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Powers of Indian President and Its Abuse

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.

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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