Since 1950, India has come under presidential ship of several reputed
personalities and now we are at our 14th President, Ram Nath Kovind The
president being the head of the nation and First Citizen of the nation, a set
of wide ranging powers and privileges are given under the various provisions of
the Indian Constitution. At this point of time there is a vital need to make a
evaluation as to what extent these powers and privileges endowed up on the
president was used and abused. This paper deals with the duties, powers and
responsibilities of president and the abuse of these powers and privileges.
President Of India
Article 52 to Article 61 of the constitution deals with the duties, powers and
responsibilities of the president of India. Article 52 and 53 states that there
shall be a president of India, and he is the executive head of nation and these
executive powers vested on him will be exercised either directly or through
officers subordinate to him in accordance with this constitution.
Article
54 and Article 55 deals with the process of election of the president. The
President is indirectly electedby an electoral college comprising
the Parliament of India (both houses) and the Legislative Assemblies of
each of India's states and territories, who themselves are all directly
elected. According to article 56, once a person is elected as the president of
India, he shall hold the office for a term of five years, and there is
provision under the article which allows the president to resign from the
position by addressing a letter to the vice president under his hand,
willingness to resign. Apart from this, a president can be removed for the
violation of the constitution by the process of Impeachment. And this
so called process of Impeachment is discussed under Article 61 of the
constitution.
Violation of the Constitution is the only ground for Impeachment of President.
The Impeachment charges can be initiated in either of the houses of the
Parliament with atleast one-fourth members of that house signing the charges
and later on a 14 day noticeshould be given to the President. Then one house
should pass this resolution with a majority of two-thirds of the total membership of the house and then send it to the other house. The
second house should investigate the charges and President will be given
the right to appear and to be represented at such an investigation to prove
his innocence. If the second house also passes the resolution with two-thirds
majority of the total membership of the house, then the President stands impeached from that date. According Article 58, for being elected as president
of the nation, there are a set of conditions which has to satisfied, such
as, the person should be a citizen of India , should have completed the age of
35 and he should be qualified for election as a member of the house of the
people and further, he shall not hold any office of profit under the
Government of India, or any state or under any local or other authority under
the control of the said governments. Once elected as the president, the
person will be entitled to all privileges, benefits, emoluments and allowances
mentioned under article 59, as long as he continues in the position.
Powers Of The President
The basic and fundamental duty or responsibility of the president is to
preserve, protect and defend the constitution and the law of India as made
part of his oath. The President is the common head of all independent
constitutional entities. All his actions, recommendations and supervisory powers over the executive and legislative entities of India shall be
used in accordance to uphold the constitution.
Legislative Power
... Legislative power is constitutionally vested by the Parliament
of India, which is headed by the President. The President inaugurates
Parliament by addressing it after the general elections and also at the
beginning of the first session every year per Article 87(1). The
Presidential address on these occasions is generally meant to outline
the new policies of the government. Through this , the president is
acknowledging that he is aware of the government policies and decisions and
he is impliedly showing his assent to these policies.
...President enjoys and holds a say in passing bill or implementing an act. All bills passed by the Parliament can become laws only after
receiving the assent of the President per Article 111. If a bill is send to the
president, he may give his assent to the bill or may withhold his assent from
the bill or he may return the bill to Parliament for its reconsideration. If the
bill is again passed by both Houses of Parliament, the President shall have
to give his assent.
...When either of the two Houses of the Parliament of India is not in
session, and if the government feels the need for an immediate procedure, the
President can promulgate ordinances which have the same force and effect as an
act passed by Parliament under its legislative powers. But these ordinance
are temporary or interim in nature and their continuance is subject to
parliamentary approval. Thus these Ordinances remain valid for not more than
six weeks from the date the Parliament is convened unless approved by it
earlier.162
...The President nominates two members to the Lok Sabha from the
Anglo-Indian Community and twelve members to the Rajya Sabha from among the
persons who have acquired special knowledge in art, science, literature and
social service.
...President has the power to dissolve the House of the People before the
expiry of its term.
Executive Power
The President of India is the head of the executive of the Union Government.
Therefore, all executive powers are vested in the hands of the President.
He can exercise these powers either directly or through the subordinate
officers.
·The President of India is Supreme Commander-in-Chief of the Army, Navy
and the Air Force of the Union.
·The President appoints the Governors of the States, the Judges of the
Supreme Court and High Courts of the States , the Prime Minister and
the other ministers in consultation with the Prime Minister. The
Constitution of India further, empowers the President to appoint the important
officers of the Union Government including the Attorney-General of India,
the Comptroller and Auditor - General of India, the Chairman of the Finance
Commission, the Election Commissioners etc.
·The President is responsible for the administration of the Union
Territories. For this reason, he appoints Chief Commissioners and Lieutenant
Governors of the centrally administered areas.
·The president has the power to remove the Council of Ministers, the
Governors of States and the Attorney-General for India.
·According Article 124, the president is duty bound to enforce the
decrees of Supreme Court.
Judicial Powers
· The primary duty of the President is to preserve, protect and defend
the constitution and the law of India per Article 60.
· The President appoints the Chief Justice of the Union Judiciary and
other judges on the advice of the Chief Justice. He dismisses the judges if and
only if the two Houses of the Parliament pass resolutions to that effect
by a two-thirds majority of the members present.
· The President has the power to grant pardons, reprieves or remissions
of punishment to any person who has been convicted by a Court of Law.
Apart from these powers , the president enjoys ‘Emergency Powers’ and
where by the president can declare National, State and Financial Emergency
under Articles 352, 356 and 360 respectively.
From the constitutional provisions and the scenario, it is clear that a wide
range of powers, privileges and duties are conferred up on the president. And
thus arises a question as to what extent these duties and powers rightly held
and utilised by the 14 presidents of India ? A good majority of Indian who are
aware of the political scenario would say that, these powers and privileges
were not utilised in an effective and efficient way and indeed these powers
were often misused or abused the presidents. At the same time, India has
witnessed and were under the rule of some wonderful persons such as Dr. S Radhakrishanan , Dr A P J Abdul Kalam. Let us now discuss about the abuse of
powers and privilege by president.
Abuse Of Power By The President
As hinted above, Article 352, 356 and 360 of the constitution confers up on the
president the power to declare emergency, and this so called power to declare or
promulgate emergency is one of the widely abused or violated provision.
The basic idea behind making specific provisions under constitution for
emergency was to protect against unintended emergence of autocracy as a result
of internal disorder, external attack or battle etc, but if we look back to the
history it is clear that the rulers or the authorities have failed to
understand the basic notion or aim behind these emergency provisions. As of now,
India has witnessed 3 national emergencies, and various state emergencies. But
there was no proper cause or reason behind these emergencies, that is, many a
times emergencies were declared not in accordance with the concerned provisions
of the constitution.
As discussed above, the three National Emergencies were during the period of
1962 , 1971, and from 1975-77. For the first two times, Article 352 was invoked
or applied in the wake of clash with China and as a result of the India and
Pakistan dispute on the ground of external aggression. The 1962 Emergency
rule remained in force during the Indo-Pak conflict in 1965, and was
revoked only in January, 1968. Thus, these two emergencies were actually in
accordance with the conditions and criteria of the constitutional provision and
can be justified to large extent. But on the other hand, the emergency that
was prevailing in India , during 1975 -77 during the reign of Indira Gandhi
and Fakhrudin Ahemmed Ali (the then President), was a clear abuse of Article
352. And this period is referred as the ‘ Dark Phase ‘ in the history of
independent India. The root cause of this 1975 emergency was the famous case of
Indira
Gandhi v Raj Narain, against Indira Gandhi for election malpractices in
Allahabad High Court.
In this particular case, Justice Jagmohanlal Sinha of Allahabad High
Court, passed a judgment convicting then Prime Minister Indira Gandhi of
electoral malpractices and debarring her from holding any elected post. The
facts of the case is that, in 1971 Lok Sabha election, Indira Gandhi got elected
from Bareli (Uttar Pradesh), by defeating the socialist leader Raj
Narain, and later on Raj Narain filed a case against Indira Gandhi , for
indulging in electoral malpractices and for violation of Representation of
People Act, 1951, and thus challenged her election. It was alleged that her
election agent Yashpal Kapoor was a government servant and that she used
government officials for personal election related work. And Indira Gandhi
was found guilty for electoral malpractices and court passed an order
disqualifying Indira Gandhi. But on an appeal filed by Indira Gandhi in the
Supreme Court, Justice VR Krishna Iyer on 24thJune, 1975 granted a conditional
stay on the judgment given by Allahabad High Court allowing her to continue
as Prime Minister. And, the very next day after the Supreme Judgment, Indira Gandhi made an ordinance to impose national emergency.
And the then president, Fakhruddin Ali Ahmed , assented to the ordinance,
even with out exercising or utilizing limited the powers vested with him as Indira Gandhi was so ardent and well planned with the act of imposing emergency. Fakhruddin Ali Ahmed was in fact considered to be one of the weakest president
of India, and thus he just acted in accordance with the wish or desire of Indira Gandhi by signing the order without much inquiry. And as a result, article
352 was again applied for the third time, but this time India witnessed a
worst and tyrannous period without a proper cause or reason. And as a result
of this , fundamental rights were suspended , people were arrested and
detained without any reason, people were forced to sterilize in the name of
family planning , high censorship was imposed on media etc. So basically,
though Presidential rule was imposed, it was more like Prime Ministerial
rule. According me , if the president was properly exercising his powers
and privileges, the conditions would have been way better. And thus there was a
clear mismanagement of powers by the president.
Article 356, which deals with the conditions and criteria for declaring state
emergency is yet another important provision that are being widely abused
by the president. Article 356 empowers the president to declare emergency
in a state, if there is a failure of constitutional machinery in that concerned
state, that is if there arises a situation in which the government of the
State cannot be carried on in accordance with the provisions of this
Constitution.
S.R
Bommai v Union of India, 1994, is one the important and landmark judgment
which deals with the power of president in declaring state emergency.
The facts of this case is as follows, in September 1988,the Janata Party and
Lok Dal merged into a new party called Janata Dal and they formed the
ministry. Soon after that, K.R. Molakery, a legislator of Janata Dal presented a letter to the Governor along with 19 letters, allegedly
signed by legislators supporting the Ministry, withdrawing their support. As a
result, the Governor sent a report to the President stating therein there were
dissensions and defections in the ruling party and he further added that,
since the members have withdrew their support, the Chief Minister S. R Bommai,
stands to loose his majority in the assembly. And the governor thus
recommended the president , that Article 356 should be imposed in the
state of Karnataka. But, on the following day, seven out of the nineteen
legislators who had allegedly written the said letters to the Governor sent
letters to him complaining that their signatures were obtained on the
earlier letters by misrepresentation and affirmed their support to the
Ministry. The Chief Minister and his Law Minister met the Governor the same
day and informed him about the decision to summon the Assembly to prove
the confidence of assembly in his Ministry.
The Governor without listening the state government, sent report to the
president stating that the Chief Minister has lost support in the assembly
and there is a failure of constitutional mechanism in the state ,
therefore requested to declare emergency. On that very day, the President
issued the Proclamation declaring the emergency in the state of Karnataka. And
on 26th April 1989, S R Bommai filed a writ petition in Karnataka High Court,
challenging the act of president by declaring emergency in the absence of
valid cause or reason. But the court dismissed the writ petition and later
on Bommai, filed an appeal in the Supreme Court. The Supreme overruled the
decision given by Karnataka High Court and laid down certain guidelines as to
prevent the abuse or misuse of Article 356 Governors and president.
Apart from this, similar situation has arose in the states of Meghalaya, Rajastan, Nagaland, Himachal Pradesh and
Madhya Pradesh.What happened in
Meghalaya was that , on 11 October 1991 the president issued a
proclamation under Article 356 (1) dismissing the government of Meghalaya and dissolving the legislative assembly. The Proclamation stated
that the President was satisfied on the basis of the report from the
Governor and other information received by him that the situation had arisen
in which the Government of the State could not be carried on in
accordance with the provisions of the Constitution. The Government was
dismissed and the Assembly was dissolved accordingly. The situation was more
or less the same in the other above mention states. Actually, president and
governors were using Article 356 as weapon to overthrow the government
of a state and there by indirectly supporting the political leaders and
parties in which they believe in. And from all these examples, it is very clear
that, presidents were abusing the power granted to them under 356 of the
constitution.
The very notion behind the article was to control and regulate the
administrative process and restore the tranquility and peace, if there arise
any situation which brings about any kind of instability in the state. But,
unfortunately, the authorities were using the so called provision as tool for
political plays.
As we know, under article 72 of the constitution, the president is endowed with
the right to to grant pardons, and to suspend, remit or commute sentences in
certain cases. This is yet another power which is being widely abused by the
president. The greatest level of abuse or misuse of the so called article was
during the period of the former president Pratiba Patil. Within a period of
28 months, she granted a record of 30 pardons and it was equal to 90% of
India's total death sentence pardoned ever. Out of these 30 pardons granted by
her, 22 cases were related to brutal multiple murders, brutal rapes, dreadful
crimes on children and minors etc. Govindachami, was a criminal who was
convicted for death penalty for the offence of committing and rape and for
murdering five of his relatives in a cruel and brutal manner when they were
sleeping. But this Pratiba Patil on 31stDecember, 2009, pardoned this pervert
and notorious criminal under Article 72 of the constitution and this was a
clear abuse of pardoning power of president.
Sushil Murmu is yet another person who was benefited from the foolishness
of president Pratiba Patil. Sushil Murmu was a person who have committed a
number of murders in the name of sacrifice to Godess Kali. In December 1996,
a case was reported in which Sushil Murmu was found guilty of committing
the murder of a 9 year old boy Chirku Besra as a sacrifice to Kali, the
further investigation revealed that, Murmu has killed many people, and he has
even sacrificed his own brother for Kali. The Supreme Court held that this was
crime against humanity and sentenced him for death penalty in 2004, but Murmu
was pardoned by Pratiba Patil in 2012.
From all these instances, it is well evident that there was a clear abuse of
pardoning power by the president. The pardoning power under Article 72 is an
executive function is entirely vested in the hands of the president and thus
judiciary can’t interfere into it. And therefore during all these instances,
judiciary was left with no option but to accept the decision of the president
and act accordingly.
Article 123 of the constitution enables the president to make ordinance
or laws, when either of the two Houses of the Parliament is not in session
which makes it impossible for a single House to pass and enact a law.
Ordinances may relate to any subject that the parliament has the power to
make law. Though the president has the power to promulgate ordinance, it
cannot be done unless he is satisfied that there are circumstances that
require him to take immediate action. After the ordinance has been passed
it is required to be approved by the parliament within six weeks of
reassembling. The same will cease to operate if disapproved by either House. And
this was one such widely abused power by president. The number of ordinances
issued from 1952 will go beyond 700 , out of these numerous
ordinances. The maximum number of outrageous and useless ordinance were
promulgated during the rule of Fakhruddin Ahmed Ali and Prime Minister Indira
Gandhhi.
In the case of
A.K. Roy v. Union of India, the Supreme Court
while examining the constitutionality of the National Security Ordinance,
1980 which was issued to provide for preventive detention in certain cases, the
Supreme Court argued that the President’s power of making Ordinances is not
beyond the Judicial Review of the court. However, the Court was unable to
explore the issues of the case further as the ordinance of the President was
replaced by an Act. The court also pointed out the need to exercise judicial
review over the President’s decision only at substantial grounds and not
otherwise at every ‘casual challenge’.
The president often abuse the power conferred upon him by indulging in
acts of unfair appointment and dismissal of authorities under him. For example,
take the case of governor, the power to appoint and dismiss the governor rests
in the hands of president. According Article 155, governor of a state will
be appointed by the president by warrant under his hand and seal. Under Article
156 the governor shall hold office during the pleasure of the President for a
term of five years from the date on which he assumes it. It is said that,
the governor can be dismissed for any kind of misbehaviour, delinquency of
constitutional obligation or abuse of power , but there isn’t any
specific provision or article stating this. But many a times governors were
dismissed under clause1 of Article 156, which states that the Governor shall
hold the office during the pleasure of the President. ‘ The pleasure of the
president ‘, in clause(1) is interpreted as the ‘pleasure of political party in
power’, and if we look back, we find many governors who were dismissed by
the president without any valid, but just to satisfy the desire of the ruling
parties.
Smt. Pratiba Patil, is considered as one of the weakest president of India who
has abused the power and privileges conferred on her to great extend. People
have openly stated that, Smt. Patil was not eligible or good enough to become
the president of India. The people who were waiting for the first woman
president were highly disappointed by her acts. As discussed in the above
section, she has created a record by granting death pardon to all the
notorious criminals who came before with a mercy petition without any
discrimination. Apart from this, she was misusing the power to favour her
family. She started a Cooperative Bank that was shut down because it was
giving loans to her family members on relaxed interest rates. After she
became president she continued to help her son’s political career. While
all politicians tend to favour their family, she could have restricted her
abuse of power out of respect for her position as the first citizen of
India. And she was famous for her extensive foreign trips by spending a huge
amount of money, She was even mocked by people in various ways for this reason.
She was just a paper pusher employed by the Congress Party. She never used
her power as the President to question any of Congress’s actions. She just sat
on her chair and signed where she was told to sign. That is the biggest
reason why she is the worst President in Indian history.
Conclusion
Whatever discussed in t he paper will only add up to one tenth of the abuse
or misuse of power by the presidents of India and this is not something
which gonna end here, all these malpractices, abuses of power and privilege
with crooked intention will continue till the world ends. From the above
discussion it is clear that, the presidents have abused their power in many
minor and major ways, among which some were even unconstitutional, but still
no president has been removed or impeached, this itself shows the political
play.
While discussing about abuse of power by president , it is inevitable to talk
about an ideal president. According to me, a good president is one who uses
the office of president in a transparent way as per norms. He should use his
powers and privileges to bring about good changes and development of the society
and there by integrating the whole nation and India has witnessed such
presidents such as Dr.A PJ Abdul Kalam, Dr. S Radhakrishnan, Dr. Rajendra
Prasad etc.
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