Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Introduction

With the recent elections resulting in the victory of Droupadi Murmu, the question gears have started turning, yet again. While India has had a diverse range of people serving as presidents, adding to the cause of representation, does this post do anything else for them or the country?

India has declared itself as a republic. Thus, implying the futility of a monarch. Instead the preamble propounds the concept of “head of state”, i.e. The President, thus, is a substitute monarch but not equivalent to one. So, what exactly is the role of an Indian president? This article will further dissect and explore various aspects related to the Presidential Election.

Election of the President

The electoral process of the president in India is indirect, rather than direct. This implies that the process is carried out by means of an electoral college, consisting of the elected members of both Houses of Parliament(Lok Sabha and Rajya Sabha) and the State Legislative Assemblies, in accordance with the system of proportional representation by means of a single transferable vote by secret ballot. The election process of the president, being the constitutional head with duties such as protecting, defending, and preserving the constitution and rule of law in a constitutional democracy with constitutional supremacy, is comparably more extensive than that of the prime minister.

The actual calculation for votes cast by a particular state is calculated by dividing the state's population by 1000, which is divided further by the number of legislators from the State voting in the electoral college. Every elected member of the parliament enjoys the same number of votes, which may be obtained by dividing the total number of votes assigned to the members of legislative assemblies by the total number of elected representatives of the parliament. All these rules and the decorum of the election of the President are provided by Article 55 of the constitution.

Separation of Power

The separation of powers is imitable for the efficient administration of federal and democratic states. Under this rule, the state is divided into three different branches- legislative, executive, and judiciary each having different independent power and responsibility on them so that one branch may not interfere with the working of the other two branches. Basically, it is the rule which every state government should follow in order to enact, implement the law, and apply it to specific cases appropriately.

A democracy can thrive only when power isn't arbitrarily distributed. So, even though the president is the head of the state, a country representative, his powers are also subject to checks and balances. The theory of separation of powers finds its root in the philosophy of Aristotle, which builds upon the writings of Lord Montesquieu in the eighteenth century. Lord Montesquieu in his famous work “The Spirit of the Laws” gave the idea of separation of powers. Aristotle further divided his theory into 3 governmental functions - deliberative, magisterial, and judicial. This separation of power ensures that the president doesn't abuse his power

Powers of The President

The President of India enjoys constitutional powers and functions which may be classified into six principal types:

1. Executive Powers and Functions

  • Head of the Union: The President is the constitutional head of the union executive.Consequently, all executive powers are exercised in the name of the President. The executive power of the Union which can be exercised by the President is extended to the matters with respect to which Parliament has the power to make laws and to conclude treaties and agreements.
  • Appointments: As head of the executive, the President oversees appointments of Governors of States, the Judges of the Supreme Court and the High Courts, the Auditor General of India, and many other high-ranking officials, such as the members of the Finance Commission, Election commission, Union Public commission, etc.
  • Appointment of the Prime Minister and other Ministers: The President also helps in appointing the Prime Minister and with his advice the other Ministers of the Union Council of Ministers. However, this power is discretionary and usually exercised as the last resort. Following the due procedure, the President is ordinarily, duty-bound to summon the leader of the political party which secures an absolute majority in the Lok Sabha to become the Prime Minister and form the Ministry. However, under exceptional circumstances, when no single political party wins a clear absolute majority and, as a result, no Council of Ministers can be formed without a coalition of parties the President can exercise his discretion judiciously in appointing the Prime Minister
  • Can ask to prove Majority in Lok Sabha: The President must, at all times be satisfied that the Council of Ministers enjoys the confidence of the majority of the Lok Sabha. In case of any doubt, he can ask the Council of Ministers to prove its majority in the Lok Sabha. The President can also dissolve the Union Council of Ministers in accordance with Article 75(2) of the constitution if his findings don't establish confidence in ministers constituting Lok Sabha.
  • Supreme Commander: As head of State, the President is the Supreme Commander of all the Armed Forces of India (namely the Airforce, Army, and Navy) and is entitled to declare war or conclude a treaty.

2. Legislative Powers and Functions

  • President is a part of Parliament: The Union Legislature or Parliament consists of the President and two Houses of Parliament. The President is, therefore, an integral part of the Union Legislature. The President can prorogue the Houses or either House of Parliament
  • Summons and Addresses Parliament: The President, at his will, may address either or both Houses of Parliament. In such an address, at the first session after a general election to the Lok Sabha and at beginning of a joint session of Parliament each year, he may place the reasons for summoning it.
  • Nomination: The President is obliged to nominate a number of members in both Houses. The chief purpose of the nomination is to uphold the value of adequate representation in Parliament of all sections of the population which may not always be achieved through elections.
  • Power in respect of Bills: A bill passed by both the Houses of Parliament requires his assent in order to become an Act. He may give his assent to a bill or can withhold assent when a bill. If Parliament, acting on President’s refusal to assent to a bill, passes it again ( even without any amendment), for the second time and presents it to the President for his approval, the President will be obliged to assent there from under Article 111. Thus, the President can only express disapproval once.

3. Power to Promulgate Ordinances

The President may promulgate such Ordinances, when neither houseis in session, as the circumstances appear to him to require (Article 123). Such an ordinance will be equivalent to an Act passed by the parliament. This Ordinance Promulgation has always been perceived as controversial because it gives the President legislative power, which usually rests with the houses. Even though most presidential powers of the Indian president have been adopted from Britain and USA executive, this power to promulgate ordinances is entirely unique to the Indian President.

4. Financial Powers and Functions

No money bill (document pertaining to government spending, taxation, etc) can be introduced in Parliament without the recommendations of the President and no changes can go through without the president’s approval. Even the Annual Financial Statement (popularly called- The Budget) is placed by the President before both the Houses of Parliament.

5. Emergency Powers of the President

The constitution of India empowers the President to proclaim three kinds of Emergencies:

  • National Emergency (Art. 352)
  • Emergency for the failure of Constitutional Machinery in a State (Art. 356)
  • Financial Emergency (Art. 360)

1. National Emergency: The President of India may issue a declaration of National Emergency when the hr is of the opinion that the security of India or any part thereof is threatened by war, armed rebellion, or external aggression. Such a Proclamation may remain in force for an indefinite period. A citizen’s fundamental rights, namely the right to freedom of speech and expression, freedom to form an association, freedom to practice and profession, etc., embodied in Articles 19 and 21 shall remain suspended.

2. Failure of State Constitutional Machinery: In the case of failure of Constitutional machinery in a State, the President of India is authorized to make a Proclamation to that effect. During such an emergency, the President may assume to himself the executive powers of the State and thus, apply Presidential Rule.

3. Financial Emergency: The President may issue a Declaration of Financial if he is satisfied that the financial stability of India has been threatened. This type of emergency may continue to remain in force for an indefinite period.

6. Pardoning powers

The President of India has the power to grant pardons, reprieves, or remissions of punishment to any person who has been convicted by a Court of Law. The decision taken by the president about the mentioned convict will be binding on all Indian courts, and thus cannot be challenged.

7. Diplomatic powers

The diplomatic powers of the president are merely bureaucratic. This implies that while any international treaties and agreements are negotiated and concluded on behalf of the President, he doesn't partake in those negotiations. The President represents India in international forums and affairs where such a function is ceremonial. The President is recognized as the first citizen of the country.

8. Military powers

The President is the Supreme Commander of the Indian Armed Forces. The President can declare war or conclude peace, on the advice of the Union Council of Ministers headed by the Prime Minister.

President: a Titular Head

The common public carries their suspicions about the president being a mere title, with no real power. Some of the constitutionalists demanded the President as a mere figurehead, titular head, rubber stamp, or golden zero. There are many causes to call upon the President. I've mentioned some reasons that’d give a sufficient idea about this notion. The first cause, why we’d consider the president to be mere titular may be that the President is the head of the State, not of the prevailing Government. Secondly, India does not have a President- dominated Government. Thirdly, British tradition still prevails in our constitution. Last is that the President is obligated to work on the advice of the Ministry.

However, while all of this may be true, constitutionally, the president of India is more powerful than its citizens and council members. This is because of the above-mentioned power and also because the president acts on his obligation to uphold the constitution and our age-old democratic values. Sir B.N. Rau, a member of the Drafting Committee, in his book, mentioned that:

“Even if in any particular instance the President acts otherwise than on the ministerial advice the validity of the act cannot be questioned in any Court on any ground.”

Therefore, it is clear that the President is independent in the dispensation of his duties. We thus, cannot say that President is a mere figurehead.

Conclusion

The Indian Constitution has given many provisions, which expressly state that the President of India is not merely a figurehead. The President, like the King of Britain, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role. However, with most of these powers being “last resorts” or only coming to use in “rarest of rare” cases,

the status of the position of the Indian President is somewhere between the British Crown and that of the American President.

President is not only the biggest, most revered dignitary of the nation but also the embodiment of the unity of our country. The principal role of the President is to prevent a parliamentary government from becoming parliamentary anarchy and it is the Presidential authority that keeps the country and the people bonded together.


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