A Comparative Study on the powers of the President of USA and India

Submitted by
Jyoti Sharma
UID- SF0116020

Faculty in Charge
Mr. Saheb Chowdhury

NATIONAL LAW UNIVERISTY AND JUDICIAL ACADEMY, ASSAM

GUWAHATI
 TABLE OF CONTENTS

1. Introduction
1.1 Literature Review
1.2 Scope and Objectives
1.3 Research Questions
1.4 Research Methodology
2. Powers of the President of India
2.1 Executive Power
2.2 Legislative Power
2.3 Judicial Power
2.4 Financial Power
2.5 Miscellaneous Power
2.5.1 Diplomatic Power
2.5.2 Military Power
2.5.3 Emergency Power

2.6 Ordinance Making Power

3. Powers of the President of USA

3.1 Executive Power
3.2 Legislative Power
3.3 Financial Power

4. Comparative Analysis

5. Conclusion

6. Bibliography
 Chapter-1

INTRODUCTION

A Constitution can be defined as a set of fundamental principles or established precedents

according to which a state or other organization is governed. A constitution of a country needs to
reinvent itself to keep pace with the global challenges and comparative analysis plays a vital role
in this respect.

The American political system, now over two hundred years old, a respectable age is apt to give
the United States a just claim to Government maturity. It is not something planned and created in
accordance with an ideology as totalitarian Governments are, but a continually changing
organism which has been matured by the unending process of trial, error and correction. Most of
the countries of the world which chose a federal form of government have drawn inspiration
from the constitution of the United States of America. The President of United States of America
is the head of the executive branch of the federal government of the U.S. He is vested with great
authority and is arguably the most powerful elected official in the world. America has adopted
the presidential form of democracy in which the executive president is directly elected by the
people who is powerful and not accountable to House of Congress. Whereas, India was under the
rule of British at the time of independence and this influenced us to adopt the democracy of
parliamentary system of common legal system. President of India is executive head of Indian
government who is indirectly elected by the legislators of central and states and not accountable
to the parliament.

Therefore this research paper is an attempt to do a comparative analysis on the powers and
functions of the president of USA and president of India.
1.1 Literature Review
1. Introduction to the Constitution of India, Dr. Durga Das Basu, LexisNexis
Butterworth Wadhwa, 2011
This book contains a systematic and logical exposition of the Constitution of India,
incorporating numerous amendments made by the Constitutional Amendments up to the
94th Constitutional Amendment Act. It also contains Fundamental Rights and Duties,
Directives, the three wings of the government-the legislative, the executive and the
judiciary. Apart from these the book provides a precise description about of powers of the
President of India.

2. Indian Polity, M Laxmikanth, McGraw Hill Education (India) Private Limited,

2017
This book highlights the various powers and functions of the president of India. This
book covers all dimensions like constitutional, non-constitutional, political and
administrative aspect of the subject.

3. Constitution of the World, M.V. Pylee, Universal Law Publishing Co.,

This book precisely describes about all the Constitutions of the World. It also highlights
about the constitution of America and elaborately describes about the various presidential
powers of the president of America like Executive power, Legislative and Judicial Power.

4. World Constitution, A Comparative Study, Vishnoo Bhagwan, Vidya Bhushan,

Sterling Publishers Private Limited, 2012.
This book is a monumental work by seasoned authors, and portrays the conceptual and
legal framework of parliamentary democracies like the U.K, Japan, Canada and Australia
as well as of a presidential democracy like the USA.
1.2 Scope and Objectives
The Main scope and objectives are:

 To do a comparative study on the powers of the president of USA and the powers of the
President of India
 To study in detail the various powers of the president of USA
 To study in detail the various powers of the president of India
 To make a comparative analysis on both the powers of the president

1.3 Research Questions

 What are the powers of the president of USA?

 What are the powers of the president of India?
 Compare the powers of the president of India and USA?

1.4 Research Methodology

1. Approach to Research
In this project doctrinal research was involved. Doctrinal Research is a research in which
secondary sources are used and materials are collected from libraries, archives, etc. Books,
journals, articles were used while making this project.

2. Type of Research
Explanatory type of research was used in this project because the project topic was not relatively
new and unheard of and also because various concepts were needed to be explained.

3. Sources of Data Collection

Secondary source of data collection was used which involves collection of data from books. No
surveys or case studies were conducted.
 Chapter-2

Powers of the President of India

The President is the head of the Indian State. He is the first citizen of India and acts as the
symbol of unity, integrity and solidarity of the nation. The powers enjoyed by the President of
India are:

2.1 Executive Power

The president is the head of the Union executive and all executive actions of the government of
India are formally taken in his name. He can make rules specifying the manner in which the
orders and other instruments made and executed in his name shall be authenticated. He can make
rules for more convenient transactions of business of the Union government, and for allocation
of the said business among the ministers. He appoints the prime minister and other ministers.
They hold office during his pleasure. He appoints the attorney general of India. The attorney
general holds office during the pleasure of the President. He appoints the comptroller and auditor
general of India, the chief election commissioner and other election commissioner, the chairman
and members of the Union Public Service Commission, the governor of states, the chairman and
members of finance commission and so on. He can seek any information relating to the
administration of affairs of the Union, and proposals for legislation from the prime minister. He
can require the Prime Minister to submit, for consideration of the council of ministers, any
matter on which a decision has been taken by a minister but which has not been considered by
the council. 1He can appoint a commission to investigate into the conditions of SCs, STs and
other backward classes. He can appoint inter-state council to promote Centre-State cooperation.
He directly administers the union territories through administrators appointed by him. He can
even declare any area as scheduled area and has power with respect to the administration of
scheduled areas and tribal areas.

2.2 Legislative Powers

1
Dr. Durga Das Basu, “Introduction to the Constitution of India”, 20 th ed, 2011, pp-179-191
The President is an integral part of parliament of India and enjoys many legislative powers. The
President can summon and prorogues the parliament and dissolve the Lok Sabha. He can also
summon joint sitting of both the houses of parliament, which is presided over by the speaker of
the Lok Sabha. He can also address the Parliament at the commencement of the first session after
each general election and the first session of each year. He can also send message to the House
of Parliament, whether with respect to a bill pending in the parliament or otherwise. He can
appoint any member of the Lok Sabha to preside over its proceedings when the offices of both
the speaker and the Deputy Speaker fall vacant. Similarly, he can also appoint any member of the
Rajya Sabha to preside over its proceedings when the offices of both the Chairman and the
Deputy Chairman fall vacant. He nominates 12 members of the Rajya Sabha from amongst
person having special knowledge or practical experience in literature, Science, art and social
service. He can nominate two members of the Lok Sabha from the Anglo-Indian Community. He
decides on questions as to disqualifications of members of the parliament, in consultation with
the Election Commission. His prior recommendation or permission is needed to introduce certain
types of bills in the parliament. For example, a bill involving expenditure from the Consolidated
Fund of India. When a bill is sent to the president after it has been passed by the parliament he
can: (i) give his assent to the bill, (ii) withhold his assent to the bill (iii) return the bill (if it is not
a money bill) for reconsideration of the Parliament. However if the bill is passed again by the
Parliament with or without amendments, the president has to give his assent to the bill. 2The
president can also make regulations for the peace, progress and good government of the
Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli and Daman and Diu.

2.3 Financial Power

The President also exercises some financial power. All money bills are introduced in the Lok
Sabha only with the prior approval of the President. The President has the control over
Contingency Fund of India. It enables the president to advance money for the purpose of meeting
unforeseen expenses. Annual budget and railway budget are introduced in the Lok Sabha on the
recommendation of the President. If the Government in the middle of the financial year feels that
more money is required than estimated in the annual budget, it can present supplementary
demands. Money bills are never returned for reconsiderations. The President appoints the

2
Dr.Durga Das Basu, “Introduction to the Constitution of India”, 20 th ed, 2011, pp-181-186
Finance Commission after every five years. It makes recommendations to the President on some
specific financial matters, especially the distribution of Central taxes between the Union and the
States. The President also receives the reports of the Comptroller and Auditor-General of India,
and has it laid in the parliament.

2.4 Judicial Power

The president appoints the chief justice and the judges of the Supreme Court and High Court. He
can seek advice from the Supreme Court on any question of law or fact. However the advice
tendered by the Supreme Court is not binding on the president. He can grant pardon, reprieve,
respite and remission of punishment or suspend, remit or commute the sentence of any person
convicted of any offence like: (i) In all cases where the punishment or sentence is by a court
martial (ii) In all cases where the punishment or sentence is for an offence against a union law
(iii) In all cases where the sentence is a sentence of death.

2.5 Miscellaneous Power

2.5.1 Diplomatic Power

The President of India also has diplomatic power. The international treaties and agreements are
negotiated and concluded on behalf of the president. However they are subject to the approval of
the parliament. He represents India in international forums and affairs and sends and receives
diplomats like ambassadors, high commissioners, and so on.

2.5.2 Military Power

The President is the supreme commander of the defence forces of India. In that capacity he
appoints the chief of the Army, the Navy and the Air force. He can declare war or conclude
peace, subject to the approval of the parliament.

2.5.3 Emergency Power

In addition to the normal powers, the constitution confers extraordinary power on the President
to deal with the following three types of emergency: (a) National Emergency (Article 352) (b)
President Rule (Article 356 & 365) (c) Financial Emergency (Article 360).

2.6 Ordinance Making Power

Article 123 of the constitution empowers the president to promulgate ordinances during the
recess of the parliament. These ordinances have the same force and effect as an act of parliament,
but are in the nature of temporary laws. The ordinance-making power is the most important
legislative power of the president. It has been vested in him to deal with urgent matters. But the
excessive power is subject to the following limitations:

 He can promulgate an ordinance only when both the Houses of Parliament are not in
session. An ordinance can also be issued when only one house is in session because a law
can be passed by both the houses and not by one House alone. An ordinance made when
both the houses are in session is void. Thus the power of the president to legislate by
ordinance is not a parallel power of legislation.
 He can make an ordinance only when he is satisfied that the circumstances exist that
render it necessary for him to take immediate action. In Cooper case, (1970) the Supreme
Court held that the President satisfaction can be questioned in a court on the ground of
malafide. This means that the decision of the President to issue an ordinance can be
questioned in a court on the ground that the President has prorogued one House or both
Houses of parliament deliberately with a view to promulgate an ordinance on a
controversial subject, so as to bypass the parliamentary decision and thereby
circumventing the authority of the Parliament. 3
 His ordinance making power is coextensive as regards all matter except duration, with the
law making powers of the parliament. This has two implications: (a) An ordinance can be
issued only on those subjects on which the parliament can make laws. (b) An ordinance is
subject to the same constitutional limitation as an act of parliament. Hence, an ordinance
cannot abridge or take away any of the fundamental rights.4
3
Cooper v. Union of India,(1970)
4
M. Laxmikanth, “Indian Polity”, 5th ed, PP-17.3-17.15
  Every ordinance issued by the president during the recess of parliament must be laid
before both the houses of parliament when it reassembles. If the ordinance is approved by
both the houses, it becomes an act. If the parliament takes no action at all, the ordinance
ceases to operate on the expiry of six weeks from the reassembly of parliament.

Thus an ordinance is like any other legislation, can be retrospective, that is, it may come into
force from a back date. It may modify or repeal any act of parliament or any other ordinance. It
can alter or amend a tax law also. However it cannot be issued to amend the constitution.
 Chapter-3

Powers of the President of USA

The Constitution of India vests almost exclusive executive powers in the hands of one individual
–the president of the United States of America. The office of the president has been organised on
the basis of presidential type of government. His powers is enormous, vast and he has been
described as the “foremost ruler in the world”. The Main sources of president’s powers are:
Constitution, Supreme Court’s decisions, Statutes of Congress Convention and Usage. The
President of USA enjoys extensive power which are discussed as follows:

3.1 Executive Powers

The President is the head of the national administration and all executive action of the Republic
is taken in his name. He is responsible for the enforcement of all federal laws and treaties with
foreign states throughout the country. He sees to the implementation of the decisions of courts
and enforces the constitution and laws of the country. He is responsible for the protection of the
Constitution, laws and property of the USA. Besides he enforces federal law and order
throughout USA, he is also responsible for guaranteeing to every state a Republican form of
government and protecting them against invasion and domestic violence.

The President is the commander-in chief of the Army and Navy of the United States and of the
militia of the several states, when called into the actual service of the United States; he may
require the opinion in writing of the principal officer in each of the executive department, upon
any subject relating to the duties of their respective offices and he also have the power to grant
reprieves and pardon for offences against the US, except in cases of impeachment. He appoints
military officers with the advice and consent of the Senate and can remove them at will.
Although the power to declare war vests in the congress yet the president can make war
unavoidable and necessary by his conduct in administration. 5

The President of USA also act as exponent of foreign relations. He formulates the foreign policy
of the United States. He appoints all diplomatic representatives of the USA to foreign states with

5
M.V Pylee, “Constitution of the World”, 4th ed, pp-2222-2223
the consent of the senate. He can negotiate treaties and agreements with foreign states in his
discretion, but all treaties with foreign states must be ratified by two-third majority of the Senate.
The President also makes a large number of appointments to the federal services. The power of
making appointments vests the most important and effective authority in the hands of the
president. It enables the president to command the allegiance of a huge number of federal
officers and secure their support for implementation of his policy. There are two categories of
federal services i.e. Superior Services and Inferior Services. Superior Services are appointed by
the President with the consent of the senate, and the members of the Inferior services are
appointed by the president alone, according to civil service rules.

3.2 Legislative Powers

With respect to the theory of separation of powers, the constitution intended the president and the
congress to be in separate apartments. One of the most important legislative power of the
President of USA is the Veto Power. In the Veto power all bills passed by the congress must be
referred to the president for his final approval. The President may give his assent to a bill
referred to him and the bill will become an act. He may also reserve the bill with him in which
case it becomes a law at the expiry of ten days without his signatures provided the congress is
still in session. The bill in such case is killed if the congress adjourns before the expiry of ten
days. This is known as pocket veto. He may also reject a bill and may return it to the house with
or without amendments. In such a case, the bill may be repassed by the congress by its two-third
majority in each house and then it will be obligatory on the part of the president to give his
assent. The Pocket Veto power is a very important legislative power in the hands of the
president. During the last ten days of the session of the congress, he possesses an absolute veto
power. A considerable number of last minute bills can thus be killed by the president if he is
against them simply by his inaction. Hence, Pocket Veto is considered absolute as the congress
does not have opportunity to override it. 6

As a legislative power the president may also exercise his power in the form of message. The
President may send messages proposing some legislative measures orally delivered to the House
or sent in the form of document. As the message comes from the highest functionary of the state,
these cannot be easily ignored by the Congress. The President’s message stirs the nation and it is
6
Vishnoo Bhagwan, Vidya Bhushan, “World Constitutions, A Comparative Study”, 9 th ed, pp-131-146
one great public document which is widely read and discussed. The famous ‘Munro Doctrine’
enunciated by President Munro was transmitted to the congress through a congress.

The President of USA has extensive patronage in his hands. He makes a large number of
appointments in the federal services. The senators and the representatives always want to win the
president’s favour in order to secure jobs for their supporters and friends. The president have
often made use of patronage and bargained with members of the congress to get their proposal
for legislation passed by the latter.

The president of USA also exercises his power of Appeal to Public opinion. The president is not
only the head of the republic but also the leader of the nation. Whenever he finds that the
congress is pitched against him, he can make direct appeal to the nation, and he may create
public opinion against his opponents in the congress.

One of the most vital power exercised by the president of USA is Delegated Legislation. He has
the power to make rules and regulations in the form of executive orders. In most cases, the
congress passes laws in general outlines. The details are left to be filled by the executive. The
rules and regulations thus made have the force of law. This is known as delegated legislation or
rule making power

3.3 Financial Powers

Although the control over federal finances has been vested in the Congress, yet in actual practice
the President directs and controls finance. It is under the direct supervision of the President, that
the budget is formulated by the Bureau of Budget. It is placed before the congress which can
amend it in any way. Very few members of the congress understand the technicalities involved in
the budget and it is difficult to amend it on account of its technicalities. The president is thus the
general manager of the financial affairs of the government.

3.4 Judicial Power

Like all other chief executive heads, the president of USA enjoys the power to grant pardon,
reprieve to all offenders convicted for the breach of federal laws. He cannot pardon a person who
has been convicted by impeachment, or for offences against the laws of the state. The president
appoints the judges of the Supreme Court with the consent of the senate. Evidently he enjoys
some judicial patronage.

Chapter-4
Comparative Analysis

There is a lot of difference between the American and the Indian Presidents. The president of
USA is the real executive while the president of India is more akin to the British Queen. The
USA president is both the head of the state and the government, while the Indian president is
only the head of the state. The USA president is elected directly while the president of India is
elected indirectly. The USA president holds office for four years and can seek re-election only
once, whereas the Indian president holds office for five years and can be re-elected for any
number of terms. The USA president is neither responsible to the legislature nor is part of it but
the Indian president is a part of the legislature. In the process of removal the Indian president can
be impeached by either House of parliament whereas in USA it is the upper house- the senate,
which has the sole power of trying impeachment. In India on the other hand, either House of
Parliament will have such power of impeachment provided the other houses has preferred the
changes.

It can be analysed that the Indian president occupies a position of far less strength than the one
occupied by the USA president. The president of USA is both head of the state and of the
government whereas the Indian president is head of the state but not of the government. Then the
Indian president has a lesser veto power than that held by the USA president. The USA president
possesses a double veto power. Then he has his ‘Pocket Veto’ on the other hand the Indian
president has no such ‘pocket veto’ power. The Indian president can dissolve the parliament
though on the advice of the Council of Ministers while the USA president does not possess the
power of dissolving the Congress.

In respect to the comparison of the powers of the president of India and USA is concerned it is
usually regarded that USA president has more power and authority with regards to the Indian
President but the powers of the president of USA can also be criticized on various grounds.
Under the American system, conflicts are bound to occur between the executive, legislature and
Judiciary and according to many modern American writers the absence of coordination between
the legislature and the executive is a source of weakness of the American political system. The
American president presides over a weak centre while the Indian President does so over a strong
one. In the USA the state occupy a place of vantage and the centre occupies a position definitely
of inferiority. In case of India on the other hand, the Centre has been made far stronger. The most
important aspect, the Indian President has the emergency powers to suspend the autonomy of the
states in times of national crisis and as powers are not enjoyed by the president of USA.

So it can be said that there is a lot of difference between the powers of the president of India and
the president of USA. Hence it can be said that Indian President is a figure head, a mere
constitutional ruler and a signing machine. He is an executive whereas USA president is “the
Executive”.
 Chapter-5

CONCLUSION

So, it can be concluded that there is a great deal of difference between the powers of the
president of USA and president of India. The Constitution of USA vests exclusive and enormous
powers in the hands of one individual –the president of the United States of America. The offices
of the American president has been organised on the basis of non-parliamentary or presidential
type of Government. But in the parliamentary democracies like India the president authority to
exercise power is limited. They are constitutional or nominal heads of their state. The Indian
President cannot go against the advice of the Council of Ministers which is responsible to the
parliament. In the USA, on the other hand, the president and his cabinet are not answerable to the
legislature. The constitution of America is very clear and unequivocal in giving all the executive
powers to the president. Indeed, the American Constitution has made the president a real
executive head rather than a titular one as in the case of Parliamentary Government like India.
 BIBLIOGRAPHY

1. Basu, Durga Das, “Introduction to the Constitution of India”, Lexis Nexis Butterworth
Wadhwa, 2011
2. Laxmikanth M. “Indian Polity”, McGrawHill Education(India), Private Limited, 2017
3. Pylee M.V, “Constitution of the World”, Universal Law Publishing Co.
4. Bhagwan Vishnoo, Bhushan Vidya, “World Constitution, A Comparative Study”,
Sterling Publisher Private Limited”, 2012.