WHAT EFFECT THE 44TH AMENDMENT HAD ON THE PRESIDENT?
After 44th Amendment, except in certain marginal cases referred to by the Supreme Court, the President shall have no power to act in his discretion any case. He must act according to the advice given to him by the Council of Ministers, headed by the Prime Ministers, so that refusal to act according to such advice will render him liable to impeachment for violation of the Constitution. This is subject to the President’s new power to send the advance received from the Council of Ministers, in a particular case, back to them for their reconsiderations; and if the Council of Ministers adheres to their previous advice, the President shall have no option but to act in accordance with such advice. The power to return for reconsideration can be exercised only once, on the same matter.
Powers & Functions of The President
The Constitution says that the “executive power of the Union shall be vested in the President” [Art. 53]. The President of India shall thus be the head of the ‘executive power’ of the Union. Before we take up an analysis of the different powers of the Indian President, we should note the constitutional limitations under which he is to exercise his executive powers. It may be said that the powers of the President will be the powers of his Ministers, in the same manner as the prerogatives of the English Crown have become the ‘privileges of the people’ (Dicey) An inquiry into the powers of the Union Government, therefore, presupposes an inquiry into the provision of the Constitution which vest powers and functions in the President.
The Indian Constitution, by its various provisions, vests the following powers in the hands of the President under the expression ‘executive power’, subject to certain limitations.
- Executive Powers: The executive power of the Union is vested in the President. The executive power does not only mean the execution of laws passed by the legislative but also the powers to carry on the business of the Government, However, it is evident that President is not free to use his powers, rather he acts (binding) on the advises of the Council of Ministers. In this regard, the 42nd Amendment is a mile-stone. The 44th Amendment, however, did loosen the grip to some extent as it gave the President of India the right to return a bill for reconsideration of the Cabinet and is
bound to give his consent when returned. In broad perspective, one can say that administrative powers of the President include administrative powers and military powers. Administratively, the President may not discharge any function as there are ministries responsible for such an act. This way President becomes a formal head and action is taken in his name.
In the matter of administration, not being a real head of the Executive like the American President, the Indian President shall not have any administrative function to discharge nor shall he have that power of control and supervision over the Departments of the Government as the American President possesses. But though the various departments of Government of the Union will be carried on under the control and responsibility of the respective Ministers in charge, the President will remain the formal head of administration, and as such, all executive action of the Union must be expressed to be taken in the name of the President. The only mode of ascertaining whether an order or instrument is made by the Government of India will be to see whether it is expressed in the name of the President and authenticated in such manner as may be prescribed by rules to be made by the President [Art. 77]. For the same reason, all contacts and assurance of proper made on behalf of the Government of India must be expressed to be made by the President and executed in such manner as the President may direct or authorise [Art. 299].
Again, though he may not be the ‘real’ head of the administration, all officers of the Union shall be his ‘subordinate’ [Art. 53(1)] and he shall have a right to be informed of the affairs of the Union. [Art. 78(b)]. The administrative power also includes the power to appoint and remove the high dignitaries of the State.
Under Indian Constitution, the President
shall have the power to appoint –
(i) The Prime Minister of India.
(ii) Other Ministers of the Union.
(iii) The Attorney – General for India.
(iv) The Comptroller and Auditor General of India.
(v) The judges of the Supreme Court.
(vi) The judges of the High Courts of the States.
(vii) The Governor of a State
(viii) A commission to investigate interference with water-supplies.
(ix) The Finance Commission.
(x) The Union Public Service Commission and joint Commissions for a group of States.
(xi) the Chief Election Commissioner and other members of the Election Commission
(xii) A Special Officer for the Schedule Castes and Tribes.
(xiii) A Commission to report on the administration of Scheduled Areas.
(xiv) A Commission to investigate into the condition of backward classes
(xv) A Commission on Official Language
(xvi) Special Officer for linguistic minorities.
In making some of the appointments, the President is required by the Constitution to consult persons other than his ministers as well. Thus, in appointing the Judges of the Supreme Court, the President shall consult the Chief Justice as he may deem necessary [Art. 124(2)]. These conditions will be referred to in the proper places, in connection with the different offices.
The President shall also have the power to remove
(i) his Ministers, individually;
(ii) the Attorney-General for India;
(iii) the Governor of a State;
(iv) the Chairman or a member of the Public Service Commission of the Union or of a State, on the report of the Supreme Court;
(v) a judge of the Supreme Court or of a High Court or the Election Commissioner, on an address of Parliament.
- Legislative Powers: With regard to the legislative powers of the President, the Constitution of India is largely different from the American Constitution. The separating line of executive and legislation is not as strong as in case of the U.S.A. In India, President is both Executive Head and also the part of legislature. The President has power to summon and prorogue Parliament. He can also dissolve the Lok Sabha before the expiry of five year term. The President also enjoys the power to summon a joint sitting of both House of Parliament in case of difference between the two. The President also addresses the opening session of a newly elected Parliament. He can also address it jointly in between. The President also enjoys the power to nominate certain member of the Parliament. In Rajya Sabha 12 members are nominated and 2 members from Anglo-Indian communities are nominated to the Lok Sabha if the community has not been adequately represented in his opinion in the House. Certain Bills do require a previous sanction of the President like money bill, the bill involving expenditure from the Consolidated Fund India, bill for the formation of a new state, bill relating to language, and the bill affecting the taxation of state. The bill passed by the parliament cannot become an Act before it has president’s assent. He can, after his comments, return the bill limited in case of money bill. Thus legislative powers of the Indian President may be summarized as follows:
- Summoning, Prorogation, Dissolution: Like the English Crown, our President shall have the power to summon or prorogue the Houses of Parliament and to dissolve the lower House. He shall also have the power to summon a joint sitting of both Houses of Parliament in case of a deadlock between them. [Arts. 85, 108].
- The Opening Address: The President shall address both Houses of Parliament assembled together, at the first session after each general election to the House of the People and at the commencement of the first session of each year, and “inform Parliament of the causes of its summons” [Art. 87]. The practice during the last four decades shows that the President’s Opening Address is being used for purposes similar to those for which the ‘Speech from the Throne’ is used in England viz. to announce the programme of the Cabinet for the session and to raise debate as to the political outlook and matters of general policy or administration. Each House is empowered by the Constitution to make rules for allotting time “for discussion of the matters referred to in such address and for the precedence of such discussion over other business of the House.”
- The Right to Address and to send Messages: Besides the right to address a joint sitting of both Houses at the commencement of the first session, the President shall also have the right to address either House or their joint sitting, at any time, and to require the attendance of members for this purpose [Art. 86(1)] This right is no doubt borrowed from the English Constitution, but there it is not exercised by the Crown except on ceremonial occasions.
Apart from the right to address, the Indian President shall have the right to send messages to either House of Parliament either in regard to any pending Bill or to any other matter, and the House must then consider the message “with all convenient despatch” [Art. 86(2)]. Since the time of George III, the English Crown has ceased to take any part in legislation or to influence it and messages are now sent only on formal matters. The American President, on the other hand, possesses the right to recommend legislative measures to Congress by messages thought Congress is not bound to accept them. The Indian President shall have the power to send messages not only on legislative matters but also ‘otherwise’. Since the head of the Indian Executive is represented in Parliament by his Ministers, the power given to the President to send message regarding legislation may appear to be superfluous, unless the President has the freedom to send message differing from the Ministerial policy, in which case again it will open a door for friction between the President and the Cabinet.
It is to be noted that during the first fifty-five years of the working of our Constitution, the President has not sent any message to Parliament nor addressed it on any occasion other than after each general election and at the opening of the first session each year.
- Nominating Members to the Houses: Though the main composition of the two Houses of Parliament is elective, either direct or indirect, the President has been given the power to nominate certain members to both the Houses upon the supposition that adequate representation of certain interests will not be possible through the competitive system of election. Thus, (i) In the Council of States, 12 members are to be nominated by the President from persons having special knowledge or practical experience of literature, science, art and social service [Art. 80(1)]. (ii) The President is also empowered to nominate not more than two members to the House of the People from the Anglo- Indian community, if he is of opinion that the Anglo-Indian community is not adequately represented in that House [Art. 331].
- Laying Reports, etc., before Parliament: The President is brought into contact with Parliament also through his power and study to cause certain reports and statements to be laid before Parliament, so that Parliament may have the opportunity of taking action upon them. Thus, it is the duty of the President to cause to be laid before Parliament – (a) the Annual Financial Statement (Budget) and the Supplementary Statement, if any; (b) the report of the Auditor-General relating to the accounts of the Government of India; (c) the recommendations made by the Finance Commission, together with an explanatory memorandum of the action taken thereon; (d) the report of the Union Public Service Commission, explaining the reasons where any advice of the Commission has not been accepted; (e) the report of the Special Officer for Scheduled Castes and Tribes; (f) the report of the Commission on Backward Classes; (g) the report of the Special Officer for Linguistic Minorities.
- Previous sanction to legislation: The Constitution requires the previous sanction or recommendation of the President for introducing legislation on some matters, though, of course, the Courts are debarred from invalidating any legislation on the ground that the previous sanction was not obtained, where the President has eventually assented to the legislation [Art. 255]. These matters are:
- Assent to legislation and Veto: (A) Veto over Union Legislation.