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The President
How the President is elected, who can stand, how the office is vacated and filled, impeachment, the President's executive and legislative powers, the veto, ordinances, the pardoning power and the President's real position under Article 74.
Chapter I of Part V (Articles 52 to 78) sets up the Union executive. Article 52 says there shall be a President of India, and Article 53 vests the executive power of the Union in the President, to be exercised directly or through subordinate officers; the supreme command of the Defence Forces also vests in the President. Yet India chose a parliamentary system on the British pattern, in which the head of state is the formal source of authority while ministers answerable to the Lok Sabha actually govern. This part explains how the President is chosen and removed, and how far the President's wide powers are really the President's own.
The President is elected indirectly, by an electoral college (Article 54) made up of the elected members of both Houses of Parliament and the elected members of the Legislative Assemblies of the States. The 70th Amendment (1992) added the elected members of the Assemblies of the National Capital Territory of Delhi and the Union Territory of Puducherry. Nominated members of Parliament and members of the State Legislative Councils have no vote. Including the State Assemblies makes the President a representative of the States as well as of the Union, while an indirect election avoids giving the head of state a popular mandate that could rival the ministers who answer to the Lok Sabha. Voting follows proportional representation by means of the single transferable vote, by secret ballot (Article 55(3)). Disputes about the election are decided only by the Supreme Court (Article 71).
Article 55 requires two kinds of balance in the value of votes. Among the States there must be uniformity: the value of an MLA's vote is the State's population divided by the number of elected members of its Assembly, divided again by 1,000. Between the States as a whole and the Union there must be parity: the total value of all MLAs' votes is divided by the total number of elected members of Parliament to give the value of one MP's vote. So an MLA from a populous State such as Uttar Pradesh casts a heavier vote than one from Sikkim, yet Parliament as a whole weighs about as much as all the Assemblies together. Since the 84th Amendment (2001), the population used is that of the 1971 census until the figures of the first census taken after 2026 are published. Under the Presidential and Vice-Presidential Elections Act, 1952, a nomination needs at least 50 electors as proposers and 50 as seconders.
Article 58 lays down who can stand: a citizen of India, at least 35 years old, qualified for election to the Lok Sabha, and not holding any office of profit under the Government of India, a State government or a local authority. The offices of President, Vice-President, Governor and Union or State minister are not treated as offices of profit for this purpose. Under Article 59 the President cannot be a member of Parliament or of a State legislature; a member who is elected vacates the seat on taking office. Under Article 60 the oath is taken before the Chief Justice of India and the President swears to preserve, protect and defend the Constitution and the law. The term is five years from the date of entering office (Article 56). The President may resign by writing to the Vice-President. Article 57 allows re-election; Rajendra Prasad is the only President to have been re-elected.
The only way to remove a President before the term ends is impeachment under Article 61, and the only ground is 'violation of the Constitution'. The charge can begin in either House. The resolution can be moved only after at least 14 days' written notice signed by not less than one-fourth of the total number of members of that House, and it must be passed by not less than two-thirds of the House's total membership. The other House then investigates the charge, and the President has the right to appear and to be represented. If that House also resolves, by two-thirds of its total membership, that the charge is sustained, the President stands removed from the date of that resolution. Elected members of State Assemblies, who help elect the President, take no part, while nominated members of Parliament, who have no vote in the election, do take part. No President of India has been impeached so far.
When the office falls vacant, Article 62 sets the timetable. An election to fill a vacancy caused by the end of the term must be completed before the term expires. A vacancy caused by death, resignation, removal or otherwise must be filled within six months, and the person elected serves a full five-year term from the date of entering office. Meanwhile, under Article 65, the Vice-President acts as President, with the President's powers and emoluments. If both offices are vacant, the President (Discharge of Functions) Act, 1969 provides that the Chief Justice of India discharges the President's functions. This happened in 1969, when Chief Justice M. Hidayatullah acted as President after President Zakir Husain's death and Vice-President V.V. Giri's resignation to contest the presidential election.
On paper the President's powers are wide. All executive action of the Government of India is expressed to be taken in the President's name (Article 77). The President appoints the Prime Minister and, on the Prime Minister's advice, the other ministers, and also appoints the Attorney General, the Comptroller and Auditor-General, the Election Commissioners, Governors, judges of the Supreme Court and High Courts, and the Finance Commission. The President summons and prorogues the Houses of Parliament and can dissolve the Lok Sabha (Article 85), addresses both Houses at the first session after each general election and at the first session of each year (Article 87), and nominates 12 members to the Rajya Sabha. Some bills, such as Money Bills and bills to form new States, need the President's prior recommendation.
When a bill passed by both Houses is presented, Article 111 gives the President three choices: give assent, withhold assent, or, for a bill other than a Money Bill, return it with a message asking the Houses to reconsider it. If the Houses pass it again, the President must assent. Withholding assent is called an absolute veto: the bill does not become law. Returning a bill is a suspensive veto, which Parliament can override by passing the bill again by the ordinary majority. Because the Constitution sets no time limit for the President's decision on a Union bill, the President can also keep a bill pending, which is called a pocket veto; President Zail Singh did this with the Indian Post Office (Amendment) Bill, 1986. A Money Bill, which is introduced with the President's recommendation, cannot be returned, and since the 24th Amendment (1971) the President must assent to a Constitution Amendment Bill. For a State bill reserved by the Governor, Article 201 lets the President assent, withhold assent or have a non-money bill returned, and the President is not bound to assent even if the State legislature passes it again.
| Type | What the President does | Can Parliament override it? | In India? |
|---|---|---|---|
| Absolute veto | Withholds assent; the bill does not become law | No | Yes |
| Suspensive veto | Returns a non-Money Bill for reconsideration | Yes, by passing it again by the ordinary majority | Yes |
| Pocket veto | Takes no decision; no time limit is fixed for Union bills | No | Yes |
| Qualified veto | Returns a bill that can be passed again only by a higher majority | Yes, by a special majority | No |
Article 123 gives the executive a power to make law. At any time except when both Houses are in session, if the President is satisfied that circumstances make immediate action necessary, the President may promulgate an ordinance. It has the same force as an Act of Parliament and the same limits: it can deal only with matters on which Parliament can legislate, and it cannot amend the Constitution. It must be laid before both Houses and ceases to operate six weeks after they reassemble, or earlier if both Houses pass resolutions disapproving it. Since the gap between two sessions cannot exceed six months, an ordinance can survive at most about six months and six weeks without Parliament's approval. The 38th Amendment (1975) made the President's satisfaction final; the 44th Amendment (1978) removed that clause. In D.C. Wadhwa v. State of Bihar (1987) the Supreme Court held that repeatedly re-promulgating ordinances without placing them before the legislature is a fraud on the Constitution, and in Krishna Kumar Singh v. State of Bihar (2017) it held that the satisfaction behind an ordinance is open to judicial review.
Article 72 gives the President power to grant a pardon and related relief in three classes of case: where the punishment is by a court-martial, where the offence is against a law on a matter to which the Union's executive power extends, and in every case of a death sentence. The power takes five forms. A pardon removes both the sentence and the conviction; a commutation substitutes a lighter form of punishment; a remission reduces the period of a sentence without changing its nature; a respite awards a lighter sentence because of a special fact; and a reprieve stays the execution of a sentence for a time. The Governor's power under Article 161 covers offences against laws on State matters and has no court-martial clause, although Article 72(3) keeps the Governor's power to suspend, remit or commute a death sentence. The President exercises this power on the advice of the Council of Ministers (Maru Ram v. Union of India, 1980); the convict has no right to an oral hearing (Kehar Singh v. Union of India); and the decision is open to limited judicial review, for example for mala fides or irrelevant considerations (Epuru Sudhakar, 2006).
| Form | Effect | Example |
|---|---|---|
| Pardon | Removes both the sentence and the conviction | The convict is freed of all punishment and disqualification |
| Commutation | Substitutes a lighter form of punishment | Death sentence changed to rigorous imprisonment |
| Remission | Reduces the period without changing the nature | Two years' rigorous imprisonment reduced to one year's rigorous imprisonment |
| Respite | Awards a lesser sentence because of a special fact | Pregnancy or physical disability of the convict |
| Reprieve | Stays the execution of a sentence for a time | Execution of a death sentence stayed while a mercy petition is pending |
Article 74(1) provides a Council of Ministers with the Prime Minister at its head to aid and advise the President. The 42nd Amendment (1976) made the advice binding, and the 44th Amendment (1978) added that the President may require the Council to reconsider its advice once, but must act on the advice given after reconsideration. Under Article 74(2) courts cannot inquire whether any, and if so what, advice was tendered. In Samsher Singh v. State of Punjab (1974) the Supreme Court held that the President and the Governors are constitutional heads who act on ministerial advice, save in a few exceptional situations. Those situations leave a small, situational discretion: choosing a Prime Minister when no party or coalition has a clear majority in the Lok Sabha, dealing with a ministry that has lost the confidence of the Lok Sabha, the pocket veto, and the right under Article 78 to be informed by the Prime Minister.
Exam traps
- Nominated members of Parliament do not vote in the President's election but do take part in impeachment; elected MLAs vote in the election but take no part in impeachment.
- Members of State Legislative Councils have no vote in the presidential election; elected members of the Delhi and Puducherry Assemblies do (70th Amendment, 1992).
- Impeachment needs two-thirds of the total membership of each House, not two-thirds of those present and voting, and its only ground is 'violation of the Constitution'.
- The President takes the oath before the Chief Justice of India but resigns by writing to the Vice-President.
- Disputes about the presidential election are decided by the Supreme Court (Article 71), not by the Election Commission.
- An ordinance can be issued when even one House is not in session, and it lapses six weeks after Parliament reassembles, not six months.
- Only the President can pardon a court-martial sentence; Article 72 covers every death sentence.
- A Money Bill cannot be returned for reconsideration, and the President must assent to a Constitution Amendment Bill (24th Amendment).
Recap
- Article 53: executive power of the Union vested in the President, who is a constitutional head in a parliamentary system.
- Indirect election by the elected MPs and the elected MLAs of the States, Delhi and Puducherry; proportional representation by the single transferable vote; disputes to the Supreme Court.
- Value of votes: uniformity among States, parity with the Union; 1971 census until the first census after 2026.
- Qualifications: citizen, 35, qualified for the Lok Sabha, no office of profit; oath before the CJI; five-year term; resignation to the Vice-President.
- Impeachment for violation of the Constitution: two-thirds of the total membership of each House; nominated MPs take part.
- Vacancy filled within six months; Vice-President acts, then the CJI (1969 Act).
- Veto: absolute, suspensive and pocket, but no qualified veto; ordinances under Article 123 lapse six weeks after reassembly.
- Pardon under Article 72 on ministerial advice; Article 74 makes advice binding after one reconsideration (42nd and 44th Amendments).
Practice questions
Q1. Who among the following are members of the electoral college for the election of the President of India?
1. Elected members of the Lok Sabha and the Rajya Sabha
2. Elected members of the State Legislative Councils
3. Elected members of the Legislative Assembly of the National Capital Territory of Delhi
Select the correct answer using the code given below:
- 1 only
- 1 and 2 only
- 1 and 3 only
- 1, 2 and 3
Show answer
Answer: C. 1 and 3 only
Article 54 includes the elected members of both Houses of Parliament and of the State Legislative Assemblies; the 70th Amendment added the elected members of the Delhi and Puducherry Assemblies. Members of Legislative Councils have no vote, so the options containing 2 are wrong, and '1 only' misses Delhi.
Q2. Consider the following statements about the impeachment of the President:
1. The charge can be preferred by either House of Parliament.
2. Nominated members of Parliament cannot take part in the impeachment.
Which of the statements given above is/are correct?
- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Show answer
Answer: A. 1 only
Statement 1 is correct under Article 61(1). Statement 2 is wrong: impeachment is by the Houses of Parliament, and nominated members, though they do not vote in the election, take part in it. So '2 only', 'both' and 'neither' are wrong.
Q3. An ordinance promulgated by the President under Article 123, unless approved earlier, ceases to operate:
- Six months after it is promulgated
- Six weeks after it is promulgated
- Six weeks after the reassembly of Parliament
- At the end of the session in which it is laid
Show answer
Answer: C. Six weeks after the reassembly of Parliament
Article 123(2)(a): an ordinance ceases to operate six weeks from the reassembly of Parliament, or earlier if both Houses disapprove it. The count does not run from promulgation, and the end of the session is not the test; 'six months' is the maximum gap between sessions, not the ordinance's fixed life.
Q4. Under Article 72, substituting one form of punishment with a lighter form, such as rigorous imprisonment for a death sentence, is called:
- Remission
- Commutation
- Reprieve
- Respite
Show answer
Answer: B. Commutation
Commutation changes the form of the punishment. Remission reduces its period without changing its nature; a reprieve only stays execution for a time; a respite gives a lesser sentence because of a special fact such as pregnancy.
Q5. The President of India can exercise a 'pocket veto' over a bill passed by Parliament because:
- The Constitution prescribes no time limit within which the President must decide on a bill
- The President can return a Money Bill for reconsideration
- Parliament needs a two-thirds majority to override any veto
- Article 111 lets the President refer a bill to the Supreme Court
Show answer
Answer: A. The Constitution prescribes no time limit within which the President must decide on a bill
Article 111 gives no time limit for the President's decision on a Union bill, which makes a pocket veto possible. A Money Bill cannot be returned; a returned bill is overridden by passing it again by the ordinary majority, not two-thirds; Article 111 says nothing about a reference to the Supreme Court (that is Article 143).
Q6. If the offices of both the President and the Vice-President fall vacant at the same time, who discharges the functions of the President?
- The Speaker of the Lok Sabha
- The Prime Minister
- The Chief Justice of India
- The Deputy Chairman of the Rajya Sabha
Show answer
Answer: C. The Chief Justice of India
Under the President (Discharge of Functions) Act, 1969, the Chief Justice of India, or failing that the senior-most available Supreme Court judge, discharges the President's functions; this happened in 1969. The Speaker, the Prime Minister and the Deputy Chairman have no such role.
Q7. Consider the following statements about Article 74:
1. The President may require the Council of Ministers to reconsider its advice once.
2. Courts may inquire into what advice was tendered by the ministers to the President.
Which of the statements given above is/are correct?
- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Show answer
Answer: A. 1 only
Statement 1 reflects the proviso added by the 44th Amendment (1978). Statement 2 is wrong: Article 74(2) bars courts from inquiring whether any, and if so what, advice was tendered. So '2 only', 'both' and 'neither' are wrong.
Q8. Doubts and disputes arising in connection with the election of the President are inquired into and decided by:
- The Election Commission of India
- The Supreme Court
- The High Court of Delhi
- A joint committee of both Houses of Parliament
Show answer
Answer: B. The Supreme Court
Article 71(1) gives this power to the Supreme Court alone. The Election Commission conducts the election but does not decide disputes about it; no High Court or parliamentary committee has this role.
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- Constitution of India, Part V, Chapter I (Articles 52–78) and Articles 3, 85, 87, 111, 117, 123, 143, 161, 201 and 267 — https://legislative.gov.in/constitution-of-india/
- Presidential and Vice-Presidential Elections Act, 1952 (as amended in 1997); President (Discharge of Functions) Act, 1969; Constitution (Twenty-fourth Amendment) Act, 1971; (Thirty-eighth Amendment) Act, 1975; (Forty-second Amendment) Act, 1976; (Forty-fourth Amendment) Act, 1978; (Seventieth Amendment) Act, 1992; (Eighty-fourth Amendment) Act, 2001 — https://www.indiacode.nic.in
- Supreme Court of India: Samsher Singh v. State of Punjab (1974); Maru Ram v. Union of India (1980); D.C. Wadhwa v. State of Bihar (1987); Kehar Singh v. Union of India; Epuru Sudhakar v. Government of Andhra Pradesh (2006); Krishna Kumar Singh v. State of Bihar (2017) — https://digiscr.sci.gov.in