Head of the Republic: The President's Constitutional Position, Discretionary Powers, and Vetoes

The President of India

Articles 52 to 78 in Part V of the Constitution govern the Union executive. This executive comprises the President, the Vice-President, the Prime Minister, the Council of Ministers, and the Attorney General of India.

The President is the constitutional head of the Indian State — the first citizen of the country and the living symbol of national unity, integrity, and solidarity.

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Electoral College

The President is chosen through indirect election — not by the general public, but by an electoral college consisting of:

1. Elected members of both Houses of Parliament (Lok Sabha and Rajya Sabha)
2. Elected members of the Legislative Assemblies of all States
3. Elected members of the Legislative Assemblies of the Union Territories of Delhi and Puducherry (added by the 70th Constitutional Amendment Act, 1992, effective June 1, 1995)

Who Does NOT Participate

The following are excluded from the presidential election:

• Nominated members of either House of Parliament
• Nominated members of State Legislative Assemblies
• All members (elected or nominated) of State Legislative Councils (Vidhan Parishads)
• Nominated members of the Delhi and Puducherry assemblies
• Members of a dissolved assembly (even if fresh elections have not yet been held)

Vote Value Formula

The Constitution mandates uniformity of representation across states and parity between states and the Union.

Value of an MLA's vote:

(Total population of the State ÷ Total elected members of the State Assembly) × (1/1000)

Note: 'Population' refers to the 1971 Census figures, until the first census after 2026 is published (84th Constitutional Amendment Act, 2001).

Value of an MP's vote:

Total value of votes of all MLAs of all States ÷ Total elected members of both Houses of Parliament

Method of Election

• Proportional representation through the Single Transferable Vote (STV) system
• Voting is by secret ballot
• Each elector gets one ballot paper but marks preferences (1, 2, 3...) against all candidates

Electoral Quota:

(Total valid votes polled ÷ 2) + 1

Counting process: First preference votes are tallied first. If a candidate reaches the quota, they are declared elected. If not, the candidate with the fewest first-preference votes is eliminated and their second-preference votes are redistributed. This continues until a candidate crosses the quota.

Disputes and Judicial Review

• All disputes regarding the presidential election are decided by the Supreme Court, whose decision is final and binding.
• An election cannot be challenged on the ground that the electoral college was incomplete (i.e., vacant seats existed).
• If the Supreme Court voids a presidential election, all official acts done before that declaration remain valid.

Why Indirect Election?

The Constituent Assembly chose indirect election for the following reasons:

1. It aligns with the parliamentary system where the President is a nominal executive — giving him a popular mandate through direct election while denying him real power would be constitutionally anomalous.
2. Direct election across India's vast electorate would be prohibitively expensive and time-consuming for a largely ceremonial office.
3. Electing the President only through Parliament (as some suggested) would make him a representative of the dominant party alone, not of the states. The present system ensures he represents both the Union and the States.

Note: The term 'proportional representation' is technically a misnomer in presidential elections since only one seat is filled. Similarly, 'single transferable vote' is debated because voters actually cast plural preferences.

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Qualifications for Presidential Candidacy

A person must:

1. Be a citizen of India
2. Have completed 35 years of age
3. Be qualified for election as a member of the Lok Sabha
4. Not hold any office of profit under the Union, any State, any local authority, or any other public authority

Exceptions: The sitting President, Vice-President, any State Governor, and Union or State Ministers are not deemed to hold offices of profit — they remain eligible.

Nomination requirements:

• At least 50 proposers and 50 seconders from the electoral college
• A security deposit of ₹15,000 in the Reserve Bank of India (forfeited if the candidate fails to secure 1/6th of votes polled)
• Before 1997: only 10 proposers/seconders and ₹2,500 deposit. Raised in 1997 to discourage non-serious candidates.

Oath of Office

Before assuming office, the President takes an oath to:

1. Faithfully execute the office
2. Preserve, protect, and defend the Constitution and the law
3. Devote himself to the service and well-being of the people of India

The oath is administered by the Chief Justice of India (or the seniormost Supreme Court judge in the CJI's absence). Any person acting as President must take the same oath.

Conditions of the President's Office

1. Must not be a member of either House of Parliament or any State Legislature (vacates such seat upon assuming office)
2. Must not hold any other office of profit
3. Is entitled to rent-free use of Rashtrapati Bhavan
4. Receives emoluments, allowances, and privileges as determined by Parliament
5. Emoluments cannot be reduced during the term of office

Salary (as of 2008 amendment): ₹1.50 lakh per month; pension at 50% of salary.

Immunities: The President enjoys personal immunity from legal liability for official acts. During the term, he is immune from criminal proceedings even for personal acts. He cannot be arrested or imprisoned. Civil proceedings for personal acts require a two-month prior notice.

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Term of Office

• Five years from the date of assuming office
• May resign by writing to the Vice-President
• Can hold office beyond five years until the successor assumes charge (to prevent an 'interregnum')
• Eligible for re-election for any number of terms (unlike the US, where a President cannot be elected more than twice)
• Historical note: Only Dr Rajendra Prasad has served two terms.

Impeachment

The President can be removed for 'violation of the Constitution' (a phrase left undefined by the Constitution). The process:

1. Charges may be initiated by either House of Parliament
2. The charges must be signed by 1/4th of the total membership of the initiating House
3. A 14-day notice must be given to the President
4. The initiating House passes the impeachment resolution by a 2/3rd majority of its total membership
5. The other House investigates the charges (the President has the right to appear and be represented)
6. If the second House also passes the resolution by a 2/3rd majority of its total membership, the President stands removed from the date of that resolution

Key distinctions:

• Nominated members of Parliament can participate in impeachment though they cannot vote in the presidential election
• Elected MLAs (States and UTs of Delhi & Puducherry) can vote in the presidential election but cannot participate in impeachment

No President of India has been impeached so far.

Vacancy in the President's Office

A vacancy arises on account of:

1. Expiry of term
2. Resignation
3. Removal by impeachment
4. Death
5. Other reasons (disqualification, election declared void)

Filling the vacancy:

• If the term is expiring: election must be held before the expiry
• If vacancy arises mid-term: election must be held within six months of the vacancy
• The newly elected President serves a full fresh five-year term

Acting arrangements:

• Vice-President acts as President when a mid-term vacancy occurs or the President is unable to discharge functions
• If the VP's office is also vacant: Chief Justice of India acts as President
• If the CJI's office is also vacant: the seniormost judge of the Supreme Court acts as President
• Any person acting as President enjoys all presidential powers, immunities, and entitlements

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1. Executive Powers

• All executive actions of the Government of India are formally taken in the President's name
• Appoints the Prime Minister and other ministers (they hold office during his pleasure)
• Appoints the Attorney General, CAG, Chief Election Commissioner and other Election Commissioners, UPSC Chairman and members, State Governors, Finance Commission Chairman and members, and others
• Can seek information from the PM on any matter of Union administration or proposed legislation
• Can require the PM to place before the Council of Ministers any decision taken by a minister individually but not considered collectively
• Can appoint commissions for SCs, STs, and other backward classes; inter-state councils for Centre-State cooperation
• Directly administers Union Territories through appointed administrators
• Can declare Scheduled Areas and exercises powers over scheduled and tribal area administration

2. Legislative Powers

• Can summon, prorogue, and dissolve Parliament; can convene a joint sitting of both Houses (presided by the Lok Sabha Speaker)
• Addresses Parliament at the commencement of the first session after each general election and the first session of each year
• Can send messages to either House regarding pending or other matters
• Nominates 12 members to Rajya Sabha (from persons with distinction in literature, science, art, or social service)
• Nominates 2 members to Lok Sabha from the Anglo-Indian community
• Decides on disqualification of MPs in consultation with the Election Commission
• Prior recommendation required for bills involving expenditure from the Consolidated Fund or altering state boundaries
• On bills passed by Parliament, the President may:
  • Give assent
  • Withhold assent
  • Return (non-money bills) for reconsideration — if Parliament re-passes, assent is mandatory
• On state bills reserved by the Governor, the President may give assent, withhold assent, or direct the Governor to return the bill; if the state legislature re-passes it, the President is not bound to give assent
• Can promulgate ordinances when Parliament is not in session
• Tables reports of CAG, UPSC, Finance Commission, etc., before Parliament

3. Financial Powers

• Money Bills can be introduced only with presidential prior recommendation
• Causes the Union Budget (Annual Financial Statement) to be laid before Parliament
• No demand for grant can be made without his recommendation
• Can make advances from the Contingency Fund of India for unforeseen expenditure
• Constitutes the Finance Commission every five years

4. Judicial Powers

• Appoints the Chief Justice and Judges of the Supreme Court and High Courts
• Can seek advisory opinions from the Supreme Court (the Court's advice is not binding on the President)
• Can grant pardon, commutation, remission, respite, and reprieve in cases involving: Union laws, court martial sentences, and death sentences

5. Diplomatic Powers

• International treaties are concluded in his name (subject to parliamentary approval)
• Represents India in international forums; sends and receives ambassadors, high commissioners, etc.

6. Military Powers

• Supreme Commander of India's defence forces
• Appoints the chiefs of the Army, Navy, and Air Force
• Can declare war or conclude peace (subject to parliamentary approval)

7. Emergency Powers

The President can proclaim three types of emergencies:

• National Emergency — Article 352
• President's Rule (State Emergency) — Articles 356 & 365
• Financial Emergency — Article 360

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Under Article 111, when Parliament passes a bill and presents it for presidential assent, the President has three options:

1. Give assent → Bill becomes law
2. Withhold assent → Bill does not become law
3. Return the bill (non-money bills only) for reconsideration → If Parliament re-passes it (with or without amendments), the President must give assent

The President possesses three of the four internationally recognised forms of veto:

Absolute Veto

Used mainly for private members' bills or when a cabinet resigns after passing a bill and the new cabinet advises against assent.

• Example: In 1954, President Rajendra Prasad withheld assent to the PEPSU Appropriation Bill. In 1991, President Venkataraman withheld assent to the Salary Amendment Bill of Parliament members.

Suspensive Veto

President returns the bill for reconsideration. Parliament can override it by re-passing with an ordinary majority (unlike the US, which requires a higher majority). The President cannot exercise this veto on Money Bills — he can only assent or withhold assent.

Pocket Veto

The President takes no action on the bill. Since the Indian Constitution prescribes no time limit for presidential decision (unlike the US President's 10-day limit), the Indian pocket is said to be bigger than the American President's.

• Example: President Zail Singh exercised the pocket veto on the Indian Post Office (Amendment) Bill, 1986, which threatened press freedom. His successor Venkataraman returned it in 1989; the new government dropped it.

No Veto on Constitutional Amendment Bills

The 24th Constitutional Amendment Act, 1971 made it obligatory for the President to give assent to constitutional amendment bills. No veto applies.

Presidential Veto over State Legislation

When a state bill reserved by the Governor reaches the President:

• He can assent, withhold assent, or direct return for reconsideration
• If the state legislature re-passes the returned bill, the President is still not bound to give assent (unlike with central legislation)
• The Constitution prescribes no time limit, so pocket veto is also available over state legislation

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Article 123 empowers the President to promulgate ordinances during parliamentary recess. Ordinances have the same legal force as Acts of Parliament but are temporary in nature.

Conditions and Limitations

1. Parliament not in session: An ordinance can be issued only when both Houses, or at least one House, is not in session. An ordinance issued when both Houses are in session is void.
2. Satisfaction of urgency: The President must be satisfied that circumstances necessitate immediate action. This satisfaction is justiciable on grounds of malafide (Cooper Case, 1970). The 38th Amendment (1975) had made it non-justiciable, but the 44th Amendment (1978) restored judicial review.
3. Co-extensive with Parliament's legislative scope: An ordinance can cover only subjects on which Parliament can legislate, and is subject to the same constitutional limits — it cannot abridge Fundamental Rights.
4. Parliamentary approval required: Every ordinance must be placed before both Houses when Parliament reassembles. It lapses if:
   • Both Houses pass resolutions disapproving it, or
   • Parliament takes no action within six weeks of reassembly
   • The President withdraws it

Maximum life of an ordinance: Six months + six weeks (six months being the maximum gap between two sessions).

Other features:

• Ordinances can be retrospective in effect
• Can modify or repeal earlier Acts or ordinances
• Can alter or amend tax laws
• Cannot amend the Constitution
• Issued only on the advice of the Council of Ministers (not a discretionary power)
• The President can withdraw an ordinance at any time on ministerial advice

Repromulgation: In D.C. Wadhwa v. State of Bihar (1987), the Supreme Court ruled that successive repromulgation of ordinances without making any effort to pass corresponding legislation is unconstitutional. The ordinance-making power cannot be used as a substitute for regular legislative power.

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Article 72 grants the President the power to pardon persons convicted of offences in three categories:

1. Offences against a Union Law
2. Sentences by a court martial (military court)
3. Death sentences

This is an executive power, independent of the judiciary. The President does not act as an appellate court. The twin objects are: (a) correcting judicial errors, and (b) providing relief from sentences considered excessively harsh.

Forms of Presidential Clemency

President vs Governor: Pardoning Power

Supreme Court's Guidelines on Pardoning Power

1. The petitioner has no right to oral hearing before the President
2. The President can re-examine evidence and reach a different conclusion from the court
3. The power is exercised on the advice of the Union Cabinet
4. The President is not bound to give reasons for the decision
5. Relief can be granted not only from harsh sentences but also from evident mistakes
6. No specific guidelines need to be laid down by the Supreme Court
7. The power is subject to judicial review only if the decision is arbitrary, irrational, malafide, or discriminatory
8. A second mercy petition is not maintainable if the earlier one was already rejected

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Parliamentary System: Nominal Executive

India follows a parliamentary form of government. The President is the nominal/constitutional executive; real executive power vests in the Council of Ministers headed by the Prime Minister.

Dr B.R. Ambedkar's formulation in the Constituent Assembly captures this precisely: the President of India occupies the same position as the British monarch — head of State but not of the executive; symbol of the nation, not its ruler. He likened the President to a ceremonial seal through which the nation's decisions are made known.

Key Constitutional Articles

• Article 53: Executive power of the Union vests in the President and is exercised directly or through subordinate officers
• Article 74: A Council of Ministers with the PM at its head shall aid and advise the President, who shall act in accordance with that advice
• Article 75: The Council of Ministers is collectively responsible to the Lok Sabha

Evolution through Constitutional Amendments

• 42nd Amendment (1976): Made presidential compliance with ministerial advice explicit and mandatory
• 44th Amendment (1978): Allowed the President to send the advice back once for reconsideration, but the reconsidered advice is binding

Example: In October 1997, President K.R. Narayanan returned the Cabinet's recommendation to impose President's Rule in Uttar Pradesh. The Cabinet reconsidered and withdrew the proposal — saving the Kalyan Singh government. In September 1998, he similarly returned the recommendation for President's Rule in Bihar; the Cabinet re-advised and President's Rule was finally imposed in February 1999.

Situational Discretion

Although the President has no constitutional discretion, he does have situational discretion — the power to act without ministerial advice — in the following circumstances:

1. Appointment of PM when no party commands a clear majority in the Lok Sabha, or when the incumbent PM dies without an obvious successor
2. Dismissal of the Council of Ministers when it cannot prove the confidence of the Lok Sabha
3. Dissolution of Lok Sabha when the Council of Ministers has lost its majority

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• The electoral college composition and who is excluded is a recurring source of questions
• Vote value formulas for MLAs and MPs are conceptually important
• The four types of veto — and which ones India's President has vs the US President — is a classic comparison
• The pocket veto: India has no time limit (bigger pocket than the US); US has a 10-day limit
• Ordinance rules: maximum life, judicial review, D.C. Wadhwa case
• Pardoning power: President vs Governor distinctions, especially on court martial and death sentences
• Impeachment: who participates vs who does not (compare with election participation)
• The 42nd and 44th Amendments and their effect on Article 74 binding advice
• Situational discretion vs constitutional discretion of the President