POWERS OF THE PRESIDENT:

The President is the head of the state and also the head of the Central Executive.
The central executive besides the President comprises of the Council of Ministers
headed by the Prime Minister. The Constitution formally vests many functions in
the President but he has no function to discharge in his discretion or his individual
judgment. The President cannot exercise personal discretion in discharge of the
functions and the powers but is expected to do so on the advice of the Prime
Minister and the Council of Ministers. Therefore the Prime Minister and the
Council of Ministers is considered to be the real and effective executive.

The Central Executive exercises very broad and varied functions. It does not only
exercise executive functions but also the power to carry out legislative as well as
judicial functions.

Executive Functions

The exercise of the executive power of the Union is the function of the President.

A primary function of the executive is to administer and execute the laws enacted
by the Parliament and maintain law and order. However executive function cannot
be limited to this and a modern state is not expected to confine itself to a mere
collection of taxes, maintaining law and order and defending the country from
external aggression. The executive operates over a large area and discharges varied
and complex functions.

The Central Executive is entitled to exercise executive functions with respect to all
those subjects which fall within the legislative sphere of Parliament besides
exercising executive functions which are exercisable by the Government of India
under any treaty or agreement.

A few provisions in the constitution confer on the president some express

executive powers such as.

Power to make important appointments like Prime Minister and other Central
Ministers, Governor. Judges of the Supreme Court and the High Court , Chairman
and members of the Union Public Service Commission , the Attorney General , the
Chief Election Commissioner and other election commissioners , and the
Comptroller and Auditor General of India .
He also has the power to appoint various Commissions like the Finance
Commission , National Commission for the Schedule caste and the Schedule
Tribes .

Power to enter into contracts on behalf of the Indian Union.

Power to issue directions to state in certain circumstances.

Besides the above, the executive power of the Union is also vested in the Union in
accordance with Article 53. This executive power may be exercised either directly
or through officers subordinate to him in accordance with the Constitution.

However a dispute exists with regards to this power due to the absence of a
definition of the term ‘executive power’ in the Constitution. For example in
Amritlal v. F.N. Rana by Shah J where the Honourable Judge remarked that:

“It cannot however be assumed that the legislative functions are exclusively
performed by the legislature, executive functions by the executive and judicial
functions by the judiciary alone. The constitution has not made absolute or rigid
divisions of function between the three agencies of the State".

The executive cannot act against a statute or exceed its statutory powers. If there
exists a law on that particular matter the executive is bound to act in accordance
with it. In M.P v. Bharat Singh the Hon’ble Supreme court held that the executive
cannot infringe the rights of private individuals without any legal authority.
However in some cases the government may do any act provided it is not act
assigned by the Constitution to any authority or body or it is not contrary to the
provisions of any law or it does not encroach upon the individuals right without the
existence of a prior legislation supporting the same. An example of this would be
the acquiring of a foreign territory ceded to India.

Article 73 defines the ambit of the executive power of the centre which states that

“Subject to the provisions of the constitution" the executive power of the Centre
extends to.

The matters with respect to which the parliament has the power to make laws,

The exercise of such rights, authority and jurisdiction as are exercisable by the
government of India by virtue of any agreement or treaty.
The above article implies that the executive power is co-extensive with the
legislative power of the Parliament. However where the parliament and the
legislature make laws then the Centre’s executive power extend to this area only
when either the constitution or a law made by the parliament expressly provides
for.

Judicial Powers

The central executive is empowered to appoint judges of the Supreme Court and
the High Court under Article 124(2) and 217(1) respectively. The issue of the
disqualification of the member of the parliament is also decided formally by the
President.

Another important judicial power vested with the President is the power to pardon
under Article 72. Article 72 lays down the cases when the President has the power
to suspend, remit or commute sentences:

In all cases where the punishment or sentence is by a Court Martial

In all cases where the punishment or sentence is for an offence against any law
relating to a matter to which the executive power of the Union extends

In all cases where the sentence is a sentence of death.

However Pardon should not be regarded as a matter of right. It is an act of grace. A

pardon not only removes the punishment but also places the offender in the same
position as if he had never committed the offence. The effect of the pardon is to
clear the person from all infamy and from all consequences of the offences for
which it is granted and from all statutory or other disqualifications upon
conviction.

The scope of the power of the President under Article 72 to commute a death
sentence into a lesser sentence has been left open by the court after observing that
whether a case is appropriate to be sent for the consideration of Presidential Pardon
depends on the facts and the circumstance of each particular case.

The concept of presidential pardon being subjected to judicial review was also
discussed in the case of G Krishna Goud v. State of Andhra Pradesh . In this case
two persons were convicted for committing murder in implementing their ideology
of social justice through terrorist technology and were given death sentence. They
filed for Presidential Pardon which was refused. They then moved to the court
under a writ petition arguing that their crime was political in nature which involved
different considerations. The court dismissing the petition held that the court can
only interfere when such power has not been exercised in good faith. Since, the
court had not been shown any demonstrable reason or glaring ground to consider
the refusal of commutation as motivated by malignity or degraded by abuse of
power the court cannot interfere with such power.

Therefore this power of the president can be subjected to judicial review if the
court discovers mala fide intention or political vengeance.

Legislative Powers

Legislative power of the central executive can be divided into the following heads:
Participation of the executive in the legislative process: The President along with
the council of ministers is both members of the parliament and participates
intimately in the legislative making process. The President has the power to
convene and prorogue to dissolve Lok Sabha. The President has the power to pass
a bill and his assent is required for the transforming a bill passed by the two houses
into an act.

The central executive’s consent is also required in passing of certain types of State
legislation which fall under the ambit of Article 288(2).

Moreover in certain aspects President’s recommendation is required before the Bill

is introduced before the two houses of Parliament.

Bill relating to the alteration or states of formation of new states (article 3)

A money bill cannot be introduced without the recommendation of the President

(Article 117(1))

Bill involving expenditure from the Consolidated fund of India

Any bill affecting any tax in which the states are interested.

Ordinance making power

The more controversial and debatable legislative power of the President has always
been the Ordinance Making Power. Usually the power to make the laws rests with
the Parliament. However Article 123 confers special power on the President
empowering him to promulgate ordinances when the Parliament is not in session
and the circumstances are such which require immediate action. An ordinance
cannot be promulgated when both the houses of parliament are in session However
it may be passed when only one house is in session the reason being that a law
cannot be passed by only one house and thus it cannot meet a situation calling for
immediate legislation. This power granted to the President in the Indian
Constitution is unique and no such power has been conferred upon the executive in
Britain or the USA.

In justification of the inception of the Ordinance Making power in the Constitution

Dr. Ambedkar said that there might be a situation of emergency when the Houses
of the parliament are not in session. It is important that this situation should be
dealt with and it seems to me that the only solution is to confer upon the President
the power to promulgate the law which will enable the executive to deal with that
particular situation because it cannot resort to the ordinary process of law because
the legislature is not in session.

Article 123 empowers the President to promulgate ordinance as the circumstances

which appear to require when.

When both houses of the parliament are not in session

He is satisfied that the circumstances exist which render it necessary for him to
take immediate action.

Military Powers:

As the Supreme Commander of the Indian Armed Forces the President plays the
following role:

 All officers’ appointments are made by him or her, including that of the
chiefs.
 The country declares war in the name of the President.
 The country also concludes peace in the name of the President

Diplomatic roles:

The President of India plays a vital role in maintaining diplomatic and cordial
relationships with other countries across the globe.
  The country’s ambassadors and high commissioners are his representatives
in foreign land.
 He also receives the credentials of diplomatic representatives of foreign
countries.
 The President also negotiates treaties and agreements with other nations
prior to ratification by Parliament.

Emergency Powers:

The Constitution of India envisages three kinds of emergency powers on the

President.

 During any national emergency which puts the country’s security at peril,
either from external aggression or armed rebellion within, the President has
the power to declare a state of emergency. The President’s Rule is then
established in the state. However, such emergency has to be recommended
by the Prime Minister and the cabinet.
 The President can declare a State emergency based on political emergency
due to Constitutional or law and order breakdown. The Governor’s Rule is
then established in the state.
 The President has the power to intervene when the financial stability of the
country or any state is seriously affected. The President has the power to
direct a state government to observe prudence in public expenditure.

POSITION OF THE PRESIDENT:

Thus the President of India has been given wide and far-reaching powers which he
enjoys both during normal and emergency times. But after the passing of the
Constitution Forty-Second (1976) and Forty-Fourth (1978) Amendment Acts, the
President of our Republic has become a Constitutional figurehead and nothing
beyond that.

Today, President’s position is one of great authority and dignity, but at the same
time strictly constitutional. Thus the President is bound in every case to act on the
advice of his Prime Minister and other Ministers who are responsible to the Lok
Sabha and responsive to the public opinion.
In short, the powers really reside in the Ministry and the Parliament and not in the
President as such. He has no discretion in our Parliamentary system of
government.

The Supreme Court through various decisions has upheld the position that the
President is a constitutional head and as such he is as much bound by the advice of
his Ministers during emergency as during normal times.

For example, the President can declare a proclamation of the National Emergency
(Article 352) only after receiving a written communication of the decision of the
Union Cabinet. If the President abuses his powers, he can be removed from office
by a process of impeachment.

It does not, however, mean that the President of India is a magnificent cipher or a
mere rubber stamp. Unlike the British Monarchy which is hereditary, the President
of our Republic is an elected Head of the State. In our coalition politics, there are
some grey areas where the President may still have to use his own judgment and
wisdom. These are:

 Appointment of the Prime Minister,

 Dismissal of the Union Ministry,
 Dissolution of the Lok Sabha, and,
 Seeking information on all matters of administration and legislation from the
Prime Minister etc.

In some such situations, the role of our President may become most crucial and
decisive. However, the President has to be free from all political affiliations. He is
expected to act with complete constitutional rectitude and impartiality. The nation
is expected to be benefitted by his wise leadership and constructive role.

In short, the President of India is the symbol of national unity, magnet of loyalty
and apparatus of ceremony.
BIBLIOGRAPHY:

1. V.N. SHUKLA, CONSTITUTION OF INDIA, ESTERN BOOK COM. LOK.

2. M.P. JAIN, COSTITUTION OF INDIA, WADHWA NAGPUR.

3. D.D. BASU, SHORTER CONTITUTION OF INDIA, WADHWA NAGPUR.

4. B. SHIV RAO, THE FRAMING OF INDIAN CONSTITUTION-

SELECT DOCUMENT (1967).

5. SARKARIA COMMSSION(1987).

6. OXFORD DICTIONERY, OXFORD UNIVERSITY PRESS.