President

Art 52. There shall be a President of India.

Constitutional Position of President

• President is a figure-head while the Council of Ministers wields the real executive power. As, Article 53, vest the executive power of the Union in the President. While, Article 74 (42nd Amendment, 1976) provides that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions.
• By 44th Amendment, 1978 a provision was added in Art. 74 that "the President may ask Council of Ministers to reconsider such advice and the President shall act in accordance with the advice tendered after such reconsideration.
•  President of India, similar to the king under the English Constitution is nominal or constitutional head of the Government; as India provides parliamentary form of government which is adopted from British Constitution.
•  However, His position is different from the President of the United States of America who is the real executive head as presidential form of government is prevailing in America. 

Election:

• The President of India is elected indirectly which reflects his role as a figure head.
• Art 54. - The President of India is elected by an- electoral college consisting of the elected members of both Houses of Parliament, legislative assemblies of the states and the elected members of the legislative assemblies of the Union Territories of Delhi and Puducherry.
• The manner of election of President is provided by Article 55.
• The election is held in accordance to the system of Proportional representation by means of Single transferable vote method.
• Anti defection laws are not applicable for voting in Presidential Elections. Since the election is by secret voting, political parties cannot identify the voting patterns easily.
•  In the election of the President the Proportional representation system is used to bring about parity between the votes of the members of Parliament and the members of the Assemblies.
• The formula to determine the weight of vote is:

Population of the state

--------------------------------------* 1000 = Value of vote of each M.L.A.

No. of M.L.A.s in the state

Total no. votes assigned to all the M.L.A.s

------------------------------------------------------- = Weight of votes of each M.P.

Total no. of elected M.P.s

• Each voter is allowed to exercise as many preferences as candidates are there. The voter indicates his order of preferences on the ballot paper. A candidate in order to be elected must secure his quota of votes which is 50% of valid votes +1.  If no candidate secures the quota, the candidate with the fewest votes is eliminated and that candidate's votes are transferred. This process repeats till a candidate gets the quota of votes required to win.
• Art. 56, the term of President to hold office is five years from the date on which he enters upon his office until, he resigns or impeached.
• In case of resignation, the President hands over the letter to the Vice-President of India.
• Art. 57, President, subject to the other provisions of the Constitution is eligible for re-election.

Election disputes

• Article 71 -Election disputes
• All disputes in connection with the election of a President shall be decided by the Supreme Court and whose decision shall be final.
• If the election of President is declared void by the Supreme Court, acts done by the office of President on or before the date of the decision of the Supreme Court shall not be invalidated.
• The election of President shall not be called in question on the ground of the existence of any vacancy in the Electoral College.

Eligibility

• Article 58 sets the qualifications of the office of the President. A President must be:

             ·    A citizen of India
             ·   Of 35 years of age or above
             ·   Qualified to become a member of the Lok Sabha.

• A person shall not be eligible for election as President if he holds any office of profit under the Government of India.
• Certain office-holders are permitted to stand as Presidential candidates. These are:

            ·   The current Vice President.
            ·  The Governor of any State.
            ·  A Minister of the Union or of any State (Including Prime Minister and Chief                          Ministers).

• In the event that the Vice President, a State Governor or a Minister is elected President, they are considered to have vacated their previous office on the date they begin serving as President.

Oath or affirmation

Article 60 - The President take oath in the presence of the Chief Justice of India (or in his absence, the senior-most Judge of the Supreme Court),  that he shall protect, preserve and defend the Constitution.

Powers and duties

Legislative

(i)       He can summon or prorogue the Parliament;

(ii)      He can dissolve the sitting Lok Sabha and call for fresh elections;

(iii)     He can send the message to both the house of Parliament.

(iv)     He addresses a joint session of both the houses of the Parliament after the general elections and also at the beginning of the first session each year.

(v)      If there is a deadlock in the process of legislation between both the Houses of Parliament, the President has the power to summon a joint session to do away with the impasse.

(vi)     The constitution requires the previous sanction of the President for introducing certain legislations for example

·  Bill which seeks to create a new state or change the boundary of an existing state or change the name of a state.

·  Bill which deals with Fundamental Rights.

·  Money bills

(vii)     All bills passed by the Parliament can become laws only after receiving the assent of the President.

President on receiving the bill from parliament can:

a.        Give his accent.

b.       Withhold his accent.

c.        Return the bill for reconsideration.

·    He can return a bill to the Parliament, if it is not a money bill or a constitutional amendment bill, for reconsideration.

·    When after reconsideration, the bill is passed and presented to the President, with or without amendments, President is obliged to assent it.

·    The President can also withhold his assent to the bill (rather than return it to the Parliament).It is called pocket veto.

(viii)   He issues ordinances when either of the two Houses of the Parliament is not in session.

·    Presidential ordinance have the same force and effect as laws passed by Parliament.

·    These are temporary legislation which requires parliamentary approval for their continuance as soon as Parliament is convened.

·    Ordinances remain valid for no more than six weeks from the date the Parliament is convened.

·    The ordinance becomes in operative if before the expiry of six weeks a resolution is passed by Parliament against it.

·    The ordinance may be withdrawn by the President at any time.

(ix)      He can appoint any member of the Lok Sabha to preside over its proceedings when the offices of both, the Speaker and Deputy Speaker fall vacant simultaneously.

(x)       He can appoint any member of the Rajya Sabha to preside over its proceedings when the offices of both, the Chairman and Deputy Chairman fall vacant simultaneously.

(xi)      He can nominate two members from Anglo Indian Community to the Lok Sabha, if he is satisfied that the Community is not adequately represented in the House.

(xii)     He can nominate twelve members to the Rajya Sabha from among persons having special knowledge and practical experience of science, art, literature and social service.

(xiii)    He causes some important reports to be laid before the Parliament. Some of the many reports are : reports of Comptroller and Auditor General, Finance Commission, Union Public Service Commission, Language Commission are some of the many reports caused by the President to be laid before the Parliament.

Executive powers

1.   All the executive powers of the Central Government vests in the President. (Art 53)

2.   The President is the chief executive of the country. Administration of the country is carried out on his name.

3.   He is the Supreme Commander of the Indian Armed Forces.

4.   He appoints the Prime Minister and the other members of the Council of Ministers at the centre.

5.   He also, distributes portfolios to Council of Ministers on the advice of the Prime Minister.

6.   He shall have a right to be informed of the affairs of the union.

7.   He makes major appointments in the country, such as

 ·    Governors of the States,

 ·    the Judges of the Supreme Court and High Courts,

 ·    Election Commissioner,

 ·    Comptroller and Auditor General of India.

 ·    the Attorney General

 ·    The Chairman and other Members of the Union Public Service Commission.

8.   He makes the appointments of Indian Ambassadors to other countries and receives     the ambassadors of other countries to India.

Financial powers

1. No Money Bill can be presented before the Lok Sabha without the prior permission of    the President.
2. Budget of the Centre Government is presented before the Lok Sabha by the Union Finance Minister only with the permission of the President.
3. The President appoints a finance commission every five years to recommend the distribution of taxes between Centre and States.
4. The Contingency Fund of India is at his disposal. He can make advances out of it to meet the unforeseen expenditure.

Judicial powers

The purpose of granting such powers to the President is to rectify the possible judicial errors.

1.   The President appoints the Chief Justice and other Judges of the Supreme Court.

2.   The President dismisses the judges if the two Houses of the Parliament pass resolutions to that effect by two-thirds majority of the members present.

3.   He also appoints the Judges of High Courts of the Indian States.

4.   He has the power to pardon or to decrease the punishment of a criminal.

According to Article 72, the President can grant pardons in the following situations:

 ·   When, punishment is for offence against Union Law

 ·   When, punishment is by a Military Court

 ·   When, sentence is a death sentence

5.   He can seek the advice of the Supreme Court on any legal or constitutional matter.(Art.143). However it is up to the Supreme Court whether to render any advice to the President and on the other hand it is for the President either to accept or reject such advice if tendered.

6.  While in office, the President enjoys the judicial immunity:

·   No criminal proceedings can be initiated against him during his term in office.

·   He is not answerable for the exercise of his/her duties.

Diplomatic powers

1.   All international treaties and agreements are negotiated and concluded on behalf of the President.

2.   The President represents India in international forums.

3.   The President send and receive diplomats.

Military powers

1. The President is the supreme commander of the defence forces of India.
2. The President can declare war or conclude peace subjected to the approval of parliament.
3. He appoints the heads of the armed forces. 

Emergency powers

The President can declare three types of emergencies: national, state and financial.

       a.   National emergency

• The President of India under Article 352 can declare emergency at any time when he is satisfied that security of India or part thereof has been threatened by war, external aggression or armed rebellion.
• Such an emergency was declared in India in 1962 (Indo-China war), 1971 (Indo-Pakistan war), 1975 to 1977 (declared by Indira Gandhi on account of "internal disturbance").
• The President can declare such an emergency only on the basis of a written request by the Cabinet Ministers headed by the Prime Minister.
• This must be approved by resolutions of both houses of Parliament within one month from the date of its issue.
• It may continue for indefinite period but it must be extended every six months through Parliamentary approval.
•  All such resolutions must be passed by a majority of two thirds of members in both the Houses.
• The President can revoke it any time.
• During National Emergency Federal structure of the country is converted to unitary for purposes of uniformity of administration. Due to which President acquires following extra-ordinary powers:

1. The law making power of Parliament is extended to the items in the state     list. Such laws are valid upto a maximum period of six months after the expiry of emergency.
2. The President can issue directions to any state in a manner as the power to be exercised by State executive.
3. The President can rearrange the distribution of revenues between the union and the states to ensure availability of sufficient funds to the central government.
4. The President can suspend fundamental rights except (Article 20) Right in respect of conviction for offenses and (Article 21) Right to Life and Personal liberty.
5.  Art. 19 can only be suspended during external emergency and not during internal disturbance.
6. The President can extend the life of the Parliament by a year. 

      b.       State emergency

• State emergency, also known as President's rule, is declared due to breakdown of constitutional machinery in a state.
• A State Emergency can be imposed under:

           1.        By Article 356 – If that state failed to run constitutionally i.e.    constitutional machinery has failed.
           2.       By Article 365 – If that state is not working according to the given direction of the Union Government.

• Such an emergency must be approved by the Parliament within a period of two months.
• It can be imposed from six months to a maximum period of three years with repeated parliamentary approval every six months. . However, after one year it can be extended only if

          1.        A state of National Emergency has been declared in the country or in the    particular state.
          2.       The Election Commission finds it difficult to organise an election in that state.
 During such an emergency:
      ·         President takes over the administration of the state.
      ·         He authorizes the Governor of the state to run its administration on his   behalf.
      ·         He cannot interfere with the jurisdiction of the concerned State High Court.
      ·         The Legislative Assembly can be dissolved or may remain suspended and the powers of the State Legislature are exercised by the Parliament.

     c.       Financial emergency

If the President of India feels satisfied that the financial stability of India or any of its part is seriously affected he may proclaim financial emergency under Art 360.

·         It must be approved by the Parliament within two months.

·         It has never been declared.

·         It remains in force indefinitely until revoked by the President.

·         The President can reduce the salaries of all government officials, including judges of the Supreme Court and High Courts, in case of a financial emergency.

·         All money bills passed by the State legislatures are submitted to the President for approval.

·         They can direct the state to observe certain principles (economy measures) relating to financial matters.

Discretionary powers of President

In general, the President of India accepts the advice of the Council of Ministers at the centre. But in some circumstances he acts in his discretion. These circumstances or situations are:

1. According to Art. 74 and Art 111, President can seek reconsideration of an issue from   the Council of Ministers.
2. The President on his own decision can ask for information about the workings of the government from the Prime Minister according to Art. 78.
3. If after the Lok Sabha election, majority is not obtained by any party, then the President uses his discretionary power to choose the Prime Minister.
4. When the Prime Minister, feels that his government no longer enjoys the support of majority in the Lok Sabha, he can recommend fresh election to the President. However, President is not bound to accept his advice.
5. If a Governor, without giving assent to a bill passed by the state legislature, sends it to the President for his assent, the president may give assent to it or he may return it for reconsideration of the state legislature.
6. If the bill, after reconsideration by the state legislature, is again sent to the President for his assent, he may or may not give assent to the bill. This bill becomes defunct if it fails to get the assent of the President.

Removal

Art. 61, The President may be removed before the expiry of the term through impeachment.

          ·   President can be removed for violation of the Constitution of India. As he takes oath  to protect, preserve and defend the Constitution.
          ·   The process may start in either of the two houses of the Parliament.
          ·   The house initiates the process by levelling the charges against the President.
          ·   The charges are contained in a notice that has to be signed by at least one quarter of the total members of that house.
          ·   The notice is sent to the President and 14 days later, it is taken up for consideration.
          ·   A resolution to impeach the President has to be passed by a two-third majority of the total members of the originating house.
          ·    It is then sent to the other house.
          ·    The other house investigates the charges that have been made. During this process, the President has the right to defend himself through an authorized counsel.
          ·    If the second house also, approves the charges by two-thirds majority. Then, President stands impeached and is deemed to have vacated his office from the date when such a resolution stands passed.
          ·    Other than impeachment, no other penalty can be given to the President for the violation of the Constitution.
          ·    No president has faced impeachment proceedings so the above provisions have never been used.

Art. 62, the election of the President must be conducted within six months from the date of vacancy occurs due to his death, resignation or removal.

Also, election to fill the vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term.

Article 65 - Whenever the presidential office falls vacant on account of his death, resignation or impeachment the Vice-President succeeds him for a period of six months.

 Legal immunity to President during his tenure:

•  He is not answerable to any court of law while discharging his responsibilities.
•  He cannot be arrested or imprisoned in connection with any civil or criminal case.
•  However, civil suits may be instituted against him by serving at least two months notice.

Public interest Litigation

Solved Objective Questions related to this topic

Public-interest litigation (PIL) is a litigation for the protection of the public interest.

• The concept of PIL has emanated from the power of judicial review enjoyed by the higher courts in India.
• The concept of PIL has its origin in Australia.
• It is in consonance with the objects enshrined in Article 39A of our Constitution.
•  Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court.
• A PIL can be filed by any individual or organization on behalf of the aggrieved persons under Article 32 and Article 226. Even a postcard can be treated as a writ petition.
• It gives chance to the poor persons of society to knock the door of High Court or Supreme Court for enforcing their Fundamental Rights.
• This PIL is basically for group interest and not for the individual interest. Thus Supreme Court or High Court can reject if it is intended to mean for individual.
• Again if on hearing the petition, the court finds that no Fundamental right of the person of the group of persons is violated, it can reject the public interest Litigation.

Critism:

1.  It has increase the burden of already overburden courts.

2.  It has led to the increase in frivolous litigation filed to delay the things or gain publicity.

3.  It has increased the judicial interference in the domain of legislative and executive.

Fundamental Duties

SolvedObjective Questions related to this topic

Fundamental Duties
The Fundamental Duties were added as Article 51A by the 42nd Amendment, 1976,
These were recommended by the Swaran Singh Committee.
These are non-justifiable i.e their compliance cannot be enforced.
Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002.
A citizen cannot enjoy rights in isolation because the rights of some are the duties of others. Therefore, the rights and duties are correlated.

Fundamental Duties  prescribed in constitution are as follows:
(a) It is the duty of every citizen to abide by the constitution and respect its ideal and institutions, the National Flag and the National Anthem.
(b) It is the duty to cherish and follow the noble ideals which inspired our national struggle for freedom.
(c) It is the duty to uphold and protect the sovereignty, unity and integrity of India.
(d) It is the duty of every citizen to defend the country and render national service when called upon to do.
(e) It is the duty to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women.
(f) It is the duty of every citizen to value and preserve the rich heritage of our composite culture.
(g) It is the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and have compassion for living creatures.
(h) It is the duty of the citizen to develop the scientific temper, humanism and the spirit of inquiry and reform.
(i) It is the duty of every citizen to safeguard public property and to abjure violence.
(j) It is the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievements.
(k) It is the duty of every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years.( added by 86th Amendment in 2002)

Directive Principles of State Policy

• Directive Principles of State Policy (DPSP) contained in Part IV of the Constitution of India
• These provisions are not enforceable by any court, but are considered fundamental in the governance of the country.
• These are enforceable through elections as government which works for the betterment of people will be reelected.
• These provisions are inspired by the Constitution of Ireland and also by the principles of Gandhism.
• Directive Principles are classified under the following categories:

a. Gandhian – Article 40,46,47,48.

b. Socialistic- Article 39, 39A, 42,43A.

c. Western Liberal- Article 44,45,50,51.

• They aim to establish social and economic democracy through a welfare state.
• A welfare state is a concept in which the state attempts to protect and promote the economic and social well-being of its citizens.
•  According to Article 31-C ( inserted by the 25th Amendment Act of 1971 ),  If laws are made to give effect to the Directive Principles over Fundamental Rights, they shall not be invalid on the grounds that they take away the Fundamental Rights. In case of a conflict between Fundamental Rights and DPSP's, if the DPSP aims at promoting larger interest of the society, the courts shall have to uphold the case in favour of the DPSP.

The various articles on Directive Principles are as follows:

•  Article 38 instructs the State to promote welfare of the people
•  Article 39(a) it talks about state's role in providing adequate means of livelihood to all its citizens.
• Article 39(b) it talks about state's role for equitable distribution of resources.
• Article 39(c) provides for prevention of concentration of wealth in fewer hands.
• Article 39(d) provides for equal pay for equal work, for both men and women.
• Article 39(e) provides for prevention of abuse of workers, men and women, and  children.
• Article 39(f) (added by 42nd Amendment) protects children against exploitation and given opportunities for their healthy development.
• Article 39(A) (added by 42nd Amendment), provides for equal justice and free legal Aid.
• Article 40 says that the state shall organize village Panchayats as units of self-government.
• Article 41 provides for right to work, public assistance in case of unemployment, old age, sickness and disablement keeping in view the limitations of economic resources.
• Article 42 Provides for just and humane conditions of work and maternity relief. 
• Article 43 provides for living wages for worker and a decent standard of life, leisure and social and cultural opportunities for people.
• Article 43(A) (added by 42nd Amendment), provides for participation of workers in the management of industry and other Undertakings.
• Article 44 provides for a Uniform Civil Code applicable to the entire country.
• Article 45 provides free and compulsory education to children till 14 years of age. It has now been made a fundamental right under Article 21 A  by 86th Amendment Act, 2002..
• Article 46 provides for protection of educational and economic interests of scheduled castes and scheduled tribes and other weaker sections of the society.
• Article 47 provides for prohibition of consumption of intoxicating liquor and to raise the level of nutrition and fine improvement of public health.
• Article 48 provides for preserving and improving the breeds and prohibiting the slaughter of cows, calves and other milks and draught cattles.
• Article 48A (added by 42nd Amendment), provides for protection and improvement of the environment and to safeguard the forests and wild life of the country.
• Article 49 provides for protection of monuments of historical and national importance.
• Article 50 provides for separation of judiciary from executive.
• Article 51 provides for promotion of international peace and security.

 Implementation of Directive Principles

• “Sarva Siksha Abhiyan” for Universalisation of Elementary Education The 86th constitutional amendment of 2002 inserted a new article, Article 21-A, into the Constitution, that seeks to provide free and compulsory education to all children aged 6 to 14 years.
•  Welfare schemes for the weaker sections are being implemented both by the Central and state governments. These include programmes, such as boys' and girls' hostels for scheduled castes' or scheduled tribes' students. In order to protect scheduled castes and scheduled tribes from atrocities, the Government enacted the The Prevention of Atrocities Act, which provided severe punishments for such atrocities.
• Several Land Reform Acts were enacted to provide ownership rights to poor farmers.  The thrust of banking policy in India has been to improve banking facilities in the rural areas.
•  The Minimum Wages Act of 1948 empowers government to fix minimum wages for employees engaged in various employments.
•  The Consumer Protection Act of 1986 provides for the better protection of consumers.
• The Equal Remuneration Act of 1976 provides for equal pay for equal work for both men and women.
•  The MNREGA  was launched to attain the objective of gainful employment for the rural poor. The programme was implemented through the Panchayati Raj institutions.
• Panchayati Raj now covers almost all states and Union territories. One-third of the total number of seats has been reserved for women in Panchayats at every level.
• Legal aid at the expense of the State has been made compulsory in all cases pertaining to criminal law, if the accused is too poor to engage a lawyer.
•  Judiciary has been separated from the executive in all the states and Union territories except Jammu and Kashmir and Nagaland.
• India's Foreign Policy has also to some degree been influenced by the DPSPs. India has in the past condemned all acts of aggression and has also supported the United Nations’ peace-keeping activities.  Indian Army had participated in many UN peace-keeping operations. India has also been in favour of nuclear disarmament.

Failure: Uniform Civil Code still not implemented.

Directives in other parts of the constitution

• Article 350A - Every State and of every local authority shall provide adequate Facilities for instruction in mother-tongue at primary stage of education to children belonging to linguistic minority groups.
• Article 351 - It shall be the duty of the Union to promote the spread of the Hindi language, so that it may serve as a medium of expression for all the elements of the composite culture of India.
• Article 335 - The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

Difference between Fundamental Right and Directive Principles of State Policy

Fundamental Right 1. Part-III, containing articles from 12 to 35 deal with Fundamental Rights. 2. The Fundamental Rights can be enforceable by a court against the State. 3. These are primarily aim at assuring political freedom to the citizens by protecting them against the excessive State action. 4.  Fundamental rights are the means to attain goals. 5. Fundamental rights are described in judgment of the Supreme Court as “transcendental”, “inalienable” and “personal”. 6. There are negative in character. The State is asked not to do certain things.

Directive Principles of State Policy 1. Part –IV, containing Articles from 36 to 50, deal with Directive Principle of State Policy. 2. The Directive Principles of State Policy cannot be enforceable by any Court. 3. These are aimed at securing welfare, social and economic freedoms by appropriate State action. 4.  Directive Principles are the goal to be attained. 5. The Supreme Court described the Directive Principles of State policy as “Conscience of our Constitution”. 6. These are positive in character. The State is directed to take certain positive steps for the welfare and advancement of the people.