Parliamentary Executive in India 243 4 President with ambitions could claim that they enjoy the will of the people of India more than the Council of Ministers, which is based on a simple majority and whose members individu, The President is elected for a fixed term of five ‘ears. They can resign office by writi their hand—addressed to the Vice-president and cater to the Speaker Ae the Pho of the People—or can be removed from office byimpeachment foe violation of the Constitution (Article $6). For impeachment, either House of Parliament can prefer « charge, which should be contained in a resolution. The resolution can be moved after at least 14 days’ notice. The notice of removing the President from the date on which the resolution is passed by the House, which has investigated the resolution (Article 61). So far, no President has either resigned office or been impeached. - Presidents of India Name Tomure ~ Dr Rajendra Prasad 26 Jan. 1950-13 May 1962 Dr Sarvapalli Radhakrishnan 13 May 1962-13 May 1967 Dr Zakir Hussain 13 May 1967-3 May 1969 (died in office) V. Venkat Giri 3 May 1969-20 July 1969 (acting) Justice Md Hidayatullah 20 July 1969-24 Aug. 1969 (acting) V.Venkat Giri 24 Aug. 1969-24 Aug. 1974 Fakhruddin Ali Ahmed ° 24 Aug. 1974-11 Feb. 1977 (died) B.D, Jatti ‘ 11 Feb. 1977-25 July 1977 * Bit ‘Neelam Sanjeeva Reddy 25 July 1977-25 July 1982 Giani Zail Singh 25 July 1982-25 July 1987 R. Venkatraman 25 July 1987-25 July 1992 Dr Shankar Dayal Sharma 25 July 1992-25 July 1997 Dr K.R. Narayanan 25 July 1997-25 July 2002 Dr A. P.J. Abdul Kalam “* 25 july 2002-25 July 2007 ‘Smt. Pratibha Patil B July 2007- Table 8.2 List of Past and Presidents of India244 Indian Government and Politics __POWERS.OF THE PRESIDENT > Article $3 of the Constitution of India vests al the executive power of the Indian Union in the Presdent of india The powers of the executive can be classified as administrative, diplomatic, military, judicial, and legislative powers.” The Constitution of India also provides for emergency Pm The ive powers ofthe President of India includes all the above powers, Cl A ministrative Powers - Execution of dhe laws and public c policies, day-to-day administration, and implementation of Pro- fFeparnes and projects are part of the administrative functions of the executive; Alt the national Tavis, the actions of the various departments/ministries 2 ‘and administratiorrof the Union Govern- mentare carried out in thename of the President, Article 77 states that, ‘All executive action of the Government of India shall be expressed to be taken in the name of fh such all the administrative powers exercised by the political and bureaucratic executive are in the name of the President. The gazetted officials of the Union Government are also appointed and dismissed in the name of the President (Articles 310 and 311). The President appoints important offcials, such as the judges of the Supreme Court and High Courts, election commissioners, the comptroller and auditor general of India, members ofthe Union Public Service Commission, and the attomey- general for India. The President has the power to dismiss the judges of the Supreme Court High Courts, and the Chief Election Commissioner on the address of Parliament; and the members and chairperson of the Union Public Service Commission on the report of the Supreme Court. The President also appoints various commissions, such as the Finance Commission, the Commission ‘on Official Language, and the Commission on Scheduled Areas. The President may also appoint an Inter-State Council for inquiring into and advising upon subjects and disputes between states, a state and the Union, and for better policy coordination and action (Article 263). The Finance Commission, !® Commission on Scheduled Areas, and Inter-State Council, which are appointed by the President, are important in the federal scheme in India. The President also appoints the Governor for a state. The matter of appointment of the Governor has not been with- out political controversy. Itis alleged that the political party that runs the government at the Cen tre generally pushes for the appointment of Governors who are partisan and act in its favour by undermining state governments that are run by non-partner parties. Constitutional experts and political analysts feel that the independence of the Governor from interference from the Union is ‘indispensable for a States autonomy’. This is required to maintain the overall sanctity ofthe parliamentary system in as much as the Governor is required to act on the aid and-advice of the Council of Ministers. The Supreme Court has also held that though the Governor holds offce during the pleasure of the President, which medhs the Union Government, ‘this office [of the Governor] is not subordinate or subservient to the Government of India’. ao The President is vested with all the executive powers of the Union; however, these powers are — _ notexercised directly by him. Executive powers are exercised in thename of the President. Under Article 77(3), the President is empowered to make rules for more convenient transaction of the business of the Govarnment of India and forthe allocation among ministries ofthe said business. rdingly, the President has made the Government of fidia (Transaction of Business) Rules, in which specifies the domain of the Council of Ministers and its various committees, and the Government of India (Allocation of Business) Rules, 1961, which specifies the subject matter of jurisdictio ious ministries/departments of the Government of India. Government Formation 7 i Appointment of the real executive, ie, the Prime Miniter and the members of the Council of Ministers, is an important function ofthe constitutional ort _ — eeParliamentary Executive in India 245 » Rominal head. The Constitution of India, under Article 75, provides that ‘The Prime Minister shall be appointed by the President and the other ministers shall be appointed by the President on the advice of the Prime Minister’. The power of the President to appoint the Prime Minister and the members of the Council of Ministers is broadly an administrative power of appointing. ‘The President invites the leader of the majority party to form the government. In the last two decades, a large number of regional and state-based political parties have contested elections. Votes are divided amongst the numerous parties, which have resulted in a division of seats. Due to a lack of clear-cut majority of seats by any one patty, a series of coali. tion governments have been formed at the centre after the late 1980s, Conventionally, the Prime Minister is appointed on the basis of election results from the cadre of the political party that has obtained the majority of seats in Parliament. When there are two main political parties, as in England,’* one or the other political party would obtain a majority of seats. However, when there are many political parties, and that too, with regional and localized vote bases, as has happened in India after the late 1980s, the chances of a single political party obtaining a clear majority re- drop considerably. Often, since no single political party is able to obtain a majority of seats, the appointment of the Prime Minister by the President becomes a politically sensitive and constitu- tionally challenging role. In such a scenario, the administrative power of government formation _ no longer remains a normal administrative exercise. | The President's choice for forming the government depends upon whether they believe that “the chosen political party would be able to seek the confidence of the House, i.e, prove major- ity support in the House. This -may result in the President inviting the leader of (a) the single largest party, or (b) the single largest pre-election coalition of parties, or (c) the single largest post-election coalition of parties, to form the government. The executive power of government formation vested with the President takes the form of a special administrative power when a coalition scenario arises. It involves a great deal of the discretionary powers of the President. The Council of Ministers is collectively responsible to the Lower House and can cease to exist only on losing the trust of the House. However, the minister individually holds office during the pleasure of the President (Article 75{2]). This means the President can remove a minister at their pleasure, though the President would normally seek the advice of the Prime Minister. Diplomatic Powers 5 The diplomatic power of the Union, which is taken in the name of the President, includes the conduct of foreign affairs and foreign relations. These include all matters that bring the Union into relations with any foreign country, appointing the Indian ambassador, consular and trade representatives to foreign countries," accrediting foreigh diplomats, and concluding treaties with other countries, subject to the parliamentary power of ratification and implementation. The i ts India in international affairs. The Constitution of India, under Article 53(2), vests the ‘supreme command of the Defence Forces of the Union’ in the President. The President is the head of the defence forces in India, which includes the army, the air force and the savy. The President has the power to declare war or Peace or the deployment of the defence force. However, the powers of the President are sub- Petia ceviain Tait 7B wides that the exercise of power as the supreme commander of the defence forces by the President shall be ‘regulated by law’. This méans that Parliament may, by law, regulate the dectaratiorrof war and peace and the deployment of defence forces, and the President may not have that discretion. Further, the ayerall scheme of the exercise of the powers of the President in the Constitution is based on the aid and advice of the Council of Ministers led by the Prime Minister. In terms of Article 112(3), expenditure on defence is not a246 Indian Government and Politics ‘i the Parliament, - , ture is subject to the vote of ; \ expendi weans that this expenditure is Oi \d of India except ete sacha shall be withdrawn from the eee aey ores ver appropriation made by law’. As such, Pasiament regain esarce commande of he force expenditure. De eae no means independent of legislative control. Judicial Powers nistrative powers, appoint the judges “—The President of India may, in the exercise of their creer e ar nde of the Supreme Court and the High Courts and, on the adi oe them, The institution of the ee ee and, dn oe vide 72 elves the preside convicted offenders. However, the Sonata st India, under / SE oF to suspend, remit, or com- x i The scope of such pardons, reprieves i ll cases of punishment or sentence by court martials, or sentences for offences sei ey i) relating toa matter covered under the executive power of the Union on a ‘cases of capital punishment. Possibly, the provision of such a power is to enable the President to exercise discretion to correct any judicial error or afford relief from any, unduly harsh pun- ishment rendered by the judiciary. ; The power of enon asthe effect of absolving the offender from all punishments and dis- qualifications and rescinds both conviction and sentence. Reprieve is a mere stay of the execution ofa sentence pending consideration for pardons, reprieves, etc. Respite is the award of a lesser sentence than the penalty prescribed due to certain circumstances of the punished, e.g., a physi- ‘cal or mental handicap, or a natural condition, such as the pregnancy of a women offender. Re- ‘mission reduces the amount of sentence without changing its character; for example, a sentence of rigorous imprisonment of ten years being reduced to five years. Suspension of sentence means delay or temporary postponement in carrying out thé sentence. Commitation means substitution of a higher form of punishment for a lighter one, eg, death sentence commuted to life imprison- ment, These powers of reprieve provided by Article 72 are discretionary powers of the President ‘and are in the nature of the prerogative of mercy. When any appeal for mercy or clemency lies with the President, itis entirely his/her discretion. In the exercise of the power of pardons, etc., the President is not sitting as a court of appeal and thése powers are independent of the judicial Process. However, based on various decisions of the Supreme Court and certain High Courts,” a limited scope of judicial review has been pronounced. ‘Fhe Court can interfere to ensure that the President considers all relevant materials before coming to a decision and the decision taken {s not irrelevant to the spirit of Article 72 ot ‘immoral, arbitrary, discriminatory, or mala fide’ ‘The President is Tot botind to hear a petitioner for mercy before the petition is rejected. If the President has rejected the earlier petition for mercy, a stay cannot be obtained by filing another petition. - ‘There is only limited judicial interference in the exerci ~ is no apparent legislative limitationyeither. Further, which the President would exercise these Ministers. However, head against the p ise of the power of pardons, etc. There the Constitutions silent as to the manner in Powers vis-i-vis the aid and advice of the Council of going by the overall spirit of the power of the constitutional or the nominal olitical or the real head, as envisaged by the Constitution, it is reasonable to assume thatthe President would exercise the powers under Article 72 on ‘thé aid and advice of . the Council of Ministers’, which can be based on specific assessments. Itis possible that there are circumstances in which the Ministry 6 Law and Justice or/and the Ministry of Home AMfairs feel that pardoning or commutin; ig the sentence would be right to subdue any public hostility to law and maintain social order. ‘ea Parliamentary Executive in India 247 : ‘One may wonder why the power of pardons should be vested in the President, when there is an independent judiciary to deal with offences and pronounce sentences after considering all relevant facts in the matter. The power of paxdon, or clemency, or executive mercy, is prevalent in various countries. In England, it rests with the sovereign i.e., the king/queen, and is known as the prerogative of mercy. Various states in the USA have Advisory Boards, which either independ- ently, or along with the governor of the state, exercise the power of clemency. In Sierra Leone, the Prime Minister, in consultation with a Committee of the Cabinet in cases of capital punishment exercises the power of mercy. In Nigeria, an Advisory Committee, including the attorney-general and a medical practitioner, tenders advice on mercy. Pardon or clemency is required, in certain cases, on social and ethical considerations such as social harmony or different physical or mental abilities. Further, there could be cases in which the entire facts of the case and material relevant to the matter might not have been placed before the court, There may be situations in which certain facts have been discovered, or certain events have occurred after the passing of the judgment, that require re-consideration of the case. It is generally agreed that the sentence of death is not mandatory to render justice. Since 1965, the death sentence for murder has been abolished in England. In contemporary times, imprison- ment is preferred over a death sentence as a matter of the protection of human rights. In India, the death sentence is not mandatory for rendering justice; however, it has not been abolished either. As’such, there may be cases in which a sentence of death is awarded by a court without considering the entire evidence and matters that are relevant either due to the absence of these facts at the time.” The power of pardon is also required to rectify decisions taken under such ci , Legislative P Like the British Crown, the Indian President is an integral part of Parliament, which includes the President of India anc ro houses of Parliament—the Lok. le) “Gui'the Rajya Sabha (the Counall of States) (Article 79). This arrangement makes the President i Read oF the legislative pi ir assent to a Bill, it cannot become an act. The ‘Constihution is Silent on whether the assent or refusal to a Bill is to be exerciséd on the advice ‘of the Council of Ministers. Article 53 vests all executive powers in the President, which are to be exercised on the aid and advice of the President, The President represents a convergence of executive and legislative powers. : ‘ower to Summon and Prorogue Parliament and to Dissol: the Lower House of Parliament The President enjoys Various powers in the legislative proce: ‘summon and prorogues Parliathent and dissolves the Lower House of Parliament (Article 85)/ The Houses of Parliament * mee “summons of the President, The entire duration of meetings of the Houses of Parlia- ment from their first sitting to the last sit ii e sim. Each session cart have various i ts prorogatiofl The Constitution provides that six months’ time will Trvene ast sifting in the previous session and the first sitting of the next ses- Sion, This means that a House of Parliament must be in recess for less than six months. The Presi- dont summons a House/the Houses of Parliament to fulfil this constitutional requirement. The requirement applies not only between two sessions of the same Parliament, but also for anew Parliament in the aftermath of fresh elections@Under Article 108(1), the President is empowered to meet in a jc incase there is disagreement between the summon both Houses of Parliament, two Houses over islatic President has the power to dissolve the Lol Sabha, which jneans to end the life of the outgoing Lok Sabha and announce fresh elections to constitute anew Lok Sabha. Generally, the Lok Sabha is dissolved after ‘completion of its five-year term. However, a248 Indian Government and Politics ‘ , 7 the President can dissolve it as soon as the government loses the confidence of the Lower House and the He fence against the COU ight to Address the Houses of Parliament and to Send Messages “The President hadthe right to-addressetther House of PatlianientoF both Houses assembled to- ther. The President can send messages to either House of Parliament with respect toa pending Bill or ‘otherwise’, and the concemed House shall-consider-any-matter-required by the message (Article 86). The Constitution is silent about the subject matter of the address ‘by the President. It “salto silent regarding the scope ofthe messages sent to either House of Parliament ‘otherwise’ ___ The purport of this provision is not very clear, as the Constitution, under Article 87, provides for a special address by the President to both Houses of Parliament assembled together at the com- ‘Mencement of the first session after each general election to Lok Sabha and at the commencement of the first session of each year. The opening address by the President after each general election and each year provides an outlook on general policy and administration of the government. It could also be used as an occasion to announce fresh policy initiatives and schemes.” The Presi- dent can deliver their message on this occasion. Ifit is assumed that the provisions under Article 86 are meant to enable the President to send messages not only with respect to Bills pending in Parliament, but also to initiate fresh legisla- tion, then we are assigning to the President the power of initiating laws and policies on any subject under the competence of Parliament. But this can lead to an anomalous situation. The President has been assigned the responsibility of giving assent to a Bill for enactment after both the Houses have recommended it. In a situation where the President sends a message asking for a Piece of legislation that is not ratified by Parliament, the very position of the President as the head of legislation and the head of the Executive would be shaken. On the other hand, the President is “epresented in Parliament through the ministers; any legislation could be initiated through them. A situation where the President seeks legislation independent of the Council of Ministers would be undesirable. aha and Rajya Sal The involvement of the President in various matters of Parliament includes ‘nominating members in the Lok Sabha and the Rajya Sabha. Members of the Lok Sabha and the Rajya Sabha are gener- ally elected. However, the Constitution provides for the nomination of a certain number of nem, bers by the President. The President nominates 12 members to the Rajya Sabha from the fields ofJiterature, science, art, an fice (Articles 80[1][a] and [3)). sident may also nominate not more than two me io-Indian community if they are of the opinion thattht is not otherwise adequately represented (Article 331). -—= OO —Ar ee = Laying of Reports Before the Houses of Parliament “The President has the power and responsibil following: - i@ Houses of Parliament the (a) The budg€t, or the annual financial statement (Article 112) (®) Audit reports prepared by the comptroller and auditor general of India on the Accounts of the Union (Article 151). (©) Recommendations of the Finance Commission, together with an explanatory memoran- dum as to the action taken thereon (Article 281). (d) Reports as ta the work done by the Union Public Service Commission along with a memo- randum explaining the cases, if any, in which the advice of the Commission has not been accepted, with reasons thereof (Article 323).Parliamentary Executive in India 249 (e) Reports of the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes upon the workings of the safeguards for the Scheduled Castes and the Scheduled Tribas under the Constitution, together with an explanatory memorandum as tO the action taken or proposed to be taken thereon (Articles 338 and 338A). (£) Report of the Commission to investigate the conditions of socially and educationally back- ward classes together with a memorandum explaining the action taken thereon (Article 340). : (g) Report of the Special Officer for linguistic minorities with respect to the safeguards pro- ____yided for linguistic minorities in-the Constitution (Article 350B). Prior Sanction/Recommendation for Introducing a Bill Sy The legislative powers of the President, as discussed above, reflect the involvement of the President in the formation, sittings, discussions, and dissolution of the Houses of Parliament, More substan- tive aspects of the legislative powers of the Presitfent relate to the domain of legislation. The Consti- tution requires previous sanction or recommendation of the President for initiating a Bill in Parliament on certajermatters. Tirany case, assent to any Bill is required for the enactment of legislation. der. Article 37 the Constitution requires that, for the formation of new states and altera- tion of areas, boundaries, or naines of existing states, a Bill can be introduced in-either House of Parliament on the prior recommendation of the President. The President is required to refer the proposal contained in the Bill to-the legislature of the affected state(s) for view's within the time. Br vending ie provisian enables the President to obtain the views of affected states, which is in of the spirit of federalism. The provisions of the Article facilitate the creation of new states, and the merger and re-organization of existing states, or parts thereof. ‘Article 31A provides that no law on the matters mentioned in the Article 31A(1) would be deemed to be void on the ground that it violates the rights under Articles 14 and 19. The mat- ters mentioned in Article 31 (1) include the acquisition of any estate or any rights therein by the State, amalgamation of two or more corporations in public interest, or to secure the proper man- agement and extinguishment or modification of the management lease or licence rights. Article BIC saves laws that give effect to the Directive Principles from being deemed to be void on the grounds of violation of rights under-Articles 14 and 19. The Constitution requires that in if laws under Articles 31A and 31€ are made by the Legislature of a state, the provisions of the Articles shall apply only if the law, having been reserved for the consideration of the President, has re- ceived his/her assent. The provisions of the Article provided safeguards for legislations on land reforms and nationalization. Pi ‘The government presents estimates of expenditure for the coming year in the budget to Par- liament. The entire expenditure is divided by the Constitution as ‘expenditure charged upon the Consolidated Fund of India’ and ‘other expenditure’ to be met from the Consolidated Fund of India, which are subject to the vote of Parliament. For meeting the requirements of other expendi- tures, or expenditi not charged, the government submits the estimates in the form of demands for grants to Parliament. Article 113(3) requires that no demand for a grant be made except on the recommendation of the President. Article 117(1) requires that a Money Bill—on subjects mentioned under Article 110—or ament ret0 I ‘except-on-the recommendation of We Boeadenicturtes 2 Bill that if brought into effect, would involve expenditure from the lidated Fund of India, shall be considered by either House of Parliament only if the Presi- dent has recommended it for consideration. As such, the prior recommendation of the President is required in case of the introduction of a Money Bill” or any Bill that involves expenditure from the Consolidated Fund of India.250 indian Government and Politics Article 274 requires that a bill affecting taxation in which states are interested shall be int duced or moved in either House of Parliament only on the prior recommendation of thé Presi dent: The same applies for changes in the meaning of the expression ‘agricultural income’ with respect to income tax or changes that affect the principle of sharing/distribution of money to States. This is to secure the federal fiscal spirit. Article 304 requires that a Bill in the State Legislature imposing such reasonable restrictions on freedom of trade, commerce, or intercourse with or within that state as may be required in Public interest, can be introduced or moved only with the previous sanction of the president. This Provision should be read with the provision of the Fundamental Right under Article 19(1)(g)—to Practice any profession, or to carry on any occupation, trade or business — and proviso (6) therein, Provides torseasonable restrictions on this right. Assent to Bills the President on a Bill is required for enactment, No Act of Parliament and:no provision in any such Act shall be invalid by only the reason that prior recommendation or previous sane. tion was not given, once the President gives assent to the Bill (Article 255). No Bill passed by Parliament can become an Act unless it receives the assent of the President, The culmination of the legislative procedure provided for in Articles 107 to 117 of the Constitu, tion is the assent of the President. Article 111 provides that when both Houses of Parliament By giving the President the power to either give assent to a Bill, or to withhold assent (except in case of a Money Bill), or return a Bill for reconsideration by the Houses, the ‘Constitution makes him/her the head of the legislative procedure. However, the assent of the President to a Bill also signifies his/her-involvement as the Executive in legislative procedure. The assent of the Presi- dent, as the head of the Executive, works as a check oft any hasty or ill-considered legislation. However, as against the principle of separation of powers and checks and balances, the President Presents a convergence of legislative and executive powers. When a Bill for the Purpose of amendment of the Constitution under Article 368 is passed by. the Houses and. Presented to the President for assent, they shall give their assent to the Bill. The ‘Constitution does not give the President option of withholding assent from a Bill for the amend- ‘ment of the Constitution. The Constitution gives options to the President for either declaring assent to, or withhold- ing assent from a Bill. Further, they can return a Bill to the Houses for reconsideration. If the President withholds assent from a Bill, it cannot become a law. This would be the exercise of the absolute veto power by the President. One instance of the use of absolute veto by the President relates to the Salary, Allowance, and Pension of Members of Parliament (Amendment) Bill, 1991. The Bill was passed by both Houses on the last day of its sitting, but no recommendation could be obtained from the President as required by Articles 110 and 117(1). When the Bill was presented to President Venkatraman, he withheld his assent. : ; If the President returns a Bill (other than a Money Bill) or any specified provision of it to the Houses for reconsideration and the Houses pass the same again, the President cannot withhold his assent. This means that the president can exercise a suspensive veto by returning a Bill forParliamentary Executive in India 252 reconsideration, which can be overridden by the Houses, who may pass the Bill again. The Consti- tution does not mention any time limit within which the President has to declare assent or withhold the same. In case of a Bill other than a Money Bill, the Constitution mentions that the President can retum the Bill to the Houses for reconsideration as soon as possible after the presentation of the Bill to them. This allows the President to keep the Bill in abeyance, and s/he can thus exercise the pocket veto. One example of the pocket veto is the non-declaration of either assent to or withholding of as- sent by President Zail Singh to the Indian Post Office (Amendment) Bill, 1986, which Proposed to put in place an intrusive law which would have enabled intercepting letters, communications and phones calls, and curtailing freedom of the Press, President Zail Singh kept the Bill in abeyance. Tt was only in December 1989, when a new government took over, that President R. Venkataraman retumed the Bill for the reconsideration of the Houses. It never came up again. The two examples _. suggest that an executive check, in the form of the assent of the President to a Bill, is required to ob- Viate any possibility ofthe passage of a hasty or ill-considered Bill by the Legislature. However, the President has no power t6 withhold assent to a Money Bill or a Constitutional Amendment bill. The President may give assent to a Bill, or withhold assent therefrom, or return the same for the reconsideration of the House(s). Article 111 does not specifically mention that the President, in exercise of her or his powers, will act on the aid and advice of the Council of Ministers. How- ever, a provision of Article-74, which requires the President to act on the ‘aid and advice of the Council of Ministers’, applies to this power of the President also. As such, with respect to the Government Bill, the power of the President does not seem to be discretionary. — ABill introduced by a member of the Council of Ministers is called a Government's Bill. A Bill introduced by any other Member of Parliament, including those belonging to the ruling party but not tothe Council of Ministers, is called a Private Members’ Bill. In all eventualities, a Govern- ment Bill will be initiated, introduced, and piloted by a Member of the Council of Ministers. Since the parliamentary executive has the support of the majority in the Lok Sabha, a Government's Bill passed by Parliament and. presented to the President, will necessarily have the backing of the Council of Ministers. In such a situation, the Counal of Ministers will not advise the President to either return the Bill for reconsideration or withhold assent therefrom. However, in case of a Private Members’ Bill presented to the President after having been passed by the Houses of Parliament, the Council of Ministers may advise the President to either return the Bill for re- consideration of the Houses, or withhold assent therefrom. It can be argued that even a Private * Members Bit! will notbe passed and presented to the President unless supported by the Govern. ment that has a majority in the Lok Sabha. Ifit is argued that a Bill has béen passed by the Houses of Parliament even though the Government has opposed it, it will amount to the defeat of the Government. As such, it appears that in normal situations, the possibility of returning a Bill for reconsideration or withholding assent therefrom by the President is minimal, However, there may be certain situations in which the president, acting on the advice of the Council of Ministers, may have to return the Bill for reconsideration of the Houses, or withhold _cssent therefrom, even after a Bil has been passed by both the Houses. One such situation may “arise when the Houses have passed a Private Member's Bill, even if it lacke the support of the Council of Ministers. It is possible that some members of the ruling party may have voted in favour of the Bill, which the Government discovers only after the Bill hee been passed.” It is also Possible that after the Bill has been passed by the Houses and presented to the President, an event or situation may have taken place that requires reconsideration or scrapping of the Bill. Finally, Face weil of Ministers, having a majority in the House, advises the President to either return the Bill for the reconsideration of the Houses or to withhold assent therefrom, it would be consti- futional on the part of the President to use the veto power" ee252 _Indian Government and Politics Scnutaninpana> Article 200 deals with the assent of the Governor after a Bill has been passed by the State Leg: islature. It inter alia provides that the Governor can reserve the Bill for the consideration of the President'The power of the Govemor to reserve a Bill for the consideration of the President appears to be a discretionary power. They can reserve any Bill, including a Money Bill, for the” consideration of the President he Governor, however, necessarily has to has reserve a Bill for the consideration of the President in one case. If, in the opinion of the Governor, a Bill would, if it became a la gate from the powers of the High Court as to endanger the position of High Court vis-a-vis the role Const ha gned-it-to-fill, they have to reserve-the Bill for the consideration of the President. As per Article 201, the President has the power to give assent, or withhold it {absolute veto), or direct the Governor to return the Bill, if it is nota Money Bill, to the State Legislature with a message for reconsideration. If the'State Legislature passes the Bill after reconsideration within a period of six months from the date of Teceipt, the Bill shall be presented again to the President for their consideration. However, unlike the compulsion to give assent, which the President has in case of a Bill presented after Parliament's reconsideration, the Constitution does not obligate the President to declare their assent to a Bill Presented to them after reconsideration of the State Legislature. Further, since no time limit for declaring their assent or withholding it has been mentioned, the President can also use the pocket veto. ‘The veto power of the President in India, who will act on the advice of the Union Council of Ministers, against a Bill passed by State Legislature, may be seen as an un-federal provision. The Practice of veto by a federal Executive against a Bill passed by a provincial legislature is not found in federations such as the USA or Australia. Generally, in federations, provincial legislatures en- joy independence in legislative functions. However, the Canadian federation provides for such a veto by the federal executive, the Governor-General, against a Bill passed by a Provincial Govern- ment. The Indian Constitution follows this pater This provision in the Indian Constitution is justified in view of the need for national integrity and unity, and to ensure that a State Legislature | does not pass a Bill that violates other provi of the Constitution. The Constitution pi F TE TAVOIWEMEATO! fr formation, sittings, dis- solution, and legislative procedures of Parliament. These include summoning the House(s) for sitting separately or jointly, proroguing the Houses, addressing the Houses, sending messages, nominating certain category of members, dissolving the Lok Sabha, giving prior sanction/recom- mendation for initiating a Bill in certain cases, giving assent or disalléwing a Bill passed by the Houses of Parliament, etc. The President can influence legislative procedures by applying some of these powers. For ex- ample, the President can send messages either in respect of a Bill pending in Parliament pr other- “wise, as under Article 86 or while returning a Bill for reconsideration of Houses, as under Article 111. The message can carry concerns of the President that need consideration of the Houses. So far, no President has sent any message under Article 86. Under Article 111, as mentioned before President Zail Singh exercised pocket veto on Indian Post Office (Amendment) Bill, 1986. This alfayed the concern with regard to freedom of press due to the proposed pil, Ape The President can dissolve the Lok Sabha to facilitate fresh elections an ecient new Lok Sabha. This simple consilint seep ey ee ei ° ape repletion itivity at certain times. The President can dissolve e rdi ofits noral life, or due to loss of trust of the House in the Council of Ministers. In a case where i Ik the Council of Ministers has lost the confidence of'the House much before the ie at 7 ae k Sabha has ended, the President may consider exploring the Possibility of an alterative govern, i |. However, suppose'the outgoing rs has rae i a aE the House: Is the President liable to act on such an advice given byParliamentary Executive in India 253 Council of Ministers that has lost the confidence of the House? The Constitution does not envis- age a situation of coalitions and political instability, and hence provides no guiding principles for the President. However, it would be constitutional for the President to ignore the advice of the outgoing Council of Ministers and explore the possibility of a new government and identify anew leader. The President might be required to identify a potential leader of a political party/coalition of parties in case there is no clear majority either in the beginning, or at any time during the life of the House. The discretion to identify and appoint such a leader was used by President Venka- traman in 1989, when V. P, Singh was appointed the Prime Minister after the general elections. Similarly, after the 1998 parliamentary elections there was no clear-cut majority. The President appointed A. B. Vajpayee as Prime Minister, as he was identified the leader of a coalition with majority support. Similarly, after the 2004 parliamentary elections, Manrhohan Singh was ap- pointed the Prime Minister, as he was identified as the leader of a coalition with majotity support. In The 2009 parliamentary elections too no single party could obtain the majority. However, the Congress emerged as the single largest party with the potential to form the government with a few coalition partners. Manmohan Singh was appointed the Prime Minister as the leader of a Congress-led coalition. Due to the lack of a single party with a majority of seats, the responsibil- ity of the President with respect to legislative and government formation aspects has increased in contemporary Indian politics. _ — 7 Power of the President to Promulgate-Ordinances- | Under Chapter III, Article 123, the Constitution specifically provides for the legislative powers of the President. It gives power to the President ‘to promulgate ordinances during recess of Parlia- ‘ment This means that the President is not merely involved in legislative procedure and matters as discussed above; they also have law-making powers when Parliament is not in session. The President can promulgate ordinances: (a) When either or both Houses of Parliament are not in session. o (b) When satisfied that the prevailing circumstances require them to take immediate action. There is no specific mention of the scope of ordinance-making. Being an act of legislation, -however, the ordinance-making power of the President is coterminous with Parliament's power to legislate. This would include the subjects of the Union and Concurrent lists of Schedule 7 of the Constitution, and other subjects on which Parliament has right to legislate. The President can make laws through ordinances on all the subjects on which the Indian Parliament can. The ordi- nance so promulgated by the President has the same force and effect as an Act of Parliament. Any or alll provision(s) of an ordinance shall be void if it contains provisions that Parliament would not be competent to make. Thus, an ordiniance is subject to the same judicial scrutiny as any law of Parliament. Under Article 13, the Constitution considers ordinances as laws. Article 13 for- bids the State to make any law, including ordinances, that takes away or abridges Fundamental Rights. Further, in their ordinance-making power, the President is bound by the same limitation to act on the advice of the Council of Ministers, as on other matters. However, the Court cannot enquire into the satisfaction of thé President of the necessity of ‘immediate action’ for promulgat- ing ordinances. Since the ofdinance-making power of the President is applied during the recess of the Par- liament, it is a temporary legislative power to meet immediate requirements. The President's ordinance-making power cannot be made a substitute for or used parallel to the functioning of the Legislature. The Constitution requires that an ordinance shall be laid before both Houses of Parliament and shall cease to exist:254 Indian Government and Politics (@) After six weeks from the reassembly of Parliament, . : (6) Upon passing of a resolution, if before the expiration of six weeks resolutions disapproving, it are passed by both Houses, or (© If withdrawn at any time by the President. Democratic constitutions rarely confer on the executive power bf legislation through ordinanc- es, Itis not found in Australia, Canada, England or the USA. The principle of separation of powers in the USA rules out any legislative power to the President. However, in India, the power of the President to promulgate ordinances may be justified on the ground of ‘immediate action’ when ‘one or both Houses are in recess. The genuineness of immediacy depends on the satisfaction of the President. The satisfaction of the President and the immediacy of ordinance may not be generally questioned in a court of law. During the Emergency, the Constitution 38th (Amendment) Act, 1975, inserted clause 4, which sought to make the satisfaction of the President final and not questionable in any court on any ground. During the Janata Government, the Constitution 44th (Amendment) Act, 1978, repealed this clause. Further, there is a requirement for the ratification of an ordinance by the legislature. An ordinance shall be laid before both Houses of Parliament and shall cease to exist after six weeks from the reassembly of Parliament, unless disapproved earlier by it. There may be circumstances that may render the promulgation of an ordinance to the ap- prehension of being mala fide. For example, the Council of Ministers may advise the President to prorogue a House of Parliament with the intent to bypass the Legislature and get an ordinance promulgated. This can be used as a tool to legislate on controversial matters or on politically motivated issues. A. G. Noorani, in his book Constitutional Questions in India mentions various Proposals of controversial ordinances. President Sanjiva Reddy refused to sign ordinances pro- Posed by the government of Charan Singh in the late 1970s on matters such as ‘financial help for candidates seeking elections’, ‘reservation of jobs for backward classe, and ‘long term contracts of commercial nature with foreign party’. Similarly, President Dr Shankar Dayal Sharma refused to sign ordinances on two controversial issues proposed by the government of Narasimha Rao. In 1996, the government proposed ordinances on ‘shortening the period of poll campaigns from three weeks to two’ and ‘extending reservation to Dalit Christians’. The President refused to promulgate ordinances on the subjects.* The issue of reservation of seats for women in the legislature is under discussion. Though there is a recognized need for reservation for women, there is no consensus amongst political parties re- garding the modality of the reservation; whether there should be quotas for different caste groups within the overall reservation. Suppose the government led by Manmohan Singh advised the President to promulgate an ordinance providing for reservation of seats for women in Parliament, The ordinance would amount to bypassing the Legislature. However, it may be noted that when a government is in the majority and not subject to the pull and pressures of coalition partners, it can achieve through acts of Parliament as much as it could achieve through an ordinance... * \\_ The Constitution makes ‘Emergent’ provisions under Articles 352 to 360. These provisions vest extraordinary powers in the President of India. The extraordinary powers vested in tite President relate to: (a) Proclamation of Emergency on the ground of threat to ‘the security of India or any part of the territory thereof’ due to ‘war or external aggression or armed rebellion’ (Article 352). (b) Proclamation declaring ‘failure of constitutional machinery in States’, i.e, a situation in which ‘the government of the State cannot be carried on in accordance with the provisions of this Constitution’ (Article 356).Parliamentary Executive in India 255 (©) Proclamation of Emergency on the ground of threat to ‘the financial stability or credit of India or of any part of the territory thereof’ (Article 360). National Emergency Article 352 provides that the President can declare an Emergency in a part or the whole of India if they are satisfied that the security of India or any part of India is threatened by war, external aggression, or armed rebellion.” So far, the President has invoked this article thrice: on 26 Octo- ber 1962 (National Emergency due to external aggression by the Chinese); on 3 December 1971 (National Emergency due to external aggression caused by the India-Pakistan war); and 25 June 1975 (National Emergency against internal disturbance). — Once a proclamation declaring ‘grave emergency’ has been issued under Article 352, serious changes in the normal federal set up and the provigions of Fundamental Rights occur. These changes are: : (a) When a proclamation of Emergency is in operation due to threat of war, external aggres- sion or armed rebellion, the exectitive power of the Union Government extends to giving directions to any state as to the manner in which the executive power of the state is to be exercised (Article 353{a]). In normal circumstances, the executive power of the Union ex- tends to the matters with respect to which Parliament has the power to make laws, which means the matters listed in the Union List (Article 73). The State Government is competent to exercise executive power over the matters under the State List (Article 162). However, during an Emergency, a unitary form prevails over the federal spirit of division of execu- tive powers between the Union and the states. This results in the extension of the executive powers of the Union over the states. () When a proclamation of Emergency is in operation due to a threat of war, external ag- gression, or armed rebellion, the legislative powers of Parliament extend to all subjects, whether in the Union List or not (Articles 250 and 353{b]). Normally, a State Governments entitled to legislate on subjects specifically enumerated in the State List, unless Parliament is authorized to do so either by the Council of States (Article 249) or by the consent of two or more states, for the said states (Article 252). As a result of proclamation of Emergency, the division of legislative powers between the,Union and the states is blurred, and the Union assumes the power to legislate on all matters concurrent with the state. (©) When a proclamation of Emergency is in operation due to a threat of war, external aggres- sion, or armed rebellion, provisions contained in Articles 268-279 can be modified or made applicable with exceptions by the President (Article 354). The pro¥isions relate to the distri- bution of revenues between the Union and the states, which include duties, taxes, and levies collected and shared between the Union and the states, or grants to the states by the Union. The provisions are part of federal fiscal distribution, or what may be called fiscal federalism, but are subject to modifications or exceptions during the proclamation of an Emergency. (d) When a proclamation of Emergency is in operation, it is the duty. of the Union to protect the state against external aggression and internal disturbance, and to ensure that the Gov- ‘ernment of every state is carried on in accordance with the provisions of the Constitution (Article 355). This means that the Union can assume omnipotence. () When a proclamation of Emergency is in operation due to a threat of war, external aggres- sion, or armed rebellion, enforcement of all the Fundamental Rights, except those under Articles 20 and 21, is suspended. However, the President by order neéds to declare that the enforcement of rights shall remain suspended (Article 359). Thus, the rights, which are fundamental during normal circumstances and need to be enforced by a court of law, cease to be so during an Emergency.a 256 _ Indian Government and Politics % i isi i threat of war or by external f) When a proclamation of Emergency is in operation due to a : ! : aggression, rights under Article 19 would not restrict the state from making ee ‘at ing executive action (Article 358). This means that rights under Article 19 can be violated, abridged, or suspended under extraordinary circumstances. However, the Constitution places \ .ctain limitations on the proclamation of an Emergency and its operation. For example, the President, by proclamation, can declare that a grave emer- gency exists. The test of the existence of a grave emergency or imminent danger is the satisfac- tion of the President. However, the Constitution requires that the President shall not declare an Emergency unless the decision of the Union Cabinet for the issue of such a proclamation has been ‘communicated to him (or her] in writing’. Further, every proclamation of Emergency needs to be laid before each House of Parliament for approval. If both the Houses do not approve the proclamation, it will cease to operate at the expiry of one month, if both the Houses are in ses- sion. In case the House of the People has been dissolved before a proclamation has been issued or is dissolved some time within the one month of proclamation or if the resolution has been passed by the Council of States but not by House of the People within 30 days of its first sitting after reconstitution, it will cease to operate at the expiry of 30 days from the date on which the House of the People first sits. If both the Houses of Parliament have approved the proclamation, it will operate for a period of six months from the date of passing of the second resolution, i. resolution passed by the second House. Continiiance of the situation of Emergency requires fresh approval of the Houses. = Failure of Constitutional Machinery in the State The executive and the legislative powers of the state and the Union have been assigned by the Constitution. Accordingly, the executive powers and the administration of a state are carried out by the Council of Ministers with the Chief Minister at the head to aid and advise the Governor. However, the state is required to carry on its government in accordance with the provisions of the Constitution. The Constitution, under Article 256, provides that the executive powers of every state should be exercised in such a manner as to ensure compliance with the laws made by Parliament and any existing laws that apply in that state. The Union can give such directions to the state as may appear to the Government of India to be necessary for the purpose of ensuring such compliance. Further, Article 257 provides that the executive powers of every state should be exercised in such a manner as not to impede or prejudice the exercise of the executive powers of the Union. The Union can give directions to a-state as considered necessary for this purpose. Under Article 355, it is the duty of the Union to protect states against external aggression and intemal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. Article 365 provides that if a state fails to comply with or give effect to any directions given by the Union in the exercise 6f its executive powers under any of the provisions of the Constitution, ‘it shall be lawful for the President to hold that a situa- tion has arisen in which the government of the state cannot be carried on in accordance with the - provisions of this Constitution’. Thus, the Constitution requires that the executive powers and the administration of a state should be carried out in such a.way as to fulfil the given conditions: (@) In compliance with the laws-made by Parliament and any existing laws, which apply in that state; : *' ®) Without impediment to or projudice against the exercise of the executive powers of the © Union; (©) Inaccordance with the provisions of the Constitution.Parliamentary Executive in India 257 If the President is satisfied, ‘on receipt of report from the Governor or otherwise’, that the ‘government of the state cannot be carried on in accordance with the provisions of this Constitu- tion’, it will amount to ‘failure of constitutional machinery in {the] States’ (Article 356). If the President, by proclamation, declares the failure of constitutional machinery in a state, the following changes take place: (@) The President can assume to themselves all or any of the functions of the State Government. (b) The President can assume to themselves all or any of the powers vested in or exercisable by the Governor or any body or authority in the state other than the Legislature of the state. = (©) The President may by proclamation declare that the powers of the Legislature of the state shall be exercisable by or under the authority of Parliament. (d) The President may make’ provisions for giving effect to the objects of the proclamation, including suspending the operations of any provision of the Constitution relating to any body or authority in the state. Unlike the requirement of written communication of the Union Cabinet for the declaration of national emergency under Article 356, the Constitution does not demand the same for the declaration of a failure of constitutional machinery in a state. The satisfaction of the President is sufficient for this purpose, but has to be based on the report of the Governor or ‘otherwise’. However, the Constitution places certain limitations on the exercise of this power by the Presi- dent. The President cannot suspend or assume any of the powers vested in or exercisable by a High Court. The proclamation is not immutable, and the President can revoke the same. Fur- ther, every proclamation declaring a failure of constitutional machinery in a state under this Article needs to be laid before each House of Parliament for approval. If both the Houses do “ not approve the proclamation, it will cease to operate at the expiry of two months, if both the Houses are in session. In case the House of the People has been dissolved before the proclama- tion has been issued, or is dissolved some time within the two months of proclamation, or if the resolution has been passed by the Council of States but not by the House of the People before the said period, the proclamation will cease to operate, unless approved within 30 days of the first sitting of the House of the People after its reconstitution. If both the Houses of Parliament . have approved the proclamation, it will operate for a period of six months from the date of its proclamation. Thus, President’ Rule can be imposed for a period of six months at a time, sub- ject to a maximum of three years. However, for continuance of the President's Rule beyond one yeat, the Constitution requires that a proclamation of Emergency should be in operation, and the Election Commfssion must certify difficultiesin holding general elections to the Legislative Assembly of the state, Itis thus clear that when an Emergency is invoked under Article 356, the spirit of a federal set up is compromised. In case of a state that comes under the Emergency or President's Rule, no ~ federal arrangement applies. The administration and executive powers of the state become part of that of the Union. The power of the State Legislature is exercised by or under the authority of Parliament. An elected government of the state is dismissed, and an elected State Assembly is dissolved prematurely, and a direct rule of the Union is imposed. The very basis of a federal set up, ie, division of powers between the Union and the state, is diluted. It is possible that the framers of the Constitution felt it necessary to make such provisions to ensure that regional, cul- tural, linguistic, religious, and other diversitiés do not come in the way of the state implementing or complying with the laws of Parliament or the executive orders of the Union aimed at social and economic reforms and national integration. However, the President's power to dismiss the government of a state on the basis of failure of constitutidhal machinery has not been without controversy.258 Indian Government and Politics During various phases of insurgency and civil strife, Punjab, Assam and states in the North East witnessed President's Rule in the 1980s and 1990s. However, it is difficult to imagine that political factors such as differences between the political parties ruling at the Centre and the state would not trigger possible misuse of the provision of Emergency under Article 356. It is generally alleged that the ruling party at the Centre tends to influence the report of the Governor, which would beconte the basis for the President to declare failure of constitutional machinery in the state. There are more than a hundred instances of the dismissals of elected governments of the states and imposition of President's Rule under Article 356. The satisfaction of the President of the failure of constitutional machinery in a state is to be based on the report of the concemed Governor, or otherwise. The Constitution does not specify the scope of term ‘otherwise’. In all fairness, this should bé based on the assessment of the Presi- dent of compliance by the state on directions of the Union government given under Articles 256-257 from time to time in the recent past. Article 365 requires such an assessment. This, in turn, would be on the basis of the advice of the Union Council of Ministers. Since a declaration of failure of constitutional machinery in a state may be attributed to the political motives of the rul- ing party at the Centre, the grounds af such declaration would not escape judicial scrutiny. The assessment of failure of constitutional machinery ina state by the President should not be based on extraneous or irrelevant considerations, i.e., considerations that do not relate to such failure, or the exercise of the power should not be mala fide.” In fact, judicial scrutiny may require that the material and grounds on which the proclamation for dismissal of the State Government has been issued should be specified. One case of thie imposition of President's Rule that came under national debate and judicial scrutiny deserves special mention. President R. Venkataraman had issued a proclamation im- posing President's Rule in Karnataka on 21 April 1989. The elected government of Chief Min- ister, S. R. Bommai of Karnataka was dismissed. In 1994, a nine-member bench of the Supreme Court considered the scope and application of Article 356. Justice Jeevan Reddy and Justice S. C. Agrawal held the action to be ‘malafide and unconstitutional’. Proclamations of President's Rules in Nagaland (1988) and Meghalaya (1991) were also struck down. In the famous S. R, Bommai v Union of India (11 March 1994) case, the Supreme Court pronounced that: (a) A Presidential proclamation‘dissolving’a’StateAssembly is subject to judicial review. (b) The burden to prove that relevant material existed to justify the proclamation lies with the Union Government, i.e., the basis and grounds on which President Rule has been imposed is open to judicial review, though the courts would not delve into the correctness of the material. * : (©) Till the proclamation is approved by both Houses of Parliament, the Legislative Assembly of the state should not be dissolved, ie,, it Gan-be kept in ‘suspended animation’. The idea is that the President should not take irreversible action by dissolving the Legislature.-If the Court holds the proclamation to be invalid and strikes it down, it has the power to restore the dismissed State Government and to revive the Assembly. A State Govérnment pursuing anti-secular politics is liable for judicial prosecution under the Article. _¢ : - Financial Emergency The Constitution provides for extraordinary powers to the President in cases of financial emer- gency. The provision for an Emergency on the grounds of threat to ‘the financial stability or credit of India or of any part of the territory thereof’, ie, ‘financial emergency’, is made in Article 360.1f the President is satisfied that a situation has arisen where the financial stability or credit of India or any part of India is threatened, they may declare a financial emergency in the whole ora part