The President of India

1. Election

The President is elected indirectly by an electoral college (Article 54) consisting of:

• the elected members of both Houses of Parliament; and
• the elected members of the Legislative Assemblies of the States, including, since the Seventieth Amendment (1992), the National Capital Territory of Delhi and Puducherry.

Nominated members of either House and members of the Legislative Councils have no vote. Under Article 55 the election is held by proportional representation by means of the single transferable vote, by secret ballot, and the value of votes is so weighted that there is uniformity between the States inter se and parity between the States taken together and Parliament. Disputes about the election are decided by the Supreme Court alone (Article 71).

2. Qualifications, term and vacancy

• Article 58 — a citizen of India, at least 35 years of age, qualified for election to the Lok Sabha, and not holding an office of profit (the offices of President, Vice-President, Governor and Minister are excluded from that bar).
• Article 56 — a five-year term, but the President continues until a successor enters office. Article 57 allows re-election.
• Article 62 — an election to fill a vacancy caused by death, resignation or removal must be held within six months; meanwhile the Vice-President acts (Article 65).

3. Impeachment (Article 61)

The only ground is “violation of the Constitution”. The steps:

• The charge may be preferred in either House, by a resolution moved after at least 14 days' written notice signed by not less than one-fourth of the total members of that House.
• The resolution must be passed by not less than two-thirds of the total membership of the House.
• The other House then investigates the charge; the President may appear or be represented.
• If the investigating House also passes a resolution by two-thirds of its total membership declaring the charge sustained, the President stands removed from that date.

A favourite short-answer point: nominated members of Parliament take part in impeachment though not in the election, while elected members of the State Assemblies take part in the election but not in impeachment. No President has ever been impeached.

4. Powers of the President

• Executive — all executive action is taken in the President's name (Article 77); appointment of the Prime Minister and Ministers, the Attorney-General, the CAG, Governors, judges of the Supreme Court and High Courts, and the Election Commissioners.
• Military — supreme command of the Defence Forces (Article 53(2)), regulated by law.
• Legislative — summoning, proroguing and dissolving (Article 85); addressing the Houses (Articles 86–87); assent to Bills (Article 111); joint sitting (Article 108); recommending money and financial Bills (Article 117); the ordinance power (Article 123).
• Judicial — pardon (Article 72); seeking the Supreme Court's advisory opinion (Article 143).
• Emergency — Articles 352, 356 and 360.

On assent under Article 111 the President may assent, withhold assent, or (except for a money Bill) return the Bill once for reconsideration. If it is passed again, with or without amendment, assent cannot be withheld. Because no time limit is fixed, the President can in practice sit on a Bill — the so-called pocket veto, used by President Zail Singh on the Indian Post Office (Amendment) Bill, 1986.

5. Constitutional position

The Constituent Assembly chose the British parliamentary model. In Rai Sahib Ram Jawaya Kapur v. State of Punjab, 1955 INSC 27, AIR 1955 SC 549, the Court said that the President is a formal or constitutional head, and that real executive power lies with the Council of Ministers responsible to the legislature.

A seven-judge Bench confirmed this in Shamsher Singh v. State of Punjab, 1974 INSC 154, (1974) 2 SCC 831: the President and the Governor exercise their formal constitutional powers only on the advice of their Ministers, save in a few well-known exceptional situations. Where the Constitution speaks of the President's “satisfaction”, it means the satisfaction of the Council of Ministers, not the personal satisfaction of the President.

The text of Article 74(1) was then tightened twice:

• Forty-second Amendment (1976) — added that the President “shall act in accordance with such advice”, making the advice binding.
• Forty-fourth Amendment (1978) — added a proviso allowing the President to require the Council to reconsider the advice once; the President must act on the advice tendered after reconsideration.

Article 74(2) bars any court from inquiring whether, and what, advice was tendered. The areas of genuine personal judgment are narrow: choosing a Prime Minister when no party or coalition has a clear majority, and the response to a Prime Minister who has lost the confidence of the House. Even then, as S.R. Bommai v. Union of India, 1994 INSC 111, (1994) 3 SCC 1, insists, the floor of the House is the proper test of majority.

6. The ordinance power (Article 123)

The President may promulgate an ordinance when both Houses are not in session and the President is satisfied that circumstances exist which render immediate action necessary. An ordinance has the same force as an Act of Parliament, is subject to the same limits (it cannot do what Parliament could not), must be laid before both Houses, and ceases to operate six weeks after Parliament reassembles unless disapproved earlier. The maximum life is therefore about six months and six weeks.

• In Rustom Cavasjee Cooper v. Union of India, 1970 INSC 18, (1970) 1 SCC 248 (the Bank Nationalisation case), the Court indicated that the President's satisfaction was open to challenge. The Thirty-eighth Amendment (1975) made it final; the Forty-fourth Amendment removed that clause.
• A.K. Roy v. Union of India, 1981 INSC 210, (1982) 1 SCC 271, held that the ordinance power is legislative, and an ordinance is “law” for the purposes of Article 13.
• D.C. Wadhwa v. State of Bihar, 1986 INSC 280, (1987) 1 SCC 378, condemned Bihar's practice of re-promulgating ordinances for years without placing them before the legislature as a fraud on the Constitution.
• A seven-judge Bench in Krishna Kumar Singh v. State of Bihar, 2017 INSC 1, (2017) 3 SCC 1, held that re-promulgation is a fraud on the Constitution, that laying the ordinance before the legislature is mandatory, and that the satisfaction of the President or Governor is not immune from judicial review — it can be examined on grounds such as absence of material or oblique motive.

7. The pardoning power (Article 72)

The President may grant pardon, reprieve, respite, remission or commutation, or suspend, remit or commute a sentence, in three classes of case: sentences by court martial; offences against a law on a Union matter; and all sentences of death. The Governor's power under Article 161 is narrower: no court-martial cases, and only offences against State-executive laws. The statutory powers of remission and commutation now sit in sections 473 to 475 of the BNSS, which replaced sections 432 to 433A of the old Criminal Procedure Code.

• Maru Ram v. Union of India, 1980 INSC 212, (1981) 1 SCC 107 — the power is exercised on the advice of the government, not personally; it is untouched by the statutory minimum of fourteen years for certain life convicts; and it must not be exercised arbitrarily or for political or communal reasons.
• Kehar Singh v. Union of India, 1988 INSC 368, (1989) 1 SCC 204 — arising from the Indira Gandhi assassination. The President may examine the evidence afresh and reach a different view from the courts; the convict has no right to an oral hearing; and the Court will not lay down guidelines for the exercise of the power, though the decision is reviewable within the limits stated in Maru Ram.
• Epuru Sudhakar v. Govt. of A.P., 2006 INSC 695, (2006) 8 SCC 161 — a remission granted by the Governor to a party worker was quashed. The order is reviewable where it is passed without application of mind, is mala fide, rests on extraneous or wholly irrelevant considerations, ignores relevant material, or is arbitrary.

How this is examined

“Discuss the constitutional position of the President” is the standard essay, set in recent KSLU papers. Structure it as: Article 53 vests the power; Article 74 and the two amendments make the advice binding; Ram Jawaya Kapur and Shamsher Singh confirm the constitutional head; then the small zone of personal judgment. Short notes are set on the ordinance power, the pardoning power and impeachment.

For the ordinance power, end with Krishna Kumar Singh; for pardon, with Epuru Sudhakar. Both make the same point that examiners reward: the power is wide, but the courts can still ask whether it was used honestly and for its purpose.