his case personally.
The President, on the advice of the Union Government, rejected the petition without reviewing the Supreme Court’s decision confirming the death sentence. The Supreme Court held that while exercising his pardoning power, the President has the authority to scrutinize the evidence on record and reach a different conclusion regarding both guilt and sentence. However, this does not mean that the President can amend, modify, or supersede the judicial record, as it remains intact.
The Court further ruled that:
- Kehar Singh had no right to be heard personally by the President.
- The manner of consideration of the petition is entirely at the discretion of the President.
- There was no requirement for specific guidelines in exercising Article 72, as it is of widest amplitude and applies to diverse cases.
- The President is not obligated to provide reasons for his decision.
- The order of the President cannot be subjected to judicial review on its merits, though procedural irregularities may be examined.
Accordingly, the President must reconsider the matter in line with the law laid down in this case.
F) DIPLOMATIC POWERS
All treaties and international agreements are negotiated and concluded in the name of the President, although they are subject to ratification by the President upon the advice of the Council of Ministers.
G) EMERGENCY POWERS
The Emergency Powers under Part XVIII (Articles 352 to 360) of the Constitution empower the President with enormous authority during critical situations. The Constitution provides for three types of emergencies:
- National Emergency (Article 352): Arising from war, external aggression, or armed rebellion.
- State Emergency (Article 356): Due to the failure of constitutional machinery in a State.
- Financial Emergency (Article 360): Due to financial instability in the country.
During an emergency, the President assumes extraordinary powers, allowing suspension of Fundamental Rights, extension of the Union’s authority over State governments, and financial control over State budgets.
H) ORDINANCE POWER
The most significant legislative power of the President is the Ordinance-making power under Article 123. The President can promulgate an ordinance when Parliament is not in session, and it carries the same force and effect as an Act of Parliament. However, an ordinance:
- Must be approved by Parliament within six weeks of its reassembly.
- Can be withdrawn at any time by the President.
- Cannot be treated as an executive or administrative action.
- Exists to deal with urgent or unforeseen matters.
In R.K. Garg v. Union of India, a five-judge Bench of the Supreme Court (4:1 majority, Gupta, J. dissenting) upheld the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981, as valid under Article 123. The Court ruled that:
- The President can issue ordinances amending or altering tax laws.
- The ordinance-making power is coextensive with the legislative power of Parliament.
- No additional limitations can be imposed on the President’s legislative powers.
- The purpose of ordinance-making power is to allow the executive to respond to urgent or unforeseen situations, including cases where a law is declared void by the judiciary.
In A.K. Roy v. Union of India, the Supreme Court emphasized that:
- An ordinance is a law and a product of legislative power.
- It qualifies as “law” under Article 21, ensuring that its enforcement does not violate the right to life and personal liberty.
Thus, the ordinance-making power of the President is a crucial legislative tool, ensuring that the executive can address urgent issues when Parliament is not in session.
I) CONCLUSION & COMMENTS
In India’s democratic framework, the President serves as the highest constitutional authority. Although the President is the titular head of the Executive, he or she plays a pivotal role in Indian politics. Through various responsibilities, the President ensures that the three branches of government—Legislative, Executive, and Judiciary—work in coordination and function smoothly.
J) REFERENCES
1. Books / Commentaries / Journals Referred
- Dr. J.N Pandey, Constitutional Law of India
2. Online Articles / Sources Referred
- Rau’s Compass, “Legislative Power of the President ~ UPSC Polity Notes” – https://compass.rauias.com/polity/legislative-power-of-the-president/ (last visited Jan 28, 2025).
3. Cases Referred
- A.K. Roy v. Union of India
- R.K. Garg v. Union of India, A.I.R 1981 SC 2139
- Kehar Singh v. Union of India, A.I.R 1989 SC 653
4. Statutes Referred
- Constitution of India
