NIRMA UNIVERSITY

INSTITUTE OF LAW
AN ARTICLE SUBMITTED FOR THE PARTIAL
FULFILLMENT OF THE FIVE YEARS INTEGRATED
DEGREE OF LAW HONOURS
ON

Powers exercised by the President of India

Comparative Constitutional Law
B.A., LL.B. (Hons.)
SEMESTER-VII

Under the Guidance of

Mr. Yogesh Madan Dharangutti
Assistance Professor

Submitted By
PALLAV SHARMA
11bal096

Powers exercised by the President of India

-PALLAV SHARMA
Provisions related to President in our Constitution
The President is the Chief Executive of the Union of India and the executive power of the
Union is vested in him.(Arts. 52 and 53). Article 53 also vests in the President the supreme
command of the defence forces of the Union. The Constitution provides for the office of the
Vice-President in the part dealing with Executive, because he acts as the President in the
vacancy caused in the office of the President or during the absence or illness of the President
(Art 65). Otherwise, his duties are not executive, since he is the ex-officio Chairman of the
Council of States (Art.64).
No person is eligible for election as President, unless he is a citizen of India and has
completed the age of 35 years, and in the case of President, is qualified for election as a
member of the House of the People (Art.58). A person is not qualified to stand for election as
President if he holds any office of profit referred to in Art.58. The President is elected by an
electoral college consisting of the elected members of both houses of Parliament and the
elected members of the Legislative Assemblies of the State (Art.54). He is entitled to official
residence free of rent and to such allowances and privileges as may be determined by
Parliament by law, which emoluments and allowances cannot be diminished during their term
of office (Art.59). Before entering upon his office the President takes the oath as prescribed in
Art.60. Under Art.56 the term of office of the President is 5 years but he continues to work
until their successors enter upon their offices.
Article 361 provides absolute immunity to the President and the Governor for the exercise
and performance of the power and duties of their office or for any act done or purporting to
be done by them in the exercise and performance of those powers and duties, subject, as
regards the President, to an impeachment under Art.61. Civil proceedings in respect of an act
done or purporting to be done by the President or the Governor in his personal capacity
cannot be instituted without the prescribed statutory notice (Art.361).

Various Powers of President as mentioned in Constitution

Like most countries, the power of pardon is conferred upon the Chief Executive, and likewise
our Constitution confers that power on the President (Art.72) and on the Governors of the
States (Art.161).
Having created the office of the President and vested the executive power of the Union in it,
the executive power of the Union is made co-extensive with its legislative power, except that
unless expressly provided in the Constitution or by any law made by the Parliament, the
executive power does not extend to any matter in the concurrent legislative list (Art. 73).
Art. 74(1) provides that there shall be Council of Ministers with the Prime Minister as the
head. The Prime Minister is to be appointed by the President and the other ministers are to be
appointed by President on the advice of the Prime Minister.
Executive power is not defined in our Constitution directly. Article 73 and 163 are concerned
primarily with the extent of executive power. It may be observed that the distinction made in
Amritlals Case between the executive functions of the Union of India and the functions of
the President under the Constitution was made in respect of an entrustment of the functions of
the Union to a State, or to officers of that State; and the Supreme Court was not concerned
with the question whether the President was under an obligation to act on the advice of the
Council Of Minister. Its not certain in all the cases.
This brings us to the question that whether the President can dismiss the Prime Minister? For
practical purposes this question arises only after a Council of Ministers headed by the Prime
Minister has formed. There is no express provision in our constitution which authorises the
President to dismiss the Prime Minister. However, it has been suggested that under Art.367
unless the context otherwise requires, the General Clauses Act, 1897, applies to the
interpretation of the Constitution. And Sec.16 of that Act, provides, that the Power to appoint
includes the power to suspend or dismiss. But this power us expressly made subject to a
context to the contrary. And the context, which includes other provisions of the Constitution,
clearly indicates to the contrary, because once the ministry is formed, the under Art. 74(1) the
President must, in the discharge of his functions, act according to the advice of the Council of
Ministers and it is most improbable that the Council of Ministers would advice the President
to dismiss the Prime Minister.

Ordinance making powers of the President

Article 123 of Indian Constitution states the Power of President to promulgate Ordinances
during recess of Parliament:
(1) If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exist which render it necessary for him to take immediate action,
he may promulgate such Ordinance as the circumstances appear to him to require
(2) An Ordinance promulgated under this article shall have the same force and effect as an
Act of Parliament, but every such Ordinance
(a) shall be laid before both House of Parliament and shall cease to operate at the expiration
of six weeks from the reassemble of Parliament, or, if before the expiration of that period
resolutions disapproving it are passed by both Houses, upon the passing of the second of
those resolutions; and
(b) may be withdrawn at any time by the President Explanation Where the Houses of
Parliament are summoned to reassemble on different dates, the period of six weeks shall be
reckoned from the later of those dates for the purposes of this clause
(3) If and so far as an Ordinance under this article makes any provision which Parliament
would not under this Constitution be competent to enact, it shall be void CHAPTER IV THE
UNION JUDICIARY.
The Ordinance making power of the President has always been a debatable issue. The debate
was mostly about whether this ordinance making power is subject to judicial review; the
necessity for immediate action while promulgating an Ordinance; and in such a country
where the separation of power rule is applied is it correct that execute can legislate a law or
performing function of legislature?!
In RC Cooper vs. Union of India 1 the Supreme Court, while examining the constitutionality
of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to
nationalise 14 of Indias largest commercial banks, held that the Presidents decision could be
challenged on the grounds that immediate action was not required; and the Ordinance had
been passed primarily to by-pass debate and discussion in the legislature.

1 1970 AIR 564

A new clause (4) was added in Article 123 stating that the Presidents satisfaction while
promulgating an Ordinance was final and could not be questioned in any court on any
ground.2 In 1978 clause (4) inserted by the 38th CAA and therefore reopened the possibility
for the judicial review of the Presidents decision to promulgate an Ordinance.3
In AK Roy vs. Union of India

while examining the constitutionality of the National

Security Ordinance, 1980, which sought to provide for preventive detention in certain cases,
the Court argued that the Presidents Ordinance making power is not beyond the scope of
judicial review. However, it did not explore the issue further as there was insufficient
evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to
exercise judicial review over the Presidents decision only when there were substantial
grounds to challenge the decision, and not at every casual and passing challenge
In T Venkata Reddy vs. State of Andhra Pradesh5, while deliberating on the promulgation
of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984
which abolished certain village level posts, the Court reiterated that the Ordinance making
power of the President and the Governor was a legislative power, comparable to the
legislative power of the Parliament and state legislatures respectively. This implies that the
motives behind the exercise of this power cannot be questioned, just as is the case with
legislation by the Parliament and state legislatures.

Conclusion
In the researchers view the President is although a head of Executive but originally we can
call him just a paper head because in most of the cases he cannot work without the aid and
advice of Council of Ministers and Prime minister.

2 38thConstitutional Amendment Act, 1975

3 44thConstitutional Amendment Act, 1978
4 1982 AIR 710
5 1985 AIR 724

Regarding the Pardon provisions Supreme Court has been correct in not framing guidelines
for the exercise of mercy jurisdiction. If so happens, the exercise of the executive will
become similar to judicial functions. Where an interpretation of the guideline sis to be done,
it will be required with respect to every factual situation. An application for pardon before
conviction should not be allowed because: firstly, they do not affect the purpose of mercy
jurisdiction and secondly, through procedural fairness the scope of a bias is reduced.
And regarding the ordinance making power, since the inception of the constitution, many a
times the ordinance making power of President has been a controversial issue. It brings about
a gap between executive powers and legislative powers which further creates an imbalance
between the working of the whole law structure of the company. Till now it is settled that an
ordinance passed can be challenged on various grounds like whether a President has violated
any provision related to Constitution while exercising his power, whether a President has
used excessive powers than conferred to him, or has made any colourable use of such power.
And there must be visible distinction made between an ordinance and a legislative act passed
which must be delivered or visible in various judgements delivered now and then.