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 governance structure comprises three branches:
- Judiciary: Supreme Court, High Courts, and all Subordinate Courts.
- Executive: At the Union level, this includes the President and Governors.
- Legislature: Comprising Parliament (Lok Sabha and Rajya Sabha) and State Legislative bodies.
The executive power of the Union is vested in the President of India, who is the first citizen of the country and acts as a symbol of unity, integrity, and solidarity. To be eligible for the office of the President, a person must:
- Be a citizen of India.
- Have completed the age of thirty-five.
- Be qualified to be a member of the House of the People.
- Not hold any office of profit under the Government of India, any State Government, or any local or other authority.
The President is elected by an electoral college, which consists of:
- Elected members of both Houses of Parliament.
- Elected members of the Legislative Assemblies of States.
The President can also be impeached for violating the Constitution.
To understand the powers of the President, one must analyze the model of government. India follows a Parliamentary form of government, as distinguished from the American Presidential system. The key feature of the Parliamentary system is that the head of the state is a constitutional head, while real executive powers rest with the Council of Ministers, headed by the Prime Minister. The Council of Ministers is accountable to the House of the People.
Though executive power is vested in the President, he exercises this power with the aid and advice of the Council of Ministers. Members of the Council of Ministers are elected representatives of the people and are part 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 relate to the branch of government responsible for making laws. The legislative powers of the President are derived from 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 during the first session after each general election once members take their oath and the Speaker is elected.
- Article 111: When a bill is passed by both Houses, it must be presented before the President. The President can:
- Give assent to the bill.
- Withhold assent.
- Return the bill for reconsideration. However, if Parliament passes the bill again, the President must give his assent.
- For different types of bills:
- Ordinary Bills: The President can agree, withhold assent, or return them for reconsideration.
- Money Bills: The President can either approve or withhold assent but cannot return it for reconsideration.
- Constitutional Amendment Bills: The President must approve; he cannot withhold assent or return them.
- If a bill passed by a State Legislature is reserved by the Governor for Presidential consideration, the President can:
- Give assent.
- Withhold assent.
- Direct the Governor to return it (except for money bills) for reconsideration by the State Legislature. The President is not obligated to approve it even if it is re-passed by the State Legislature.
- The President can promulgate ordinances when Parliament is not in session. These ordinances must be approved within six weeks after Parliament reassembles. The President can also withdraw an ordinance at any time.
- The President nominates 12 members to the Rajya Sabha, who possess expertise in literature, art, science, or social service.
- The President presents important reports before Parliament, including:
- Annual Financial Budget.
- Report of the Comptroller and Auditor General.
- Recommendations of the Finance Commission.
- Report of the Union Public Service Commission.
- Reports of Special Commissions for SCs, STs, and Backward Classes.
- Report of the Special Officer for Linguistic Minorities.
C) Executive Powers
The Constitution grants extensive executive powers to the President. Under Article 77(1), 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 frames rules for the convenient transaction of government business and allocates responsibilities among ministers.
- The President has the power to appoint:
- The Prime Minister and, on his advice, other Ministers of the Union.
- Judges of the Supreme Court and High Courts.
- Governors of States.
- Attorney General of India.
- Comptroller and Auditor General.
- Chairman and Members of the Public Service Commission.
- Members of the Finance Commission.
- Chief Election Commissioner and other Election Commissioners.
- Chairpersons and Members of Commissions for Scheduled Castes, Scheduled Tribes, and Backward Classes.
- These officials hold office during the pleasure of the President, meaning he has the power to remove them as per the constitutional procedures.
- However, the President must exercise his 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. He holds significant military authority, including:
- Declaring war and peace.
- Exercising military powers as per law.
- Acting based on the advice of the Cabinet in military matters.
The Parliament regulates and controls the exercise of the President’s military powers, making them subordinate to his executive authority.
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 an offence:
- By Court Martial;
- For an offence 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 purpose of conferring this “judicial” power on the President is to correct possible judicial errors, as no human system of judicial administration can be entirely free from imperfections.
In Kehar Singh v. Union of India, a five-judge bench of the Supreme Court examined in detail 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 dismissed. Subsequently, he presented a petition to the President for a pardon, requesting that his representatives be allowed to explain his case in person.
The President rejected the petition on the advice of the Union Government without reviewing the merits of the Supreme Court’s decision. The Supreme Court held that while exercising the pardoning power, the President can scrutinize the evidence on record and reach a different conclusion regarding both the guilt and the sentence imposed on Kehar Singh. However, in doing so, the judicial record remains intact.
The Court further ruled that:
- Kehar Singh had no right to be heard by the President.
- The manner of consideration of the petition lies entirely within the President’s discretion.
- The Court need not lay down specific guidelines for exercising Article 72, as it has the “widest amplitude” to cover various cases.
- The President is not required to provide reasons for the order of pardon.
- The power of pardon is part of the Constitutional scheme and cannot be subjected to judicial review on its merits.
Accordingly, the President must consider the matter afresh, in line with the law established in this case.
F) DIPLOMATIC POWERS
All treaties and international agreements are negotiated and concluded in the name of the President, though they are subject to ratification by the President.
G) EMERGENCY POWERS
The Emergency Powers provided in Part XVIII (Articles 352 to 360) of the Constitution arm the President with enormous emergency powers. The Constitution envisages three types of emergencies:
- Emergency arising out of war, external aggression, or armed rebellion.
- Emergency due to the failure of constitutional machinery in a State.
- Financial Emergency.
These powers enable the President to take swift action in times of crisis to preserve national security and governance.
H) ORDINANCE POWER
The most significant legislative power of the President is the Ordinance-making power. The President may withdraw an ordinance at any time. An ordinance promulgated under Article 123 has the same force and effect as an Act of Parliament. It is not an executive or administrative action but a legislative act. This power is vested in the President to address unforeseen or urgent matters.
In R. K. Garg v. Union of India, a five-judge bench of the Supreme Court, by a 4:1 majority (with Gupta, J. dissenting), ruled that the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981, was not ultra vires of Article 123. The Court held that:
- The President is competent to issue an ordinance amending or altering tax laws.
- The Ordinance-making power coexists with Parliament’s power to make laws.
- No limitations can be read into the legislative power of the President.
- The object of this power is to enable the executive to deal with urgent or unforeseen matters, including situations where a law is declared void by a court.
In A.K. Roy v. Union of India, the Supreme Court emphasized that an ordinance is law and results from the exercise of legislative power. It is considered “law” for the purposes of Article 21.
I) CONCLUSION & COMMENTS
In India’s democratic framework, the President of India plays a crucial role as the highest constitutional authority. Although the President is primarily the head of the Executive, he/she influences Indian politics significantly. Through various responsibilities, the President ensures the coordination and effective functioning of the three branches of the Union Government.
J) REFERENCES
1. Books / Commentaries / Journals Referred
- Dr. J.N Pandey, Constitutional Law of India
2. Online Articles / Sources Referred
- rauscompass, Legislative power of the President ~ UPSC Polity Notes – Available at (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
