Chapter 3 CENTRAL EXECUTIVE



President of India-Election:

(i) India, being a Republic has provided for an elected President as the Head of State, and has vested in him the Union Executive power.

(ii) Qualification: Any citizen of India, who has completed 35 years of age, not holding any office of profit and who has the qualifications to be elected to the Lok Sabha is eligible.

(iii) Electoral College: The President is elected by an Electoral College consisting of—

(a) the elected members of both Houses of Parliament;

(b) the elected members of the Legislative Assemblies of the States. The llth Amendment provided that an election could be held even if there are vacancies among the members of the Electoral College. The Supreme Court held in re Presidential election that election could be held when the Gujarat Legislative Assembly was dissolved.

(iv) Manner of Election: Election is held according to the system of proportional representation by means of a single transferable vote: voting is by secret ballot. Both parity and uniformity are secured. This means the votes cast by all the elected MLAs of all Legislative Assemblies shall be equal to the total number of votes cast by the elected MPs. Hence, the votes that can be cast by each M.P.= Total No. of votes of all M.L.A.'s together / Total No. of elected M.P's Also, votes cast by each M.L.A's of a State Total population of the State/ Total number of M.L. A.s of that State

(v) Election Disputes: Art. 71 : All doubts and disputes are subject to the jurisdiction of the Supreme Court. Acts done by the President during the pendency of the case are valid.

(vi) Tenure: The President holds the officer for a term of 5

years. There is no bar on re-election.

(vii) Impeachment: Art. 71 : Provisions have been made to impeach the President. The President may be removed for violation of the Constitution. The procedure is as follows:

(1) At least one fourth of the members of one House of Parliament must after giving 14 days notice, move a resolution to impeach the President.

(2) This must be passed by at least 2/3 majority of the total membership of that House.

(3) The other House of Parliament must investigate such a charge. The President has a right to be present.

(4) This House must pass a resolution by at least 2/3 majority of the total membership of the House. The President stands removed when that resolution is passed.

3.2 : Powers and functions of the President:

The framers of the Constitution intended that the President of India, should be a nominal (titular) head like the Crown in England. Like the Crown he acts on the advice of the Council of Ministers (Cabinet). He represents the Nation but does not rule the Nation. His place in administration is that of a ceremonial device or seal by which the Nation's decisions are made known. (Constituent Assembly Debates). The American President is a real Executive, elected directly by the people for 4 years and is advised by his Secretaries, who are not members of the Legislature and whom he can appoint or dismiss at his direction. He has the 'Pocket Veto' powers. Our President and his office are modelled on the Eirish

Constitution.


President to act on the advice of the Cabinet:

(a) Whether our President is a mere rubber stamp or is having some powers under the Constitution, remains a question often debated. However ,he may exercise his considerable influence in shaping the policies. His personal dynamic participation is not limited. Dr. Rajendra Prasad wrote to the Prime Minister Mr. Nehru (1951), stating that in giving assent to Bills, he would act independently. Further he did not readily sign the Hindu Code Bill. The Attorney General's views were sought. He stated that under Art. 74(1) the President was to act according to the advice of the Cabinet. The President gave his assent. The Supreme Court has held that Art 74(1) is mandatory. (U.N. Rao V. Mrs.Indira Gandhi).


(b) 42nd and 44th amendments: The 42nd Amendment provided that the president shall in the exercise of his functions act in accordance with the advice of the Council of Ministers. The 44th Amendment provides that the President may require the Council of Ministers to re consider such advice, either generally or otherwise, and he shall act in accordance with theadvice tendered after such reconsideration. These two amendments are based on Samsher V St of Punjab 1974.S.C .,


Powers :

(a) Head of State : The Union Executive Power is vested in him (Art.53), and all Executive actions are exercised by him,in accordance with the Constitution. He represents theNation abroad. He appoints Ambassadors & diplomatic officials. All treaties are made in his name.


(b) Supreme Commander: Art. 53(2). He is declared as the Supreme Commander of the Defence Forces. The exercise of this power is regulated by law.


(c) Appointing Power : He appoints the Judges of the Supreme Court and of the High Courts, Attorney General for India, Comptroller and Auditor General, Governors, Chairmen and Members of U.P.S.C., Finance Commission etc.


(d) Pardoning Power : Art 72. The President has powers to grant pardon, reprieves,(i.e., suspend temporarily), respites (to postpone), commute (reduce from rigorous to simple imprisonment), remit (to reduce), the sentence of any convicted person. Cases covered:

(1) Those coming under Court Martial

(2) Allthose coming within the Union Executive Power

(3) Cases of deathpenalty. (Governor has no power to grant pardon for death penalty).

In Billa-Ranga Mercy petition case, the Supreme Court held that the Court would not go behind the refusal of the President to grant pardon under Art. 72. In Mrs. Indira Gandhi Murder Case, the Supreme Court has held that pardoning power was independent and could be exercised by the President, in the exercise of his highest executive authority. This is not controlled by the Supreme Court and also not subject to review.


(e) Powers in relation to Cabinet: He appoints the Prime Minister and the other Ministers. However under the concept of Cabinet responsibility ,the Cabinet continues in power as long as it commands the confidence of the Lok Sabha and hence, the President has no powers to dismiss or remove the Prime Minister or any other Minister.

(f) Legislative Powers : Parliament means the President & and Two Houses (the Rajya Sabha and the Lok Sabha).


(1) He has the powers of summoning, proroguing and dissolving the Parliament. The Rajya Sabha is not subject to dissolution.

(2) He acts on the advice of Prime Minister.

(3) He has the powers to address the Houses of Parliament. At the commencement of the first session of a new Parliament he addresses a Joint Session, and, at the commencement of the first session each year.

(4) He gives assent to the Bills. (He may send to the Cabinet for reconsideration but shall give his assent when presented after reconsideration.)

(g) Ordinance-making Power : Art. 123 empower the President to issue an Ordinance. This is a Legislative power exclusive to the Parliament, but he is allowed to exercise subject to certain conditions. The Houses of Parliament should not be in Session: he must be satisfied that circumstances exist which render it necessary to take immediate action. He must issue the Ordinance only in respect of those matters or items in which Parliament has the power to make laws. (He may withdraw the ordinance if he so desires). Duration: The Ordinance should be laid before both the Houses of Parliament. It must be passed by both the Houses within 6 weeks from the date of such reassembling of the Parliament. It will become an Act on receiving the assent of the President. If so not passed, by the Houses, the ordinance

lapses after 6 weeks of Parliament's reassembly. Satisfaction of President: 38th Amendment had provided that the satisfaction of the President was final and shall not be questioned in any Court .The 44th Amendment has omitted this amendment. National Emergency (Art.352), State Emergency (Art. 356) or Financial Emergency (Art.360). or details of Emergency power ,see later chapter in this ebook.




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