Article 52 of the Constitution of India states that there shall be a President of India. The President will be regarded as the Constitutional Member.
Article 58 talks about the qualification of being the President, which is mentioned below :
- The President shall be a citizen of India by birth or naturalization.
- He must have completed 35 years of age.
- He should be qualified for the election of the Lok Sabha.
- He should not hold any office of profit.
For contesting in the election, the person needs 50 proposers.Rs. 15000/- to be deposited with the Reserve Bank of India and 1/6th of the votes are needed in the presidential election.
Provided, the President should not be a member of either house of the Parliament, and if he is, then he needs to vacate his seat before entering the President’s office.
As per the new Rules, the salary of the President is Rs. 5 lakh/month without payment of rent of Rashtrapati Bhavan. He is also entitled to such emoluments and allowances as determined by the Parliament. His emoluments and allowances cannot be reduced during his term of office. The President is immune from the criminal proceedings during the time of his office; however, in case of civil proceedings, two months prior notice should be given to him.
MEMBERS ELIGIBLE TO VOTE
Article 54 talks about the people who are eligible to vote for the presidential election :
- Members of Lok Sabha
- Members of Rajya Sabha
- Members of Legislative Assembly including Delhi and Puducherry.
Note: Nominated members are not eligible to vote for the presidential election.
Article 60 talks about the Oath/Affirmation taken by President includes :
- Oath to faithfully execute the office.
- Oath to preserve, protect, and defend the Constitution and laws.
- Oath to devote himself to service and well to be of the people of India.
Note: The President takes an oath in front of the Chief Justice of India (CJI), in his absence, the senior-most Judge of the Supreme Court.
TENURE OF PRESIDENT
Article 56(1) states that the President shall hold the office till:
- Five years from the date when he entered his office.
- He can resign anytime by giving resignation to the Vice President.
- Can be removed by the impeachment process.
- Can hold the post beyond five years until the successor assumes charge.
Note: In the USA, the President can be elected only two times for four years each, whereas, in India, he can be elected any number of times.
GROUNDS AND PROCESS FOR IMPEACHMENT OF PRESIDENT
- When he violated the provisions of the Constitution.
- The impeachment process can be initiated against him by either house of Parliament.
- The charge should be signed by 1/4th members of the house, 14 days prior notice to be given to him.
- Bills should be passed by 2/3rd members of each house, and then the impeachment process is completed.
Note: The President has the right to appear during the investigation process initiated against him.
Note: Members of Lok Sabha, Members of Rajya Sabha, Nominated Members, and Anglo Indians are eligible to vote during the impeachment process.
REASONS FOR PRESIDENT VACATING HIS OFFICE
I. Expiration of his tenure – Due to this reason, the election should be held before the expiration of the tenure of the then President. In this case, the Vice President doesn’t get the chance to become President.
II. Resignation or Removal or Death – Due to this reason, some process needs to be followed:
- The election should be held within six months.
- Newly elected President remains in office for five years.
- During those six months, the Vice President will act as President.
Note: If the Vice President is absent, then CJI or Senior Most Judge of the Supreme Court will act as President.
FUNCTIONS AND POWER OF PRESIDENT
- All executive actions taken by the government are in the name of the President.
- Appoints Attorney General of India, Prime Minister, Governor, Comptroller and Auditor General of India, etc.
- Declared the areas of Scheduled Castes and Scheduled Tribes in the country.
- Summon, prorogue, dissolve Lok Sabha, addresses the Parliament.
- Can appoint any member in Lok Sabha, appoints Speaker, Deputy Speaker.
- President has the power to issue an ordinance.
Prior Recommendation is needed from the President to introduce a Money Bill.
The President is the Supreme Commander of Defence Forces.
- Appointment of Chief Justice of India (CJI), Supreme Court, and High Court Judges.
- Article 143 states the President to take advice from the Supreme Court, not binding on the President.
- Power to grant Pardon to the convicts in the form of Remission, Respite, etc.
- The President has the power to appoint the Prime Minister where no party has got a clear majority in Lok Sabha or in case of the sudden death of the Prime Minister in the office with no obvious successor.
- Dismissal of the Council of Ministers when they can’t prove their confidence in Lok Sabha.
- Dissolution of Lok Sabha, if Council of Ministers has lost majority.
VETO POWER OF PRESIDENT
The bill can become an act, only after getting the assent of the president. The President has three alternatives mentioned below:
- Give assent
- Withhold Assent
- Returning the Bill for consideration, this can only be done once by the President and the Parliament can send the Bill again with or without consideration.
Note: The President can ask for a reconsideration of the bill.
Veto power means the power of the President to refuse the approval of the Bill and can restrict it from forming into a new law.
There are three types of Veto Power given to the President, as follows:
- Absolute Veto Power
The President has the power to withhold the Bill for his assent, to restrict it from becoming an Act. It includes Private Member Bill and Government Bill when Cabinet resigns.
- Suspensive Veto Power
Returns the Bill for consideration to the Parliament, if the Bill is passed with or without amendment, the President has to give assent and cannot pass the Bill again for consideration.
Note: The President does not possess this veto power in case of a money bill.
- Pocket Veto Power
No action is taken by the President, i.e. he neither rectifies, rejects nor returns the Bill, and keeps the Bill withholding for an infinite period.
Note: In the USA, the time limit to hold a Bill is ten days, whereas there is no time period stated in the Indian Constitution.
ORDINANCE MAKING POWER OF PRESIDENT
Article 123 of the Constitution of India states the promulgating power to the president to make an ordinance. The Bill brought during this period has the same effect and force as that of the Act brought by the Parliament. During this time, none of the houses is in session, and there is a need to bring a new law according to the situation of the country.
Note: If the President is satisfied, then only this power can be exercised.
As per the 44th Amendment Act 1978, in the landmark case of R.C Cooper V. Union of India 1970, the court held that all ordinances are subject to Judicial Review and mentioned some of the guidelines mentioned below:
- Ordinance Can be brought on those subjects in which the Parliament can make laws.
- Cannot be subject to abridging the Fundamental Rights of People.
- When the recess gets over, the ordinance must be laid down before both the houses. If approved by both the houses, then is eligible to become an Act.
- If no action is taken by Parliament, the ordinance itself collapses after the expiry of six weeks, or if Parliament passes a resolution disapproving it, ordinance ceases to operate.
The President has the power to withdraw the ordinance at any time. He does not have discretionary power, as he can only promulgate the Ordinance in consideration to the aid of the Prime Minister and Council of Ministers.
Note: Ordinance can be in operation for a maximum period of six months excluding six weeks.
PARDONING POWER OF PRESIDENT
Article 72 of the Constitution gives the pardoning power to the President. Pardon means to remove the sentences and conviction.
Kinds of Pardon
- Remission: Reducing the period of punishment without changing its character.
- Commutation: Substitution of one form of Punishment to a lighter one.
- Respite: Reducing the sentence in place of original punishment due to the physical disability, pregnancy of women, or any special facts.
- Reprieve: Stay on the execution of sentence for a temporary period.
- The person seeking mercy before the president has no right to have an oral hearing.
- The President has the power to examine the fresh case and have a different view of the case.
- Pardoning Power to be executed by the President on the advice of the Union Cabinet.
- The President is not bound to specify reasons for his order.
- If the President’s decision is malafide, then it can be subject to Judicial Review, not otherwise.
Suhani Gupta | UPES, School of Law