Legislative Powers of the President: Theory & Practice | Important Acts and Laws for Judiciary Exams PDF Download

Introduction

• In the Indian Constitution, the country follows the Parliamentary System of Government, where the executive and legislative branches are fused.
• The real executive power lies with the cabinet or ministry, which is accountable to the legislature, primarily the Lok Sabha.
• The President of India, as the nominal executive, holds a titular position with significant responsibilities across various domains.
• The Prime Minister, as the real executive, holds major responsibilities and commands over the Cabinet and the Lower House of the Parliament.
• This system, borrowed from Britain, is also practiced in countries like Japan, Germany, Australia, and New Zealand.
• In contrast, countries like the United States, Argentina, Chile, and Maldives follow the Presidential System of Government.
• In this system, the chief executive, the President, operates independently from the legislature in terms of tenure and policy decisions.
• The President in this system holds extensive powers akin to those of a Prime Minister in a Parliamentary System.
• The President appoints the cabinet members, who serve as policy advisors and are individually accountable to the President.
• The presidential systems differ significantly, particularly in the role of the 'President'.
  • In one system, the President holds a ceremonial or symbolic position.
  • In contrast, the other system grants the President a leadership role with substantial powers.

Legislative Powers of the President of India

• Role of the President: The President of India, as outlined in Article 52 of the Indian Constitution, serves as the head of state.
• Executive Power: The President holds executive power over the Union, acting as the Head of State (Article 53).
• Scope of Executive Power: Executive power extends to matters concerning Parliament and the implementation of rights and agreements (Article 73).
• Limitations: Although vested with executive powers, the President primarily acts on the advice of the Council of Ministers led by the Prime Minister.

Powers and Functions of the President

• The President, despite being a ceremonial head, holds numerous powers across executive, military, diplomatic, legislative, and judicial domains. These powers are exercised based on the advice of the Council of Ministers.
• Specifically focusing on the Legislative Powers of the President, these encompass a wide array of responsibilities ranging from convening the Parliament to the creation of ordinances.

Legislative Powers of the President

In essence, legislation involves the creation and approval of laws by local, state, and national legislative bodies. Within the Indian context, the President plays a crucial role in the Union Parliament, the primary legislative authority responsible for drafting, passing, and enforcing laws.

The President's involvement in legislative processes can be elucidated through:

Summoning, Prorogation, and Dissolution

• As per Article 85 of the Constitution, the President is empowered to convene, adjourn, and dissolve the Parliament, which includes calling for sessions, ending parliamentary meetings temporarily, and prematurely ending the Lok Sabha's term to initiate fresh general elections.
• However, there are constraints associated with this authority, outlined in Article 85(1), mandating that the President must summon the Parliament within six months of the previous session's last sitting.

Addressing the Houses of Parliament

• Constitutional Provision: According to Article 86 of the Constitution, the President is mandated to address either House of Parliament or a joint session at the beginning of every session. This speech mirrors the traditional address of the King of England and is meticulously composed by the Prime Minister.
• Content of the President's Address: The President's address outlines the government's objectives, approach, policies, and programs. Additionally, under Article 86(2), the President can communicate messages to either House regarding pending bills, which the House is obligated to deliberate upon promptly.
• Special Addresses: Pursuant to Article 87, the President delivers a special opening address to both Houses of Parliament following each general election for the House of the People. Moreover, at the commencement of each year's first session with both Houses assembled jointly, the President addresses the Parliament.
  • Oath and Speaker Protem: Members of Parliament take an oath before the President. The President appoints a "Speaker Protem" who oversees the election of the Speaker of the Lok Sabha.
• Amendments to the President's Address: Over time, the President's address has undergone modifications in the Rajya Sabha to reflect evolving concerns and contexts.
  • The Motion of Thanks was first amended in 1980, primarily concerning engineering defections.
  • In 1989, six amendments were made, encompassing issues like the Ram Janmabhoomi-Babri Masjid dispute and the India-Sri Lanka accord.

President's Address in Indian Parliament

• The President's address in the Indian Parliament is a significant annual event where the President outlines the government's policies and achievements.
• It is a constitutional obligation under Article 87 for the President to address both Houses at the beginning of each year's first session.

Amendments to the President's Address

• Opposition parties have historically used the President's address as a platform to criticize the government.
• In 2015, the CPI members Sitaram Yechury and P. Rajeeve moved an amendment over corruption and black money.
• In 2016, the Leader of the Opposition Ghulam Nabi Azad led an amendment regarding citizens' rights to contest in panchayat elections.
• These instances illustrate how the President's address can be utilized by the Opposition to challenge government policies.

Joint Sitting of the Houses of Parliament

• Article 108 empowers the President to convene a joint session of both Houses in the event of a deadlock over a bill or its amendments.
• The President presides over this joint sitting, emphasizing the importance of resolving legislative deadlocks.
• Notably, joint sessions cannot be called for bills related to Constitutional Amendments under Article 368 or Money Bills under Article 110.

Key Instances of Joint Sessions

• Dowry Prohibition Act- 1961
• Banking Service Commission Act-1978
• The Prevention of Terrorism Act (POTA)-2002
• Bill for Women Representation -2008 (Bill defunct)
• The Goods and Service Tax (GST) Bill- 2017

Nomination of Members to Rajya Sabha

According to Article 80(1), the President can nominate 12 members to the Rajya Sabha who excel in fields like Literature, Science, Art, and Social Service. Notable personalities such as Zakir Hussain, Khushwant Singh, and Sachin Tendulkar have been nominated in the past.

Controversial Nominations

• In 2019, controversy surrounded the nomination of former Chief Justice of India Ranjan Gogoi to the Rajya Sabha. Gogoi's nomination raised concerns about the separation of powers between the executive and judiciary, as he had recently presided over crucial cases involving the government.

Allegations and Criticisms

• Gogoi faced allegations of sexual harassment during his tenure as CJI, leading to skepticism about his nomination. Some viewed his nomination as a way to influence judicial decisions, drawing parallels to past controversial nominations under previous political regimes.

President's Nomination of Anglo-Indian Members

• Under Article 331, the President can nominate two members from the Anglo-Indian community, a religious, social, and linguistic minority, if they are underrepresented in the Lok Sabha.
• Historically, individuals like Frank Antony, Neil O'Brien, and George Baker have been nominated under this provision.
• In January 2020, the reserved seats for the Anglo-Indian community in the Parliament and State Legislatures were abolished by the 126th Constitutional Amendment Bill of 2019.

Laying Reports before the Parliament

• Various reports, such as the Annual Financial Statement (Budget), Auditor-General reports, UPSC annual report, Finance Commission reports, and reports on Linguistic Minorities and Backward Classes, are presented to the Parliament.

Previous Sanction of President on Certain Legislations

• Specific bills concerning matters like the formation of new states, Money Bills, or those requiring funds from the Consolidated Fund of India need prior approval from the President.
• Articles like 274(1) and 304 also require presidential sanction for matters related to taxation, distribution of funds to states, and imposing restrictions on trade in the public interest.

President's Assent to Legislation

• Process of Assent: When a bill is passed by both Houses of Parliament, the President's assent is required for it to become law. The President grants assent to bills except in certain cases like Money Bills.
• President's Power: Article 111 outlines the President's power to give assent, withhold assent, or send the bill for reconsideration. If Parliament makes no changes upon reconsideration, the President must assent to the bill.

Absolute Veto

• Description: The President can completely reject a bill, leading to its termination. For example, President Rajendra Prasad and President R. Venkataraman exercised absolute veto in specific cases.

Suspensive Veto

• Description: This type of veto can be overridden by a simple majority in Parliament. President A. P. J. Kalam's actions regarding the Office of Profit Bill in 2006 demonstrate the application of suspensive veto power.

Pocket Veto

• Description: The President can choose not to act on a bill, effectively delaying it indefinitely. This power has been used sparingly, such as in the case of the Indian Post Office (Amendment) Bill in 1987.

Governor's Reserve Power

• Description: Under Article 200, a Governor can reserve a bill for the President's consideration without being compelled to assent. This power acts as a form of "cold storage" for state legislation.

Making Regulations for the Union Territories

• According to Article 240, the President has the authority to create regulations for maintaining peace, progress, and good governance in Union territories such as the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu, and Puducherry (formerly Pondicherry) under special circumstances.
• Specifically for Pondicherry, the President can establish rules for peace, progress, and good governance only in instances where the assembly is dissolved or suspended.

Promulgation of Ordinance

• Although the power to make laws lies with the Parliament, the President is empowered to issue ordinances in exceptional situations, as outlined in Article 123 of the Constitution.
• When Parliament is not in session and immediate action is deemed necessary, the President can promulgate ordinances.
• It's essential to note that the President acts on the advice of the Council of Ministers when issuing ordinances, emphasizing that it's not a personal decision.
• These ordinances hold the same legal validity as Acts of Parliament and are valid for six months from the date of issuance. Within six weeks of the Parliament session's commencement, they must be presented before the Houses of Parliament.
• The criteria of 'urgent circumstances' for issuing ordinances can be reviewed judicially, allowing the courts to assess whether there was any malicious intent behind the decision.
• The Supreme Court has highlighted that the President's satisfaction alone in issuing ordinances is insufficient.

Presidential Ordinances in India

Presidential ordinances in India have often been a subject of discussion and debate. Here is a breakdown of key points regarding the validity and controversies surrounding these ordinances:

Validity of Ordinances

• The court rulings in cases like RK Garg v. UOI and AK Roy v. UOI have established the validity of presidential ordinances under specific circumstances.
• In RK Garg v. UOI, it was affirmed that the President has the authority to issue ordinances amending tax laws.
• Similarly, in AK Roy v. UOI, the National Security Ordinance of 1980, aimed at preventive detention, was deemed constitutionally sound.

Controversies Surrounding Ordinances

• Post-independence, presidential ordinances have often been mired in controversies, with the NDA government facing criticism for its frequent use of ordinances.
• Notable controversial ordinances include the Enemy Property (Amendment and Validation) Ordinance and the Central farm laws introduced amid widespread protests.
• The Central farm laws, comprising ordinances like The Farmers Produce Trade and Commerce (Promotion and Facilitation) Ordinance, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, stirred significant controversy.

Conclusion

• Despite being a titular head, the President of India holds crucial legislative powers and plays an integral role in the Union Parliament.
• The President's exercise of legislative powers has triggered debates and ramifications, often serving as a means to convey political messages and implement governmental policies.