Preseident of India ( Part -2)
President, Supreme Court and mercy matters : Bachhan Singh, Macchi Singh, Kehar Singh and Bhullar
The Supreme Court’s five-judge Constitution Bench judgment fn Bachan Singh v State of Punjab (1980)'is basic to the discourse on death penalty and mercy in India. It introduced the doctrine of rarest of rare crimes It said that judges must consider the aggravating features of the crime, as well as the mitigating factors of the criminal.
In the Machhi Singh v. State of Punjab, delivered by a three-Judge Bench in 1983, apex court sought to standardize crimes into five absolute categories, in order to identify the rarest of rare crime deserving death sentence. These five categories are manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder.
In Kehar Singh v Union of India (AIR 1989 SC 653), the Supreme Court asserted that “the question as to the area of the President’s power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.” Judicial review is part of the basic structure of the Constitution which even Parliament cannot interfere with.
Kehar Singh was convicted for murder and conspiracy for the assassination of Indira Gandhi, the then Prime Minister of India, and was sentenced to death. After his appeal to the Supreme Court was dismissed, his son presented a petition before the President of India for grant of pardon to his father under Article 72 which deals with the President’s power to grant pardon, suspension, remittance and commuting of sentences in certain cases. The President rejected the petition. After the rejection of the mercy petition, Kehar Singh’s son approached the Supreme .Court. A Bench of five judges considered the question whether the President can scrutinise evidence while exercising pardoning power. The apex court took a liberal view and held that the President, in the exercise of the pardon power vested in him under Article 72, could “scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court in regard to guilt of and sentence imposed on the accused.”However, as explained by the apex court, the President had no power to amend or modify or supersede the judicial record. The nature of the constitutional power exercised by the President in this regard is totally different from the judicial power. Without altering the judgment, the President could remove the stigma of guilt or remit the sentence imposed on him. Thus, the President can go into the merits, examine the record of evidence and determine whether a petitioner deserves mercy or not.
The apex court allowed Kehar Singh to appeal to the President once again for mercy. Kehar Singh’s appeal however was turned down by President Venkataramanan.
R.S. Pathak, then the Chief Justice of India, explained in the Kehar Singh case that “[p] ardoning power of President is [a]constitutional responsibility of great significance, to be exercised- when occasion arises in accordance with the discretion contemplated by context.” The CJ further explained the reason: “to any civilized society, there can be no attributes more important than life and personal liberty of its members recourse's provided to the judicial organ for its protection ... There is always a possibility of the fallibility of human judgment.” The Constitution has provided checks and balances for almost every conceivable situation. If the judiciary is fallible, the President has ^chance of making a correction under Article 72. And if the President’s exercise of his power was questionable, the higher judiciary may ask him to reconsider.
It paved the way for the three convicts sentenced to death in the Rajiv Gandhi assassination case, Santhan, Murugan, Perarivalan to secure a reprieve from the Madras High Court after the President dismissed their clemency petition in 2011( though the jurisdiction of the High Court is questionable). Similarly, in the same year, the Supreme Court admitted a plea by Devinder Pal Singh Bhullar’s wife. He had been sentenced to death for a 1993 terror attack in Delhi, and his petition for pardon had been rejected.
Bhullar case 2013
The apex court verdict delivered in April 2013 says that long delay by the President or the Governor in disposing of mercy petitions of persons convicted under anti-terror laws or similar statutes cannot be a ground for commutation of the death sentence. A two-judge bench gave this ruling while rejecting the plea of Khalistani terrorist and death-row convict Devinderpal Singh Bhullar
The Bench of Justices G. S. Singhvi and S. J. Mukhopadhaya said the Supreme Court’s earlier judgements holding that long delay might be one of the grounds for commutation of the death sentence could not be invoked in cases where a person was convicted for offences under the TADA or similar statutes.“Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes,” the Bench said. Giving example’s, the court said if murder was committed in an extremely brutal or dastardly manner, giving rise to intense and extreme indignation in the community, the court might be fully justified in awarding the death penalty. Bride-burning for the sake of money or greed was another example. ln Bhullar’s case, the Bench agreed that there was considerable delay in disposal of his mercy plea. Much of the delay could be attributed to the “unending spate of petitions” filed on behalf of the prisoner.
President and Governor on mercy (In the classroom)
Legislative Powers of President
According to Art.79, Parliament consists of the President and the two Houses of Parliament - the Council of States (Rajya Sabha) and the House of the People (Lok Sabha). Thus the President is the Head of executive as well as a constituent part of Parliament. President is made a component part of the Parliament as every Bill passed by the Houses of Parliament has to be reserved for the assent of the President under article 111.
Summon, Prorogue and Dissolve
President summons from time to time each House of Parliament, may from time to time prorogue the Houses or either House and dissolve the Lok Sabha (Art.85). Summon means to call the House into session. Prorogue means to terminate a session. Dissolve means to end the life of Lok Sabha and pave way for elections to constitute a new Lok Sabha which is mandatory every five years except during national emergency.
Address the Parliament and send messages
At the commencement of the first session after each general election to the Lok Sabha and at the commencement of the first session of each year( calendar year), the President addresses both Houses of Parliament assembled together and informs Parliament of the causes of its summons (Art.87). He has also the right to address either House of Parliament or both Houses assembled together and send messages to either House, whether with respect to a Bill then pending in Parliament or otherwise(Art.86). President has a message twice under this provision since the commencement of the Constitution
Articles 86 and 87 of the Constitution deal with the Address by the President. Article 86 confers a right on the President to address either House of Parliament or both Houses assembled together, and for that purpose require the attendance of members. However, since the commencement of the Constitution, the President has not so far addressed a, House or Houses together under this provision.
Article 87 deals with a Special Address by the President and provides that the President shall address both Houses of Parliament assembled together at the commencement of the first session after each general election to the Lok Sabha and at the commencement of the first session of each year and inform Parliament of the causes of its summons.
As article 87 makes it clear, the Address is to be to both Houses of Parliament assembled together. In other words, it means that if at the time of commencement of the first session of the year, the Lok Sabha has been dissolved and the Rajya Sabha has to meet, then the Rajya Sabha can have its session without the President’s Address, During the dissolution of the Lok Sabha in 1977 and 1991, the Rajya Sabha had its sessions in February 1977 and June 1991, respectively without the President's Address.
The President’s Address to both Houses of Parliament assembled together is a constitutional obligation for the President. It is a statement of the government policy of which, as the constitutional Head, he is the symbol. The President represents not only the executive authority but is a symbol of the Constitution.
The discussion on the Address is initiated by a Motion of Thanks moved by a member and seconded by another member and is put to vote.lt is adopted with or without amendments.
Appointment of Protem Speaker and Protem Chairman
The President appoints a pro tern Chairman of the Rajya Sabha (Art.91.1) and pro tern Speaker of the Lok Sabha ( Art.95.1) in certain circumstances. Protem Chairman of Rajya Sabha is appointed when the offices of the Chairman and the Deputy Chairman-are vacant. Protem Speaker is appointed in the new Lok Sabha to swear in the newly elected members.
Every Member of Parliament, before taking his seat in the House, is required to make and subscribe the oath or affirmation before the President or before the person appointed by him in that behalf. (Art.99)
The President nominates to the Rajya Sabha twelve persons having special knowledge and practical experience in respect of such matters as literature, science, art and social service. (Art.80) The President also nominates to the Lok Sabha not more than two members to represent the Anglo-Indian community, if he is of the opinion that the community is not adequately represented in the Lok Sabha.( Art.331).
Disqualification of members of Parliament
Grounds of disqualification of a Member of Parliament are given in Article 102. President is the authority to disqualify a member of parliament. Art. 103 says that the President decides on disqualification in consultation with the Election Commission. Such disqualification, according to Art. 102, can arise from the following
Broadly speaking, except for cases of defection and expulsion, President is the authority to disqualify a member of Parliament in consultation with the Election Commission(A,rt.l03)
Prior recommendation of the President for some Bills
The President's prior recommendation for introduction of a Bill is required for the following
It is clear that the above provisions centre around either of the two features as given below
The role given to the President is to preserve the federal character and ensure that fiscal system and responsibility is protected.
Joint session of Parliament
In the case of disagreement between the two Houses on a Bill (other than a Money Bill and Constitution Amendment Bill), the President summons a joint sitting of both Houses.(Art. 108.3) The President has, after consultation with the Chairman of the Rajya Sabha and the Speaker of the Lok Sabha made rules for the procedure with respect to joint sittings of the two Houses( Art.l 18.3)
The President has, after consultation with the Chairman of the Rajya Sabha and the Speaker of the Lok Sabha made rules regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the respective Houses. The later rules are, however, subject to any law made by Parliament Art.98)
Laying of statements, reports etc
The President causes to be laid before both Houses of Parliament in respect of every financial year
Reports of constitutional functionaries or bodies such as
Promulgation of Ordinances(Art.l23)
Ordinance is an executive law.
If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate Ordinances as the circumstances require. Like most actions, it is also exercised on the advice of the Union Council of Ministers. An Ordinance so promulgated by the President has the same force and effect as an Act of Parliament. Every Ordinance has to be laid before both Houses of Parliament and it ceases to operate at the expiration of six weeks from the reassembly of Parliament. It may be disapproved before the expiration of that period if both Houses pass a resolutions to that effect.
The President may issue an Ordinance to
Ordinance can not be promulgated to amend the Constitution.
Parliament in session can be adjourned sine die and prorogued if there is any urgent need to promulgate an ordinance. An ordinance can be promulgated containing the provisions of a Bill pending in the Parliament, when Parliament is not in session if the government feels urgent implementation is necessary. For example, there is a discussion(June 12, 2013) about the need to promulgate Food Security Ordinance even as the Bill for the same is awaiting passage in Parliament, having been introduced in 2011 December.(as mentioned above).
The Criminal Law (Amendment) Bill, 2013 was passed by the Parliament before its l month long recess began on March 22.lt replaced the Criminal Law (Amendment) Ordinance promulgated on February 3rd . If the Bill was not passed by March 22nd, it' would have lapsed. Given the urgency, it could not be referred to the Standing Committee of Parliament.
As stated above, unless the Criminal Law (Amendment) Bill, 2013 was passed within six weeks of the first sitting of Parliament (February 21), the ordinance would lapse. Given that the budget session broke for a month, starting March 22 for the recess, it gave the government only four and not six weeks to pass the Bill. If the ordinance lapsed, it could be re-promulgated, but only after the budget session ended in May and await the monsoon session of Parliament for its passage.
Ordinances promulgated by the Governor of a State under the President's Rule are also laid on the Table in the Parliament in the same manner as Ordinances promulgated by the President.
Rule by the ordinance is against the spirit of the parliamentary democracy. Therefore, there are safeguards built into the Constitution like
Constitutional experts and others have objected to the frequent resort to the power to issue an Ordinance by the Government, particularly on dates too close to a session of Parliament.
Ordinance raj refers to the practice of a government to avoid making legislation and instead rely on ordinances as legislative debate and vote may unsettle the party in power.Supreme Court objected to such repromulgation of ordinances without any genuine compulsions.
Of late, ordinances have become necessary for one additional reason: coalition government, lacking in majority in the Rajya Sabha is not in a position to have the Parliament pass the Bill. But international treaties may require that the Parliament enact legislation. In such circumstances, Government promulgates and re-prom u I gates the ordinances to make the necessary law. It should not be considered misuse of the powers.
In the Cooper's case (1970) and AK Roy case(1982), the Supreme Court upheld the power of courts to review the justification for the ordinance.
’Veto'( Latin for “ I forbid “) means that a party has the right to stop unilaterally a certain piece of legislation. President of India has veto powers with regard to a Bill passed by the Parliament. After a Bill has been passed by the two Houses of Parliament, it is presented to the President who has the option of assenting to it or exercising any of the following types of veto
A Constitution amendment Bill shall be assented to by the President 24th amendment Act 1971). The Money Bill can not be returned to the Parliament but assent can be withheld.
In 1986, the President of India, Gyani Zail Singh exercised pocket veto with regard to Indian Post OfTice(Amendment) Bill as in his opinion it was violative of Fundamental Rights in Art. 19 as the Bill authorized for intercepting the mail. President R.Venkataramanan in 1991 returned it to Rajya Sabha. In other words, the former was a pocket veto and the latter was a suspensive veto.The Bill survived the dissolutions of the Lok Sabha and was withdrawn about a decade later.
President Kalam in 2006 returned the Parliament (Prevention of Disqualification) Amendment Bill, 2006- popularly known as Office of Profit Bill to emphasise that the Bill needed improvement. It is also a suspensive veto.
President Venkataramanan withheld assent from the MPs (Salary, Allowances and Pensions) Bill 1991 as it was not introduced with his prior recommendation.
Thus, the Presidential veto of the above three kinds can be exercised in the following circumstances
In sum, there are substantive and procedural grounds for the President to exercise his veto. Generally veto powers are exercised on the advice of the Union Council of Ministers.
If the President is satisfied that a grave emergency exists whereby the security of India or any part of its territory is threatened, whether by war or external aggression or armed rebellion, ( Art.352) or there is a failure of constitutional machinery in a State ( Art.356) or a situation has arisen whereby the financial stability or credit of India or of any part of its territory is threatened, ( Art.360) he issues a Proclamation for the purpose. These Proclamations need parliamentary approval.
President and Caretaker Government
A Government that continues to be in office even after the dissolution of Lok Sabha, pending general elections, is a caretaker government. The situation may arise for the following reasons
it is requested to continue to be in power by the President tifl the new ministry is sworn in. For example, after the Government of Sri Atal Bihari Vajpayee lost majority in the LS in April 1999, it had to resign and was asked to continue as ‘care taker government’ by the President till such time that the elections to the 13th LS were held and a new government was formed.
Caretaker government is not a Constitutional concept but a political compulsion as there can not be a Constitutional vacuum because there is no provision for President’s rule at the centre. The options for the President are the following
The most appropriate option is to ask the incumbent ministry to continue to take care of the Government till elections produce a successor.
Caretaker governments like the Charan Singh Ministry in 1979 lasted 5 months; the Gujral ministry lasted 4 months in 1997-98 and the Vajpayee ministry lasted longer in 1999. An important question is whether crucial decisions regarding national security;, foreign policy ; international treaty obligations like patent laws; economic policy like FD1, support prices for farmers; transfers of senior officials etc could be taken by the care taker government. In fact, the Kargil tragedy exposed the nation to international hostility when the caretaker government was in power. There is, thus, the need to lay down norms governing the caretaker government. The President must evolve conventions in such political circumstances for governance of the country.
Recurrence of the minority governments; their inherent instability; and the relatively long periods for which caretaker governments are in power forces the ‘ceremonial Presidency’ to become a ‘working Presidency’. The conventions for the relationship between the President and the Council also have to be redefined in such a context.
President and Union Council of Ministers
India is a parliamentary form of democracy modeled after the British system where the Council of Ministers is the effective Head of the Government and the President (the British counterpart being the Monarch) is only the ceremonial Head of State without any real powers.
Art. 74 clearly states that the President of India shall follow the advice given by the Council of Ministers headed by the Prime Minister though he does have the power to return the advice for reconsideration once at the end of which it is mandatory for him to accept it.
There are however circumstances when the President need not go by the advice of the Council of Ministers like
Questions about the nature of Indian Presidency
Questions were raised as to the true nature of the Presidency immediately after the Constitution came into force. Babu Rajendra Prasad, the first President of India ' expressed his opinion that he would act independently of the Council of Ministers in two matters
Babu Rajendra Prasad raised the issue again while laying the foundation stone for Indian Law Institute building in I960 when he said that it was necessary to look into the Constitution to see which provisions required the President to act independently of the Council of Ministers.
In 1967, the issue came up on the eve of Presidential elections when regional parties came to power in many states . Opposition parties asserted that the President of India had independent powers and was not a titular head.
The same controversy was raised by
• President Zail Singh exercised pocket veto on Post Office Bill in 1986
• President KR Narayanan did not accept the advice of the Cabinet to impose President’s rule in Bihar in 1998
• President APJ Kalam returned the Office of Profit Bill to the Parliament for repassage in 2006( suspensive veto)
Apex court verdicts
In the U.N.R.Rao case ( 1972) Supreme Court concluded that, even after the dissolution of the Lok Sabha, the care taker Council of Ministers’ advice is binding on the President. It is in line with the apex court judgement in 1974 in the Shamsher Singh case that the President of India should acton the advice of the Council and Presidency is a ceremonial institution.
44th Constitution Amendment Act 1978
The Constitution (44th Amendment) Act 1978 made the following changes in the powers of the President so as to invest the institution with greater strength.
• Art. 74 has been amended to make it possible for the President to return the advice of the Council of Ministers once for reconsideration.
• Art.352 is amended to the effect that the written advice of the Union Cabinet (the word Cabinet is found only in Art.352 of the Constitution) is necessary for the President to proclaim the national Emergency. It is meant to ensure that the Prime Minister without the approval of the Cabinet does not recommend. Also, the written advice renders it open to judicial review.
Both the amendments strengthen the President of India and make governance more accountable.
Constitutional role of the President
President of India, the Head of the State , is a formal position. Real power rests with the Prime Minister heading the Council of Ministers - called Head"of the Government. Article 74 of the Indian Constit-utioo says that the President shall act on the aid and advice of the Council of Ministers .The role of the Head of State is to 'reign and not rule'- similar to the British Crown:
British Constitutional expert Walter Bagehot said that a "constitutional monarch" has the right to be consulted, to encourage, and to warn”.It applies to the President of India as well since the roles are almost identical.
The powers of the President are interpreted in different ways by different scholars- some say that he has only a ceremonial role while few others say that his role is substantive. However, the consensus opinion is that the President of India almost always acts on the aid and advice of the Council of Ministers except under the following circumstances.
In the first five cases mentioned above, it is a case of the president exercising powers in his 'discretion’. The last case leaves him with no discretion as the advice rendered by the EC is final and binding.
It may be said that the President of India is a ceremonial institution but assumes certain real powers under circumstances as mentioned above- hung parliament, dissolution of the Lok Sabha and veto powers. In the era of coalition Governments, the President becomes a 'working President’ as it throws up situations without a precedent and the President needs to set standards