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President to legislate by ordinance is not a parallel power of
legislation.
2. He can make an ordinance only when he is satisfied that the
circumstances exist that render it necessary for him to take immediate
action. In Cooper case11 , (1970), the Supreme Court held that the
President’s satisfaction can be questioned in a court on the ground of
malafide. This means that the decision of the President to issue an
ordinance can be questioned in a court on the ground that the
President has prorogued one House or both Houses of Parliament
deliberately with a view to promulgate an ordinance on a controversial
subject, so as to bypass the parliamentary decision and thereby
circumventing the authority of the Parliament. The 38th Constitutional
Amendment Act of 1975 made the President’s satisfaction final and
conclusive and beyond judicial review. But, this provision was deleted
by the 44th Constitutional Amendment Act of 1978. Thus, the
President’s satisfaction is justiciable on the ground of malafide.
3. His ordinance-making power is coextensive as regards all
matters except duration, with the law-making powers of the
Parliament. This has two implications:
(a) An ordinance can be issued only on those subjects on which the
Parliament can make laws.
away any of the fundamental rights12 .
4. Every ordinance issued by the President during the recess of
Parliament must be laid before both the Houses of Parliament when it
reassembles. If the ordinance is approved by both the Houses, it
becomes an act. If Parliament takes no action at all, the ordinance
ceases to operate on the expiry of six weeks from the reassembly of
Parliament. The ordinance may also cease to operate even earlier
than the prescribed six weeks, if both the Houses of Parliament pass
resolutions disapproving it. If the Houses of Parliament are summoned
to reassemble on different dates, the period of six weeks is calculated
from the later of those dates. This means that the maximum life of an
ordinance can be six months and six weeks, in case of non-approval
by the Parliament (six months being the maximum gap between the
two sessions of Parliament). If an ordinance is allowed to lapse
without being placed before Parliament, then the acts done and
completed under it, before it ceases to operate, remain fully valid and
effective.
The President can also withdraw an ordinance at any time.
However, his power of ordinance-making is not a discretionary power,
and he can promulgate or withdraw an ordinance only on the advice of
the council of ministers headed by the prime minister.
An ordinance like any other legislation, can be retrospective, that is,
it may come into force from a back date. It may modify or repeal any
act of Parliament or another ordinance. It can alter or amend a tax law
also. However, it cannot be issued to amend the Constitution.
The ordinance-making power of the President in India is rather
unusual and not found in most of the democratic Constitutions of the
world including that of USA, and UK. In justification of the ordinance-
making power of the President, Dr. B.R. Ambedkar said in the
Constituent Assembly that the mechanism of issuing an ordinance has
been devised in order to enable the Executive to deal with a situation
that may suddenly and immediately arise when the Parliament is not
in session13. It must be clarified here that the ordinance-making power
of the President has no necessary connection with the national
emergency envisaged in Article 352. The President can issue an
ordinance even when there is no war or external aggression or armed
rebellion.
The rules of Lok Sabha require that whenever a bill seeking to
replace an ordinance is introduced in the House, a statement
explaining the circumstances that had necessitated immediate
legislation by ordinance should also be placed before the House.
So far, no case has gone to the Supreme Court regarding
promulgation of ordinance by the President.
But, the judgement of the Supreme Court in the D.C. Wadhwa
case14 (1987) is highly relevant here. In that case, the court pointed
out that between 1967–1981 the Governor of Bihar promulgated 256
ordinances and all these were kept in force for periods ranging from
one to fourteen years by promulgation from time to time. The court
ruled that successive repromulgation of ordinances with the same text
without any attempt to get the bills passed by the assembly would
amount to violation of the Constitution and the ordinance so
repromulgated is liable to be struck down. It held that the exceptional
power of law-making through ordinance cannot be used as a
substitute for the legislative power of the state legislature.
PARDONING POWER OF THE PRESIDENT
Article 72 of the Constitution empowers the President to grant pardons
to persons who have been tried and convicted of any offence in all
cases where the:
1. Punishment or sentence is for an offence against a Union Law;
2. Punishment or sentence is by a court martial (military court); and
3. Sentence is a sentence of death.
The pardoning power of the President is independent of the
Judiciary; it is an executive power. But, the President while exercising
this power, does not sit as a court of appeal. The object of conferring
this power on the President is two-fold: (a) to keep the door open for
correcting any judicial errors in the operation of law; and, (b) to afford
relief from a sentence, which the President regards as unduly harsh.
The pardoning power of the President includes the following:
1. Pardon
It removes both the sentence and the conviction and completely
absolves the convict from all sentences, punishments and
disqualifications.
2. Commutation
It denotes the substitution of one form of punishment for a lighter form.
For example, a death sentence may be commuted to rigorous
imprisonment, which in turn may be commuted to a simple
imprisonment.
3. Remission
It implies reducing the period of sentence without changing its
character. For example, a sentence of rigorous imprisonment for two
years may be remitted to rigorous imprisonment for one year.
4. Respite
It denotes awarding a lesser sentence in place of one originally
awarded due to some special fact, such as the physical disability of a
convict or the pregnancy of a woman offender.
5. Reprieve
It implies a stay of the execution of a sentence (especially that of
have time to seek pardon or commutation from the President.
Under Article 161 of the Constitution, the governor of a state also
possesses the pardoning power. Hence, the governor can also grant
pardons, reprieves, respites and remissions of punishment or
suspend, remit and commute the sentence of any person convicted of
any offence against a state law. But, the pardoning power of the
governor differs from that of the President in following two respects:
1. The President can pardon sentences inflicted by court martial
(military courts) while the governor cannot.
2. The President can pardon death sentence while governor
cannot. Even if a state law prescribes death sentence, the power
to grant pardon lies with the President and not the governor.
However, the governor can suspend, remit or commute a death
sentence. In other words, both the governor and the President
have concurrent power in respect of suspension, remission and
commutation of death sentence.
The Supreme Court examined the pardoning power of the
President under different cases and laid down the following principles:
1. The petitioner for mercy has no right to an oral hearing by the
President.
2. The President can examine the evidence afresh and take a view
different from the view taken by the court.
3. The power is to be exercised by the President on the advice of
the union cabinet.
4. The President is not bound to give reasons for his order.
5. The President can afford relief not only from a sentence that he
regards as unduly harsh but also from an evident mistake.
6. There is no need for the Supreme Court to lay down specific
guidelines for the exercise of power by the President.
7. The exercise of power by the President is not subject to judicial
review except where the presidential decision is arbitrary,
irrational, mala fide or discriminatory.
8. Where the earlier petition for mercy has been rejected by the
CONSTITUTIONAL POSITION OF THE PRESIDENT
The Constitution of India has provided for a parliamentary form of
government. Consequently, the President has been made only a
nominal executive; the real executive being the council of ministers
headed by the prime minister. In other words, the President has to
exercise his powers and functions with the aid and advise of the
council of ministers headed by the prime minister.
Dr. B.R. Ambedkar summed up the true position of the President in
the following way15 :
“In the Indian Constitution, there is placed at the head of the Indian
Union a functionary who is called the President of the Union. The title
of the functionary reminds of the President of the United States. But
beyond the identity of names, there is nothing in common between the
form of government prevalent in America and the form of government
adopted under the Indian Constitution. The American form of
government is called the presidential system of government and what
the Indian Constitution adopted is the Parliamentary system. Under
the presidential system of America, the President is the Chief head of
the Executive and administration is vested in him. Under the Indian
Constitution, the President occupies the same position as the King
under the English Constitution. He is the head of the State but not of
the Executive. He represents the nation but does not rule the nation.
He is the symbol of the nation. His place in administration is that of a
ceremonial device or a seal by which the nation’s decisions are made
known. He is generally bound by the advice of his ministers. He can
do nothing contrary to their advice nor can he do anything without
their advice. The President of the United States can dismiss any
secretary at any time. The President of the Indian Union has no power
to do so, so long as his ministers command a majority in Parliament”.
In estimating the constitutional position of the President, particular
reference has to be made to the provisions of Articles 53, 74 and 75.
These are:
1. The executive power of the Union shall be vested in President
and shall be exercised by him either directly or through officers
subordinate to him in accordance with this Constitution (Article
53).
exercise of his functions, act in accordance with such advice
(Article 74).
3. The council of ministers shall be collectively responsible to the
Lok Sabha (Article 75). This provision is the foundation of the
parliamentary system of government.
The 42nd Constitutional Amendment Act of 1976 (enacted by the
Indira Gandhi Government) made the President bound by the advice
of the council of ministers headed by the prime minister16. The 44th
Constitutional Amendment Act of 1978 (enacted by the Janata Party
Government headed by Morarji Desai) authorised the President to
require the council of ministers to reconsider such advice either
generally or otherwise. However, he ‘shall’ act in accordance with the
advice tendered after such reconsideration. In other words, the
President may return a matter once for reconsideration of his
ministers, but the reconsidered advice shall be binding.
In October 1997, the cabinet recommended President K.R.
Narayanan to impose President’s Rule (under Article 356) in Uttar
Pradesh. The President returned the matter for the reconsideration of
the cabinet, which then decided not to move ahead in the matter.
Hence, the BJP-led government under Kalyan Singh was saved.
Again in September 1998, the President KR Narayanan returned a
recommendation of the cabinet that sought the imposition of the
President’s Rule in Bihar. After a couple of months, the cabinet re-
advised the same. It was only then that the President’s Rule was
imposed in Bihar, in February 1999.
Though the President has no constitutional discretion, he has some
situational discretion. In other words, the President can act on his
discretion (that is, without the advice of the ministers) under the
following situations:
(i) Appointment of Prime Minister when no party has a clear majority
in the Lok Sabha or when the Prime Minister in office dies
suddenly and there is no obvious successor.
(ii) Dismissal of the council of ministers when it cannot prove the
confidence of the Lok Sabha.
(iii) Dissolution of the Lok Sabha if the council of ministers has lost its
majority.
52. The President of India
53. Executive power of the Union
54. Election of President
55. Manner of election of President
56. Term of office of President
57. Eligibility for re-election
58. Qualifications for election as President
59. Conditions of President’s office
60. Oath or affirmation by the President
61. Procedure for impeachment of the President
62. Time of holding election to fill vacancy in the office
of President
65. Vice-President to act as President or to discharge
his functions
71. Matters relating to the election of President
72. Power of President to grant pardons etc., and to
suspend, remit or commute sentences in certain
cases
74. Council of ministers to aid and advise the
President
75. Other provisions as to ministers like appointment,
term, salaries, etc.
76. Attorney-General of India
77. Conduct of business of the Government of India
78. Duties of Prime Minister in respect to furnishing of
information to the President, etc.
85. Sessions of Parliament, prorogation and
dissolution
111. Assent to bills passed by the Parliament
112. Union Budget (annual financial statement)
NOTES AND REFERENCES
1. This provision was added by the 70th Constitutional
Amendment Act of 1992 with effect from June 1, 1995.
2. According to the 84th Constitutional Amendment Act of
2001, the expression ‘population’ means the population as
ascertained at the 1971 census, until the relevant figures for
the first census taken after 2026 have been published.
3. Constituent Assembly Debates, Volume-IV,p. 733–736.
4. The presidential and vice-presidential Elections Act of 1952,
as amended in 1997.
4a. Vide the Finance Act, 2018, with effect from 1st January,
2016. This Act amended the President’s Emoluments and
Pension Act, 1951.
5. The President’s Emoluments and Pension Amendment Act
of 2008.
6. No person except Dr. Rajendra Prasad has occupied the
office for two terms.
7. So far two Presidents, Dr. Zakir Hussain and Fakhruddin Ali
Ahmed, have died during their term of office.
8. For example, when President Dr. Zakir Hussain died in May,
1969, the then Vice-President, V.V. Giri was acting as the
President. Soon after V.V. Giri resigned to contest the
election of the President. Then the Chief Justice of India, M.
Hidayatullah worked as the officiating President from 20
July, 1969 to 24 August, 1969.
9. For details in this regard, see Chapter 16.
10. ‘Veto’ is a Latin word that connotes ‘forbid’.
11. Cooper v. Union of India, (1970).
12. The definition of ‘law’ contained in Article 13 expressly
includes ordinances. See, Chapter 7.
13. Constituent Assembly Debates, Volume VIII, p. 213.
14. D.C. Wadhwa v. State of Bihar, (1987).
15. Constituent Assembly Debates, Volume VII, p. 32–34.
18 Vice-President
T
he Vice-President occupies the second highest office in the
country. He is accorded a rank next to the President in the
official warrant of precedence. This office is modelled on
the lines of the American Vice-President.
ELECTION
The Vice-President, like the president, is elected not directly by
the people but by the method of indirect election. He is elected by
the members of an electoral college consisting of the members of
both Houses of Parliament.1 Thus, this electoral college is
different from the electoral college for the election of the President
in the following two respects:
1. It consists of both elected and nominated members of the
Parliament (in the case of president, only elected members).
2. It does not include the members of the state legislative
assemblies (in the case of President, the elected members
of the state legislative assemblies are included). Explaining
the reason for this difference, Dr. B.R. Ambedkar observed:2
“The President is the head of the State and his power extends
both to the administration by the Centre as well as to the states.
Consequently, it is necessary that in his election, not only
members of Parliament should play their part, but the members of
the state legislatures should have a voice. But, when we come to