Power and Functions of the Indian Constitution

‘Power’ has been defined as – “the legal right or authorization to act or not to act; an ability conferred on a person by law to alter, by an act of will, the rights, duties, liabilities and other relations, either of that person or another” [1] On the other hand, the term ‘Function’ has been defined as ‘the duty of the office’. [2]

At the outset, the researcher would like to restrict the scope of this project to the difference between the ‘powers’ that the Indian constitution gives the president and how the president actually ‘functions’ on the ground level scenario in light of the inherent difference between the two terms. The role of the president in India has been a topic which has been debated over for a very long time. Does the President of India act as only the titular head of the nation? Does he have any real powers or is he only a rubber stamp who cannot take any actions by his sole discretion. In this respect, Shri V.V. Giri, former Indian President has very strongly pointed out that the President is not a mere rubber stamp and he has discussed various views on the constitutional position of the President of India. These have been discussed at a later stage in the project by the researcher. However, the Courts in india have held that the Powers of the President in India are similar to those of the Crown in Ingland. [3]

The various provisions in the constitution that give talk about the powers and functions of the President of India are as follows

The power of the president to appoint people to the post of the Prime Minister(Article 75), the Attorney General of India (Article 76), Judges of the Supreme Court and of the High Courts in the States(Articles 124 and 227), the Comptroller and Auditor General of India(Article 148), the Governors fo States(Article 155), the Inter-State council for Co-ordination among the states(Article 263), the Finance Commission(Article 280), the chairman and members of the UPSC and a joint commission for a group of States(Article 316), the Chief election commissioner and other election ministers(Article 324), a Special officer for the Scheduled Castes and the Scheduled Tribes(Article 338), a Commission to look into the condition of the socially and economically backward classes(Article 340), a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes at the expiration of ten years from the commencement of the Constitution thereafter at the expiration of ten years from such commencement(Article 339).

Powers of the president to legislate –

He has the power to summon and prorogue Parliament and dissolve the House of People(Article 85).he may also address either one or both of the houses of the Parliament if they are assembled together and may send messages to either house of the parliament regarding a pending bill(Article 86). For the purpose of introduction into the parliament, certain bills for consideration, recommendation of the President is a necessary requirement. These are –

A bill that seeks to alter areas, boundaries or names of existing States(Article 3)

A financial bill(Article 117)

A bill concerning expenditure from the Consolidated Fund of India (Article 117)

A bill that seeks to impose any tax or duty in which states are interested (Article 274)

A bill restricting the freedom of trade, commerce etc.

Power to promulgate ordinances –

Article 123 [4] of the constitution empowers the President to pass an ordinance as the circumstances might require incase a situation arises where it is necessary for him to take immediate action. The president is the sole judge of whether there is a need to promulgate an ordinance or not. He is not required to justify such promulgation. [5] The power of the president to promulgate an ordinance is ordinance is co-extensive with the power of the parliament. [6] But this raises a very important question: is the satisfaction of the President justifiable? To answer this question, the Supreme Court held that it could not go into the question of credibility and level of correctness of the situation on which the satisfaction is based. But it is imperative that incase the instance of satisfaction of the president is malafide, it is not really a true case of such a satisfaction. It was held in the case of A.K. Roy vs. UoI [7] that the power to issue an ordinance is not an executive power of the president but a legislative power and that it fell under the definition of the word ‘law’ as under Article 21 of the constitution. Hence, it can be said that ‘satisfaction of the president’ as under Article 123 is justifiable if a limited manner.

Rule making powers of the President –

The President has widespread powers under the constitution to frame rules in various areas. Article 77 empowers the president to frame rules to simplify business transactions for the government of india. Article 118 empowers him to frame rules of procedure for joint sittings of the houses. He has more powers under the constitution with respect to the making of rules and regulations under various articles like Articles 101, 318, 320 etc.

The president has to place before the parliament, the following statements –

The Annual Financial Statement (Article 112)

A supplementary statement for additional grants (Article 115)

Reports of the Comptroller and Auditor General of India (Article 151)

Report of every recommendation made by the Finance Commission together with an explanatory mechanism as to the action taken thereon (Article 281)

Annual report of the UPSC along with a memorandum explaining if incase the advice of the commission was not accepted in any case and the reasons for the same (Article 323)

The report of the special offices for the Scheduled Castes and Scheduled Tribes (Article 338)

A report of the commission appointed to look into the conditions of the socially and educationally backward classes along with a memorandum explaining the action taken thereon (Article 340).

A bare reading of the provisions of the Indian constitution clearly shows that the president is the constitutional head of the country who acts as a neutral power. He has been given extraordinary powers in emergencies.

In article 74, the key expression is the word ‘functions’. The acts on the advice of the council of ministers while he ‘functions’ and the constitution in no place says that the president shall accept the advice of the Council of Ministers on any aspect and automatically follow it.

Article 263 gives the President, a power that should ideally be exercised by the president with his own discretion. The wording of the provision also clearly indicates the same. If the council that is appointed by the Council of Ministers and not by the President who in this case should act like a neutral power with his own discretion, then it would be unable to inspire confidence in the States and there might be a case where the States aren’t willing to accept the findings/decisions of such a Council alleging a case of bias against them. Also, the use of the term ‘appears’ to the President in Article 263 reiterates that it is the President’s impression that matters as the opinion of the Ministry and the President might not be the same in this regard.

Art. 274 makes it necessary for every bill, that affects taxation in a state, to be ‘recommended’ by the president. The phraseology of the article and the objective of the same suggests individual discretion of the president as it indicates personal consideration and inspires more confidence in the States with respect to such bills as the President acts as more of a ‘neutral power’ as compared to Ministry. The same is the case with the appointment of the members of the Finance Commission. This can be explained by a very simple example wherein the Council of Minister to the Prime Minister, which would majorly hail from the ruling party at the Centre, seeks to introduce a bill in the legislature amending the tax laws in a certain state where the state government might be under some other political party.

Article 75(2) [8] provides that the term of office of the Ministers is at the pleasure of the President. Commenting on the provision, Dr. B.R. Ambedkar has said –

‘Article 75(2) means that a minister will be liable to removal on two grounds. One ground on which he would be liable to dismissal under the provisions contained in clause (2) of Article 62 would be that he has lost the confidence of the house, and secondly, that his administration is not pure, because the word used here is pleasure. It would be perfectly open, under that particular clause of Article 62, for the president to call for the removal of a particular minister on the ground that he is guilty of corruption or bribery or maladministration, although that particular minister probably is a person who enjoyed the confidence of the house. I think the honourable member will realize that the tenure of a minister must be subject not merely to one condition but to two conditions and the two conditions are purity of administration and confidence of the house. The article makes provisions for both [Emphasis mine, throughout]’ [9]

The critical word here is ‘guilty’ but this has to be proved beyond reasonable doubt and independent inquiries must necessarily be conducted and for that to happen, termination of his/her tenancy of office and official residence is essential which will be a very drastic measure. Hence, no President should exercise such a power unless there is a national, not hue and cry from any party demanding such removal.

Military power of the president –

The president is the supreme commander of the Indian military. However, the power to legislate with respect to the military lies with the Parliament and hence, the President cannot, individually and independently exercise his military powers as vested in him.

Emergency Powers –

The Indian constitution gives the president the power to proclaim an emergency in certain situations (Arts. 352 – 354, 356 and 359). While such an emergency is underway, the powers of the union executive expand to a great extent and spread over areas which would otherwise have been out of bounds for them to act upon. The president, can assume to himself, all or any functions of the government of any State if he believes that such a situation has occurred in the state whereby it is impossible for the state machinery to work on its own in accordance with the provisions of the constitution. The powers of the president extend to such an extent that he can dismiss all fundamental rights of the citizens apart from those under Articles 20 and 21 for the duration in which the emergency applies. This is definitely a power of the President but its his function at the same time as well.

Pardoning Powers of the President –

Article 72 of the constitution empowers the President to grant pardon, reprieve, respite, or remission or to suspend, remit or commute the sentence of any person convicted of any offence [10] . This is only an executive powers of the president and does not fall within the ambit of his legislative powers as such a pardon isn’t an overruling of the decision of the court. [11] However, the apex court, in the case of State of Punjab vs. Joginder Singh [12] , has held that this is not a personal power of the president and he has to act on the advice given by the Council of Ministers. [13] It has also been held that the President has to take into consideration, the facts and circumstances of each case before granting a pardon. [14]

The problem that might occur incase the president is given full discretion is one which stems out of the constitution itself. The constitution, under Article 300 provides that the Government of India can be sued only in the name of the Union of India and not in the name of the President for any of the executive or legislative steps taken by him. [15] This may lead to a situation causing a constitutional breakdown in the nation as the President would end up with the power to take any step. Hence, he should be bound by the advice rendered to him by the Council of Ministers. This has also been emphasized by Dr. B.R. Ambedkar, the principal architect of the constitution in a dialogue with Dr. Rajendra Prasad. In the words of Dr. Ambedkar,

“If the President does not accept the advice of the existing ministry, he shall have to find another body of ministers to advice him. He would never be able to act independently of the ministers [emphasis added]”

Conclusion

The researcher would like to conclude by saying that the president of India, the constitutional head of the nation, acts on the basis of the advice given by the Council of Ministers but he does not have to abide by it all the time. However, he has the power to use his personal discretion in certain cases where the advice of the Council might be taken by the President but it shall not be binding on the president. This has been allowed so to keep a check on the steps taken by the president as absolute power in the hands of the president will make the Republic of India slowly transform into a nation under the rule of a dictator even though there is no real danger of the Indian president ever becoming an autocrat as he can be impeached and removed if he violates the constitution at any point of time. At the same time, the constitution also gives powers to the president so as to keep a check on the legislative organs by giving him powers such as that to dissolve ministries and to ask the prime minister to step down from as there is a great danger that the Prime Minister with a docile majority could convert the country into a dictatorship incase the president is just a figurative head without any powers of his own.

Hence, the president acts as the ‘neutral power’ so as to protect the nation in times of emergencies and to harmonise the inter-state and inter-union and State relations. In the current situation in India, where there is no single party at the central as well as the state levels. He plays an active and important role in the political life of the country in order to preserve, protect and defend the constitution and the law.

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