Union Government of India: President and Executive Powers

Introduction

The Union Government of India exercises authority at the national level through the executive, legislature and judiciary. The Constitution distributes powers among these institutions to prevent excessive concentration of power and support constitutional government.

The Union Executive includes the President, the Vice-President, the Prime Minister and the Council of Ministers. The President is the constitutional head of the Union, while the Prime Minister and the Council of Ministers exercise the central role in the day-to-day functioning of the government under the parliamentary system.

Meaning and Structure of the Union Government

The Union Government is the system through which India is governed at the national level under the Constitution.

Its three principal organs are:

• The Executive: Implements laws and administers government policies.
• The Legislature: Makes laws and holds the government accountable. At the Union level, Parliament consists of the President, the Rajya Sabha and the Lok Sabha.
• The Judiciary: Interprets the Constitution and laws and resolves legal disputes.

The separation of powers means that these institutions have different constitutional roles. However, the Constitution does not establish a completely rigid separation. Some functions overlap, and each institution operates within the limits laid down by the Constitution.

The Union Executive

Articles 52 to 78 of the Constitution deal with important aspects of the Union Executive.

The Union Executive includes:

• The President of India.
• The Vice-President of India.
• The Prime Minister.
• The Council of Ministers.
• The Attorney-General of India, who is the chief legal adviser to the Government of India.

The President is the formal constitutional head of the Union. Under the parliamentary system, the President ordinarily exercises executive powers on the aid and advice of the Council of Ministers headed by the Prime Minister, subject to the Constitution.

The President of India

Article 52: The President of India

Article 52 provides that there shall be a President of India.

The President is the constitutional head of the Indian Union and represents the Republic in its formal constitutional functions. The office is an essential part of India's parliamentary system of government.

The President's constitutional role includes appointing the Prime Minister, appointing other ministers on the Prime Minister's advice, summoning Parliament, giving assent to Bills and exercising other powers provided by the Constitution.

The President does not ordinarily govern independently of the elected government. Article 74 provides for a Council of Ministers headed by the Prime Minister to aid and advise the President.

Article 53: Executive Power of the Union

Article 53 provides that the executive power of the Union is vested in the President and is exercised by the President either directly or through officers subordinate to the President, in accordance with the Constitution.

This executive power covers the administration and implementation of Union laws and policies, subject to constitutional limits.

Supreme Command of the Defence Forces

Article 53(2) vests the supreme command of the Defence Forces of the Union in the President. The exercise of this power is regulated by law.

This does not mean that the President personally directs all military operations independently. The power operates within the constitutional system and the laws made by Parliament.

Limits on Executive Power

Article 53 also clarifies that the provision does not transfer to the President functions that existing law confers on a State Government or another authority. It also does not prevent Parliament from assigning functions by law to authorities other than the President.

The President's executive power must therefore be exercised in accordance with the Constitution and applicable laws.

Article 74: Aid and Advice of the Council of Ministers

Article 74 provides for a Council of Ministers headed by the Prime Minister to aid and advise the President.

The President must act in accordance with this advice. The President may ask the Council of Ministers to reconsider its advice once, but must act in accordance with the advice given after reconsideration.

This provision establishes the central principle of India's parliamentary system: the elected government exercises the effective political authority, while the President performs the constitutional functions of the head of State.

Election of the President

Article 54: Electoral College

Article 54 provides for the indirect election of the President by an electoral college consisting of:

• The elected members of both Houses of Parliament.
• The elected members of the Legislative Assemblies of the States.
• The elected members of the Legislative Assemblies of the Union Territories of Delhi and Puducherry.

Nominated members of Parliament and nominated members of State Legislative Assemblies do not vote in the presidential election. Members of State Legislative Councils also do not form part of the electoral college.

The indirect election is consistent with the parliamentary system, in which the President serves as the constitutional head rather than as the direct political head of the government.

Article 55: Manner of Election

Article 55 establishes the method used to elect the President.

The election follows the system of proportional representation by means of the single transferable vote, and voting is conducted by secret ballot.

The value of votes is calculated to maintain, as far as practicable, a balance between the representation of the States and the Union.

Value of Votes of State Legislators

The value of each elected Member of the Legislative Assembly's vote is calculated using the population of the State and the number of elected members in its Assembly, according to the constitutional formula.

The formula is designed to provide a measure of representation based on population rather than giving every legislator an identical vote value.

Value of Votes of Members of Parliament

The value of each elected Member of Parliament's vote is calculated by dividing the total value of votes assigned to elected members of the State Legislative Assemblies by the total number of elected members of both Houses of Parliament, subject to the rounding rules in Article 55.

The election is conducted by secret ballot. The single transferable vote system allows electors to indicate preferences among candidates.

Term and Re-election of the President

Article 56: Term of Office

The President holds office for a term of five years from the date of entering office.

The President may leave office before the end of the term by:

• Resigning by writing addressed to the Vice-President.
• Being removed through impeachment for violation of the Constitution.

The President continues in office after the five-year term expires until the successor enters office. This ensures continuity in the constitutional headship of the Union.

The Vice-President must communicate the President's resignation to the Speaker of the Lok Sabha.

Article 57: Eligibility for Re-election

Article 57 provides that a person who holds or has held the office of President is eligible for re-election, subject to the other constitutional requirements.

The Constitution does not prescribe a maximum number of terms for the President. A person may therefore be elected more than once if the constitutional requirements are satisfied.

Qualifications and Conditions of Office

Article 58: Qualifications for Election

A person is eligible to be elected President if the person:

• Is a citizen of India.
• Has completed 35 years of age.
• Is qualified for election as a member of the Lok Sabha.
• Does not hold an office of profit under the Government of India, a State Government or an authority subject to their control, subject to the constitutional exceptions.

For this purpose, holding certain constitutional offices, such as the office of President, Vice-President, Governor or Minister, does not by itself disqualify a person as provided by Article 58.

Article 59: Conditions of the President's Office

Article 59 lays down conditions that apply to the President while holding office.

The President:

• Cannot be a member of either House of Parliament or of a State Legislature.
• Is deemed to have vacated any such legislative seat upon entering the office of President.
• Cannot hold any other office of profit.
• Is entitled to the use of the official residence without payment of rent.
• Is entitled to the emoluments, allowances and privileges determined by law.
• Must not have emoluments and allowances reduced during the term of office.

These rules protect the independence and dignity of the office.

Article 60: Oath or Affirmation

Before entering office, the President must take an oath or make an affirmation in the prescribed form.

The oath or affirmation is made in the presence of the Chief Justice of India or, in the Chief Justice's absence, the senior-most available judge of the Supreme Court.

The President undertakes to faithfully perform the duties of the office, preserve, protect and defend the Constitution and the law, and devote himself or herself to the service and well-being of the people of India.

Impeachment and Vacancy in the Office of the President

Article 61: Procedure for Impeachment

Impeachment is the constitutional procedure for removing the President from office for violation of the Constitution.

Article 61 provides the procedure for impeachment:

• A charge may be initiated by either House of Parliament.
• At least 14 days' written notice must be given before the resolution is moved.
• The notice must be signed by at least one-fourth of the total membership of the House initiating the charge.
• The resolution must be passed by a majority of at least two-thirds of the total membership of that House.
• The other House investigates the charge, or arranges for it to be investigated. The President has the right to appear and to be represented during the investigation.
• If the investigating House passes a resolution sustaining the charge by a majority of at least two-thirds of its total membership, the President is removed from office.

The Constitution does not specify a detailed list of acts that amount to a violation of the Constitution for this purpose.

The impeachment process is designed to ensure that the President cannot be removed through an ordinary political disagreement or a simple majority vote.

Article 62: Time for Holding an Election

Article 62 provides rules for holding an election to fill a vacancy in the office of the President.

• An election to fill a vacancy caused by the expiry of the President's term must be completed before the term expires.
• If a vacancy occurs because of death, resignation, removal or another reason, the election must be held as soon as possible and no later than six months after the vacancy occurs.
• A person elected to fill such a casual vacancy holds office for a full five-year term from the date of entering office.

Under Article 65, the Vice-President acts as President when a vacancy occurs because of death, resignation, removal or otherwise, until a new President enters office. The Vice-President also discharges the functions of the President when the President is unable to perform those functions.

Pardoning Power of the President

Article 72: Power to Grant Pardons and Reduce Sentences

Article 72 gives the President the power to grant pardons and to suspend, remit or commute sentences in specified cases.

This power applies to:

• All cases where the punishment or sentence is imposed by a court-martial (a military court).
• All cases involving offences against laws relating to matters within the Union's executive power.
• All cases in which a sentence of death has been imposed.

The power is an important part of the constitutional system because it allows the executive to consider circumstances that may justify relief from a sentence imposed by a court.

Types of Relief under Article 72

Pardon: A pardon removes the punishment and grants relief from the legal consequences of the sentence to the extent provided by law.

Reprieve: A reprieve temporarily delays the execution of a sentence, giving time for further consideration.

Respite: A respite grants a lesser or different form of punishment because of special circumstances, such as pregnancy or another relevant condition recognised by law.

Remission: Remission reduces the period of a sentence without changing its nature.

Commutation: Commutation replaces one form of punishment with a less severe form. For example, a death sentence may be commuted to life imprisonment.

Suspension: Suspension temporarily stops the operation or execution of a sentence for a specified period or pending a decision.

Limits on the Pardoning Power

The President's pardoning power is not unlimited. It must be exercised according to the Constitution and established legal principles.

The power is ordinarily exercised on the aid and advice of the Council of Ministers under Article 74. A decision may be examined by the courts through judicial review (the power of courts to examine whether government action is lawful).

Courts do not ordinarily replace the President's decision with their own view of the appropriate punishment. However, they may intervene where the decision is affected by grounds such as bad faith, arbitrariness or failure to consider relevant material.

Important Case Law

Jayantilal Amratlal Shodhan v. F.N. Rana (1964)

The Supreme Court examined the nature of executive power under the Constitution and recognised that the Constitution does not establish a completely rigid separation of executive, legislative and judicial functions.

The case is relevant to understanding Article 53 and the constitutional distribution of functions among different authorities.

Maru Ram v. Union of India (1981)

The Supreme Court considered the constitutional principles governing the exercise of powers relating to the remission and reduction of sentences.

The Court emphasised that such powers must be exercised according to constitutional principles and cannot be used arbitrarily. The case is important for understanding that executive powers relating to punishment remain subject to legal limits.

Kehar Singh v. Union of India (1989)

The Supreme Court considered the President's pardoning power under Article 72.

The Court recognised that the President may examine the case on its merits when considering a petition for pardon. The exercise of the power is an executive function, but it remains subject to limited judicial review on recognised legal grounds.

The case is important because it explains the relationship between executive discretion and judicial supervision of constitutional powers.

Distinction Between the President and the Prime Minister

The President and Prime Minister perform different but connected roles. The President is the constitutional head, while the Prime Minister leads the government responsible for day-to-day administration and policy.

Practical Example

Suppose the President receives a petition seeking relief from a death sentence imposed by a court.

Article 72 gives the President the constitutional power to consider the petition and grant a pardon, commute the sentence or provide another form of relief permitted by the Article. The decision is ordinarily made on the aid and advice of the Council of Ministers.

If the decision is challenged on the ground that it was made arbitrarily or in bad faith, a court may examine whether the decision satisfies the applicable constitutional and legal requirements.

This example demonstrates how Article 72 gives the executive a power to grant relief while ensuring that the power is exercised within constitutional limits.

Summary

• The Union Government functions through the executive, legislature and judiciary, each with distinct constitutional responsibilities.
• Article 52 provides for the office of the President of India.
• Article 53 vests the executive power of the Union in the President, subject to the Constitution.
• Article 74 requires the President to act on the aid and advice of the Council of Ministers, with the limited power to return advice for reconsideration once.
• Articles 54 and 55 govern the President's indirect election through an electoral college and the proportional representation voting system.
• Articles 56 and 57 provide for a five-year term and eligibility for re-election without a constitutional limit on the number of terms.
• Articles 58 to 60 deal with qualifications, conditions of office and the President's oath or affirmation.
• Article 61 provides the impeachment procedure for removing the President for violation of the Constitution.
• Article 62 governs the timing of elections to fill vacancies in the office of the President.
• Article 65 provides for the Vice-President to act as President when a vacancy occurs or to discharge the President's functions when required.
• Article 72 gives the President the power to grant pardons and other forms of relief in specified cases.
• The President's constitutional powers must be exercised according to the Constitution and remain subject to judicial review on recognised legal grounds.