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President in Relation to Parliament 21

CHAPTER III
President in Relation to Parliament
Under the Constitution, the executive power of the Union is vested in the
President to be exercised by him either directly or through officers subordinate to
him
1
. The executive power of the Union is co-extensive with the legislative power of
Parliament, and Parliament consists of the President and the two Houses of Parliament
2
.
Thus, on the one hand, President is the head of the Executive, and on the other, he
is a constituent part of Parliament. This represents a real fusion of the highest executive
and legislative authorities. In terms of the Constitution, as also in actual practice, the
relationship between the Executive and the Legislature is one that is most intimate
and ideally does not admit of any antagonism or dichotomy
3
.
President and Council of Ministers
Prior to the Forty-second Amendment of the Constitution, there was no express
obligation on the part of the President to act in accordance with the advice tendered
by the Council of Ministers. However, implied in the formal constitutional provision
4
,
read with the conventions, practices and usages that operated in practice, was that the
President was a constitutional head and exercised his powers on the advice of the
Council of Ministers.
The Forty-second Amendment Act made it obligatory for the President to act
in accordance with the advice of the Council of Ministers. This rigidity was, however,
partly diluted by the Constitution Forty-fourth Amendment Act, which provided that
the President may require the Council of Ministers to reconsider the advice, either
generally or otherwise, but he shall act in accordance with the advice tendered after
such reconsideration. In actual practice, therefore, it has been the Council of Ministers
and not the President which bears the responsibility for all executive action
5
.
The Constituent Assembly never envisaged that the powers and functions vested
in the President would be exercised by him on his own without the advice of the
1. Art. 53(1).
2. Arts. 73(1) and 79.
3. See Subhash C. Kashyap: Parliament of India: Myths and Realities, National, New Delhi, 1988,
pp. 39, 43 and 70.
4. Art. 74, as it stood before amendment, read as under: There shall be a Council of Ministers with
the Prime Minister at the head to aid and advise the President in the exercise of his functions.
5. When a member raised a point that since the Constitution gave the President the power to make
an ordinance whenever he was satisfied that it was necessary for himto exercise that power, the
propriety of his action could not be called in question. Speaker Mavalankar then observed:
The President is a constitutional President who acts on the advice of the Government. And,
therefore, when it is said that the President is satisfied, it really means the Government are
satisfied and this House is entitled to criticise the Government on that issue H.P. Deb., (II),
16-2-1954, c. 90.
22 Practice and Procedure of Parliament
Ministers. This point was clearly elucidated by several members in the Constituent
Assembly. While introducing the Draft Constitution as settled by the Drafting
Committee, Dr. B.R. Ambedkar made it clear thus:
Under the Draft Constitution, the President occupies the same position as the King
under the English Constitution. He is the Head of the State but not of the Executive. He
represents the Nation but does not rule the Nation... The President of the Indian Union will
be generally bound by the advice of his Ministers. He can do nothing contrary to their advice;
nor can he do anything without their advice
6
.
Dr. Alladi K. Ayyar observed:
One point that has to be remembered in this connection is that any power exercised
by the President is not to be exercised by himon his own responsibility. The word President
used in the Constitution stands for the fabric responsible to the Legislature
7
.
The same view had also been held by the Supreme Court:
Under article 53(1), the executive power of the Union is vested in the President, but
under article 75
8
there is to be a Council of Ministers with the Prime Minister at the head to
aid and advise the President in the exercise of his functions. The President has thus been made
a formal or constitutional head of the Executive and the real executive powers are vested in
the Ministers or the Cabinet
9
.
In actual practice also, the President has always acted on the advice of the
Council of Ministers. The Forty-second Amendment of the Constitution, thus, simply
confirmed the position that existed all along in this regard
10
.
6. C.A. Deb., 4-11-1948, p. 32.
The Draft Constitution originally contained a clause and a schedule of instructions to the President
which inter alia provided that he must act on ministerial advice. Ultimately, the instructions as
well as the clause were omitted as unnecessary. To a pertinent point asked, If in any particular
case the President does not act upon the advice of his Council of Ministers, will that be tantamount
to a violation of the Constitution and he will be liable to impeachment?, Dr. Ambedkars reply
was, There is not the slightest doubt about it. See C.A. Deb., Vol. X, 1949, pp. 268-71.
7. C.A. Deb., Vol. VII, p. 337; See also ibid., 30-12-1948, p. 1155; 2-8-1949, p. 124.
8. Obviously, to be read along with article 74(1), as it stood prior to its amendment.
9. In the case of Ram Jawaya v. State of Punjab, 1955, 2 S.C.R. 225(236).
In 1960, President Dr. Rajendra Prasad, in his speech at the Indian Law Institute, New Delhi, said:
There is no provision in the Constitution which in so many words lays down that the
President shall be bound to act in accordance with the advice of his Council of Ministers
Publications Division, Ministry of Information and Broadcasting, Govt. of India, Speeches by
Dr. Rajendra Prasad, 1960-61, p. 165.
At a Press Conference in Delhi in December 1960; Prime Minister J awaharlal Nehru said:
The President has always acted as a constitutional head... We have modelled our Constitution
on the Parliamentary systemand not on what is called the Presidential systemalthough we have
copied or rather adopted many provisions of the U.S. Constitution because ours is a federal one.
Essentially, our Constitution is based on the U.K. parliamentary model. That is the basic thing.
In fact, it is stated that wherever it does not expressly say anything, we should follow the practice
of the House of Commons in the U.K.Publications Division, Ministry of Information
and Broadcasting, Govt. of India, Jawaharlal Nehrus Speeches, Vol. IV, September 1957-
April 1963, pp. 100-101.
10. Despite the express provision contained in article 74(1) that the President, in the exercise of his
functions, is bound to act on the advice of the Council of Ministers. There was a constitutional
controversy over the signing by the Vice-President, B.D. J atti, acting as the President, of the
proclamations under article 356 dissolving nine State Legislative Assemblies.
President in Relation to Parliament 23
Presidents Right to Information
The President has, however, the right of receiving or calling for information.
Under article 78(a) of the Constitution, the Prime Minister has to communicate to the
President all decisions of the Council of Ministers relating to the administration of the
affairs of the Union and proposals for legislation. Article 78(b) casts an obligation on
the Prime Minister to furnish such information relating to the administration of the
affairs of the Union and proposals for legislation as the President may call for.
Under clause(c) of article 78, the President may require that a matter decided upon
by a Minister be placed before the Council of Ministers and it shall be the duty of
the Prime Minister to do so.
The question whether the duties entrusted to the Prime Minister in this regard
are absolute or subject to any implied limitations assumed significant political
importance in March 1987 when a newspaper published the text of a letter alleged to
have been written by the President to the Prime Minister
11
and in which the President
reportedly challenged the veracity of the Prime Ministers statement in Parliament
that he had been keeping the President briefed on important issues of national interest.
Speaking during the discussion on the Motion of Thanks on the Address by the
President, the Prime Minister had stated in the Lok Sabha:
our Ministers have been meeting the President continuously. Whenever there is a
point at issue, it has been discussed with the President, specially where it is of national interest
there is no time when issues of national interest are kept away fromthe President
12
.
Requesting the members to honour the institution and to keep the Office of the
President above politics, the Prime Minister made the same assertion in the RajyaSabha
as well
13
.
Repeated attempts by members in both the Houses to discuss, in one form or
the other, the alleged letter from the President to the Prime Minister or the related
issues could not succeed, as the Presiding Officers in both the Houses consistently
The copies of Proclamations were sent by the Union Cabinet on 29 April 1977 for the signatures
of the Vice-President acting as the President. The Proclamations were, however, signed by himon
30 April 1977 after a delay of about 24 hours.
11. On 13 March 1987, the Indian Express published a letter purported to have been written by the
President to the Prime Minister. The text of the alleged letter, which was not authenticated either
by the President or by the Prime Minister, contained, inter alia, the following:
The President-Prime Minister relations in our country are governed by certain
well-established practices and conventions besides express provisions of the Indian Constitution.
I amconstrained to say that certain well-established conventions have not been followed.
Before your visit abroad and after your return I have not been briefed...In fact, I have not been
briefed on foreign policy issues relating to such of our immediate neighbours in South Asia
with which there are outstanding problems...Even on certain important domestic issues, I have
not been kept informed on matters relating to accords finalised in respect of Assam, Punjab
and Mizoram. I was not briefed at any stage...It is also distressing that constitutional provisions
regarding furnishing of information to the President have not been consistently followed.
I have brought it to your notice that reports of some of commissions of enquiry had not been
sent to me even long after their receipt by the Government.
12. L.S. Deb., 2-3-1987, c. 396.
13. R.S. Deb., 4-3-1987, c. 296.
24 Practice and Procedure of Parliament
ruled that the Presidents name could not be brought in any way on the floor of the
House for influencing any debate
14
. It was held that for the exercise of all the executive
power in the name of the President and for the discharge of all his functions, it is the
Council of Ministers alone that is responsible to Lok Sabha
15
. Further, any talks
between the Prime Minister or the Council of Ministers and the President or any
letters exchanged between them are entirely between them and not the concern of the
House
16
. The Speaker, on 19 March 1987, ruled:
I amabsolutely clear in my mind that any debate on the floor of the House which
brings in the name of the President into any controversy or which tends to discuss the
relationship between the President and his Council of Ministers, must be avoided at all costs
in the wider interests of the nation. We are still in the process of developing sound conventions
and traditions. Let us not, in the heat of the moment, do something which might hamper this
process
17
.
The Opposition aggrieved over the denial of an opportunity to discuss this
matter before the House brought a Resolution for removal of the Speaker. The
Resolution which stated That this House having taken into consideration the Ruling
of the Speaker of the House including the one on 19 March 1987 on the question of
privilege and adjournment motions feels that by denying to the members right to raise
vital constitutional and procedural issues and burning problems, the Speaker has
ceased to command the confidence of all sections of the House and, therefore, resolves
that he be removed from his Office, was discussed by the House on 15 April 1987
18
.
During the discussion
19
, members from the treasury and opposition benches
tried to interpret the constitutional provisions regarding the power of the President to
call for information from their points of view
20
.
The protagonists of the Presidents powers under article 78 give him a role,
independent of his Council of Ministers, for calling for information relating to the
administration of the affairs of the Union, etc. On the other hand, it is pointed out
that article 78 of the Constitution should not be viewed in isolation from other
provisions like article 74 and that it is the prerogative of the Union Council of
Ministers to decide what type of information can be furnished to the President. No
final opinion on this has emerged in Parliament
21
.
14. Rule 352(vi). See L.S. Deb., 2-3-1987, 9-3-1987, 13-3-1987, 18-3-1987, 19-3-1987. Also see R.S.
Deb., 20-3-1987, cc. 259-67; 30-4-1987, cc. 211-14.
15. L.S. Deb., 19-3-1987, c. 249.
16. Ibid., c. 251.
17. Ibid., cc. 251-52.
18. Ibid., 15-4-1987, cc. 564-89; 632-733.
19. Ibid., 15-4-1987, c. 692.
20. Ibid., c. 701.
21. Notices under Rule 189 by members have been admitted by the Speaker to discuss That this
House recommends to theGovernment of India to frame rules and guidelines for the discharge of
duties enjoined on the Prime Minister by article 78 of the Constitution and place thembefore the
House for its consideration. However, it has not come up for discussion in the House so far.
Bn. II, 7-5-1987, para 1654, 29-10-1987, para 1893; 12-2-1988, para 2065; 19-7-1988,
para 2362; 25-10-1988, para 2542; 15-2-1989, para 2769; 10-7-1989, para 3027; 20-12-1990,
para 951; 15-2-1991, para 1160.
President in Relation to Parliament 25
In the course of the formulation of a policy, the President, it has been suggested,
may give his counsel or require the matter to be reconsidered by the Council of
Ministers as a whole but once a policy has been decided by the Council of Ministers
and formally submitted to him, he has ultimately to abide by it and act accordingly.
In the words of B.N. Rau:
Acting on ministerial advice does not necessarily mean immediate acceptance of the
Ministrys first thoughts. The President can state all his objections to any proposed course of
action and ask his Ministers in Council, if necessary, to reconsider the matter. It is only in the
last resort that he should accept their final advice
22
.
President and Houses of Parliament
The Council of Ministers, under the Constitution, is collectively responsible to
the Lok Sabha only. The collective responsibility implies that a motion of
no-confidence can be moved in the Council of Ministers as a whole and not in
an individual Minister. Regarding the concept of collective responsibility,
Dr. B.R. Ambedkar observed in the Constituent Assembly:
In my judgement, collective responsibility is enforced by the enforcement of two
principles. One principle is that no person shall be nominated to the Cabinet except on the
advice of the Prime Minister. Secondly, no person shall be retained as a member of the Cabinet
if the Prime Minister says that he shall be dismissed
23
.
The President may summon each House of Parliament to meet at such time and
place as he thinks fit, but in no case should the period intervening between its last
sitting in one Session and the date appointed for its first sitting in the next Session
exceed six months
24
.
The President may prorogue the Houses or either House of Parliament and
dissolve the Lok Sabha
25
.
22. B.N. Rau: Indias Constitution in the Making, Allied Publishers, 1963, p. 410.
23. See art. 75(3); C.A. Deb., 30-12-1948, p. 1159.
24. Art. 85(1).
It was suggested in the Constituent Assembly that the power of summoning the respective Houses
of Parliament should vest in the Speaker of Lok Sabha or in the Chairman or Deputy Chairman
of Rajya Sabha as it could happen that the President might fail to summon Parliament in ordinary
times or he may not summon Parliament at all when there was an emergency. Dr. B.R. Ambedkar,
the Chairman of the Drafting Committee, observed that if the President failed to performan
obligation imposed on himby law and refused to summon Parliament, that would be violation of
the Constitution and the President could be displaced by impeachment. Explaining why the power
to summon Parliament was vested in the President, he said:
Suppose, for instance, the President for good reasons does not summon the Legislature
and the Speaker and the Chairman do summon the Legislature. What is going to happen? If
the President does not summon the Legislature it means that the Executive Government has
no business which it can place before the House for transaction. Because, that is the
only ground on which the President, on the advice of the Prime Minister, may not call the
Assembly in Session. Now, the Speaker cannot provide business for the Assembly, nor can the
Chairman provide it. The business has to be provided by the Executive, that is to say, by the
Prime Minister who is going to advise the President to summon the Legislature. Therefore,
merely to give power to the Speaker or the Chairman to summon the Legislature without
making proper provisions for the placing of business to be transacted by such an Assembly
called for in a Session by the Speaker or the Chairman would to my mind be a futile operation
and, therefore, no purpose will be served. See C.A. Deb., 18-5-1949, pp. 106-07.
25. Art. 85(2).
26 Practice and Procedure of Parliament
In the case of the State Legislature, it is the Governor who may from time
to time prorogue the Houses or either House of the Legislature and dissolve the
Legislative Assembly
26
. Referring to the power of prorogation of the Governor, the
Supreme Court observed :
The article which enables the Governor to prorogue the Legislature does not indicate
any restrictions on this power. Whether a Governor will be justified to do this when the
Legislature is in Session and in the midst of its legislative work is a question that does not
fall for consideration here. When that happens the motives of the Governor may conceivably
be questioned on the ground of an alleged want of good faith and abuse of constitutional
powers
27
.
The proposal to summon, prorogue or dissolve Lok Sabha may be made by the
Prime Minister with or without the consultation of the Cabinet
28
.
At the commencement of the first Session after each General Election to
Lok Sabha and at the commencement of the first Session of each year, the President
addresses both Houses of Parliament assembled together and informs Parliament of
the causes of its summons
29
. Besides the opening address, he may address either
House of Parliament or both Houses assembled together, and for that purpose require
the attendance of members
30
. He is also empowered to send messages to either
House, whether with respect to a Bill then pending in Parliament or otherwise
31
and
a House to which any message is so sent shall, with all convenient despatch, consider
any matter required by the message to be taken into consideration.
The President appoints an acting Chairman of the Rajya Sabha in case:
the Office of Chairman is vacant, or
26. Art. 174(2).
27. State of Punjab v. Satya Pal Dang and others, A.I.R. 1969 S.C. 903.
28. A suggestion was made in the Constituent Assembly that to guard against arbitrary advice
by the Prime Minister for the dissolution of Lok Sabha it might be enacted that in case the
Prime Minister desired the dissolution of the House earlier than the completion of the normal term
of five years as provided in the Constitution, he should record the reasons therefor in writing. This
suggestion was not accepted by Dr. Ambedkar, the Chairman of the Drafting Committee, for
various reasons. He observed:
In the same way, as the King in the United Kingdom does, the President of the
Indian Union will test the feelings of the House whether the House agrees that there should
be dissolution or whether the House agrees that the affairs should be carried on with some
other leader without dissolution. If he finds that the feeling was that there was no other
alternative except dissolution, he would as a Constitutional President undoubtedly accept the
advice of the Prime Minister to dissolve the House. Therefore, it seems to me that the insistence
upon having a document in writing stating the reasons why the Prime Minister wanted a
dissolution of the House seems to be useless and not worth the paper on which it is written.
There are other ways for the President to test the feeling of the House and to find out whether
the Prime Minister was asking for dissolution of the House for bona fide reasons or for purely
party purposes. I think we could trust the President to make a correct decision between the
party leaders and the House as a whole. L.S. Deb., 18-5-1949, pp. 106-07.
29. Art. 87.
30. Art. 86(1).
31. Art. 86(2).For an analogous provision, see sec. 13(7) of the Constitution of Eire. However, the
Irish President, before sending the message, must have the approval of the Ministry and the
Presidential message cannot cover any other field except the matter of public and national
importance.
President in Relation to Parliament 27
during any period when the Vice-President who is ex officio Chairman is
acting as, or discharging the functions of the President, and
the Office of the Deputy Chairman is also vacant
32
.
Similarly, the President appoints the Speaker pro tem, from amongst the members
of the Lok Sabha, to preside over the first sitting of the new Lok Sabha
33
.
Every member of either House of Parliament, before taking his seat in the
House, is required to make and subscribe the oath or affirmation before the President
or some person appointed in that behalf by him
34
.
In the case of disagreement between the two Houses on a Bill, other than a
Money Bill, the President may summon both the Houses to meet in a joint sitting for
the purpose of deliberating and voting on the Bill unless the Bill has lapsed by reason
of dissolution of the Lok Sabha
35
. The President has in accordance with art. 118(3)
of the Constitution made rules in consultation with the Chairman of Rajya Sabha and
the Speaker of Lok Sabha, as to the procedure with respect to joint sittings of, and
communications between, the two Houses
36
.
Certain Bills cannot be introduced or proceeded with unless the recommendation
of the President has been received. The recommendation of the President is required
For introduction of Bills and for moving amendments relating to
financial matters. However, no recommendation is required for moving of an
amendment making provision for the reduction or abolition of any tax
37
.
For introduction of a Bill relating to formation of new States or of
alteration of areas, boundaries or names of existing States. Where the proposal
contained in a Bill affects the area, boundaries or name of any of the States,
the Bill has to be referred by the President to the Legislatures of the concerned
States for expressing their views thereon within such period as may be
specified in the reference or within such further period as the President may
allow and the Bill can be introduced only after the period so specified or
allowed has expired
38
.
For introduction of a Bill or moving of an amendment affecting taxation
in which States are interested
39
.
32. See art. 91(1).
33. In accordance with the second proviso to article 94, the Speaker of the dissolved Lok Sabha
vacates his Office immediately before the first meeting of the next House constituted after the
General Elections. There being thus neither Speaker nor Deputy Speaker, the President under
Article 95(1) appoints a member as Speaker pro tem. It has been an established practice that the
senior-most member in the newly-constituted House is appointed as Speaker pro tem and he
remains in office till the election of new Speaker by the House.
34. Art. 99For details, see Chapter XVOath, Affirmation, etc.
35. Art. 108For details, see Chapters IVRelations between the Houses and Chapter
XXIILegislation.
36. These Rules are called The Houses of Parliament (J oint Sittings and Communications) Rules.
37. Art. 117(1) read with art. 110.
38. Art. 3, Proviso.
39. Art. 274(1).
28 Practice and Procedure of Parliament
For consideration of a Bill which, if enacted, would involve expenditure
from the Consolidated Fund of India
40
.
No Act of Parliament, and no provision in any such Act, would be invalid by
reason only that requisite recommendation or previous sanction was not given by the
President
41
. Such requirements are regarded as matters of procedure only.
After a Bill has been passed by the Houses of Parliament, it is presented to the
President who may either assent to the Bill or withhold his assent
42
. No provision has
been made in the Constitution as to the period within which the President must assent
to a Bill after it is presented to him for assent. The President may, as soon as possible
after the presentation to him of a Bill for assent, return the Bill, if it is not a Money
Bill, to the Houses with a message requesting the House to reconsider the Bill or any
specified provisions thereof and, in particular, to consider the desirability of introducing
any such amendments as the President may recommend in his message
43
. When a Bill
is so returned, the Houses are obliged to reconsider the Bill accordingly. If the Bill
is passed again by the Houses, with or without amendment, the President cannot
withhold his assent therefrom
44
.
The President causes to be laid before both the Houses of Parliament in respect
of every financial year, a statement of the estimated receipts and expenditure of the
Government of India, also referred to as the annual financial statement, i.e., Budget
for the year. The estimates show separately the sums required to meet the expenditure
charged upon the Consolidated Fund of India and the sums required to meet other
40. Art. 117(3).
41. Art. 255.
42. The Salary, Allowances and Pension of Members of Parliament (Amendment) Bill, 1991, passed
by the Houses was submitted to the President on 18 March 1991. On 9 March 1992, the Secretary,
Ministry of Law, informed Rajya Sabha that the President, on 6 March 1992, had withheld assent
to the above Bill. Also see, Chapter XXII on Legislation under Assent to Bills.
43. Art. 111 says that if the President wants to return the Bill, he shall do it as soon as possible
after the Bill is presented to him. In the corresponding article 91 of the Draft Constitution, the
period was six weeks, but on an amendment moved by Dr. Ambedkar it was changed to as soon
as possible.
The Indian Post Office (Amendment) Bill, 1986, passed by the Houses, was submitted to the
President on 19 December 1986 for assent. The President, after a lapse of over 3 years, returned
the Bill to Rajya Sabha on 7 J anuary 1990 for reconsideration by the Houses. The Bill has not
so far been reconsidered by the Houses.
The Parliament (Prevention of Disqualification) Amendment Bill, 2006 passed by both Houses of
Parliament in the seventh Session of Fourteenth Lok Sabha was returned by the President A.P.J .
Abdul Kalamfor reconsideration of the Houses. In the subsequent Eighth Session, the Bill was
again passed by both the Houses without any change.
However, a J oint Committee of the Parliament was constituted to define as to what constitutes an
Office of Profit. Thereafter the President gave his assent to the Bill.
44. Art. 111.
The assent to the Patiala and East Punjab States Union Appropriation Bill, 1954, which was
passed by both the Houses of Parliament, was withheld by the President, as by the time the Bill
was presented to the President, he had already revoked the Proclamation under which he assumed
functions of the Patiala and East Punjab States Union. The information in regard to the withholding
of the assent by the President was conveyed to the House by the Speaker. H.P. Deb., 5-4-1954,
c. 4035.
President in Relation to Parliament 29
expenditure proposed to be made from the Consolidated Fund of India
45
. So, much
of the estimates as relate to expenditure other than expenditure charged on
the Consolidated Fund of India are submitted in the form of demands for grants to
Lok Sabha and no demand for a grant can be made except on the recommendation
of the President
46
.
The President also causes to be laid before both Houses of Parliament, whenever
necessary, statements showing supplementary, additional or excess grants
47
.
A contingency fund in the nature of an imprest, known as the Contingency Fund
of India, has been placed at the disposal of the President to enable advances to be
made by him out of such Fund for the purpose of meeting unforeseen expenditure
pending authorization of such expenditure by Parliament by law
48
.
The President may nominate two members to Lok Sabha to represent the Anglo-
Indian community
49
. He also 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
50
.
The President decides the question as to whether a member of Parliament has
become subject to any of the disqualifications for membership as also the question
whether a person found guilty of a corrupt practice at an election to a House of
Parliament under any law made by Parliament, except the question of disqualification
on ground of defection
51
, is to be disqualified for being chosen as and for being a
member of Parliament
52
. The Presidents decision on any question regarding
disqualification of a member is final but before giving any decision on any such
question, the President is required to consult the Election Commission which is
empowered to hold an inquiry in this behalf
53
. The power to disqualify a member on
ground of defection vests in the Speaker
54
.
45. Art. 112.
The emoluments and allowances of the President and other expenditure relating to his Office is
one of the items of expenditure charged upon the Consolidated Fund of India. Though these can
be discussed by the House but are not subject to vote.
46. Art. 113.
47. Art. 115.
48. Art. 267(1).
Rules have been made by the Government of India regulating all matters connected with or
ancillary to the custody of, or the payment of money into, and the withdrawal of moneys fromthe
Contingency Fund of India.
49. Art. 331. For details, see Chapter IIComposition of Parliament.
50. Art. 80. See also Chapter IIComposition of Parliament.
51. Tenth Schedule to the Constitution.
52. Art. 102.
53. Art. 103. Earlier, before giving any decision on any such question, the President was required to
obtain the opinion of the Election Commission and to act according to such opinion. For details,
see Chapter VElection of President, Vice President and Members of Parliament.
54. The Constitution (Fifty-second Amendment) Act, 1985.
30 Practice and Procedure of Parliament
The President causes the following reports to be laid before both Houses of
Parliament
55
.
Reports of the Comptroller and Auditor-General of India relating to the accounts
of Union.
Recommendations made by the Finance Commission together with an explanatory
memorandum as to the action taken thereon.
Reports of the Union Public Service Commission together with a memorandum
explaining as respects the cases, if any, where the advice of the Commission was not
accepted, and the reasons for such non-acceptance.
Reports of the National Commission for Scheduled Castes, the National
Commission for Scheduled Tribes and the National Commission for Women.
Reports of the Backward Classes Commission together with a memorandum
explaining the action taken thereon.
Reports of the Commissioner for Linguistic Minorities.
Reports of the Official Language Commission and of the Committee of Parliament
to examine the recommendations of the Official Language Commission, which are
presented to the President, have also in the past been laid before both the Houses of
Parliament
56
.
Other Functions of the President
The President appoints the Council of Ministers with the Prime Minister at the
head to aid and advise him, who is the leader of the majority party in the Lok Sabha
and, on his advice, appoints other Ministers. The Ministers hold post during the
pleasure of the President
57
. Technically, the ultimate choice in the matter of appointment
of Ministers rests with the Prime Minister but if the Prime Minister does happen to
appoint a Minister who is not worthy of the post, it would be possible for Lok Sabha
to adopt a motion of no-confidence in the Council of Ministers and thereby get rid
of the Minister concerned or of the Prime Minister, if he is not prepared to have the
Minister dismissed on the call of Lok Sabha. The President is bound to take due note
of a motion of no-confidence in the Council of Ministers adopted by Lok Sabha and
dismiss the Council of Ministers, if the Prime Minister does not tender his resignation
on the adoption of the said motion
58
.
The President appoints the J udges of the Supreme Court and the High Courts
of various States
59
. After his appointment, a J udge of the Supreme Court or the
High Court cannot be removed from his office except by an order of the President
passed after an address by each House of Parliament, supported by a majority of the
55. Under arts. 151(1), 281, 323(1), 338(6), 338A(6), 340(3) and 350B(2).
56. Art. 344. L.S. Deb., 12-8-1957, cc. 7980-81; 22-4-1959, cc. 12804-05.
57. Art. 75.
58. See C.A. Deb., 30-12-1948, pp. 1159-60.
59. Arts. 124 and 217, respectively.
President in Relation to Parliament 31
total membership of the House and by a majority of not less than two-thirds of the
members of that House present and voting, has been presented to the President in the
same Session for such removal on the ground of proved misbehaviour or incapacity
60
.
When the President resigns his Office, the resignation is addressed to the
Vice-President, who is required to communicate it forthwith to the Speaker of
Lok Sabha
61
.
Legislative Powers of the President
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 such Ordinances as the circumstances
appear to him to require. An Ordinance so promulgated has the same force and effect
as an Act of Parliament, but every Ordinance has to be laid before both Houses of
Parliament. The Ordinance ceases to operate at the expiration of six weeks from the
reassembly of Parliament, or if resolutions disapproving it are passed by both the
Houses before the expiration of six weeks then upon passing of the second of those
resolutions. It can also be withdrawn at any time by the President
62
.
For three years from the commencement of the Constitution
63
, the President
was vested with the power to make by order necessary adaptations and modifications
of any law in force in the territory of India immediately before the commencement
of the Constitution for the purpose of bringing the provisions of such a law into
accord with the provisions of the Constitution whether by way of repeal or amendment
and to provide that the law would, as from such date as was specified in the order,
have effect subject to the adaptations and modifications so made and any such
adaptation or modification could not be questioned in any court of law.
For the purpose of bringing the provisions of any law in force in India or any
part thereof immediately before the commencement of the Constitution (Seventh
Amendment) Act, 1956, into accord with the provisions of the Constitution as amended
by that Act, the President could, by an order made before 1 November 1957, make
such adaptations and modifications of the law, whether by way of repeal or amendment,
60. Arts. 124(4) and 218.
Parliament has been vested under cl. (5) of article 124 with the power to regulate by law the
procedure for presentation of an address and for the investigation and proof of the misbehaviour
or incapacity of a J udge. Parliament has accordingly passed the J udges (Inquiry) Act, 1968. For
details re: procedure under the law, see Chapter XLIIParliament and J udiciary.
61. Art. 56. In the Draft Constitution, as placed before the Constituent Assembly of India, the provision
was that the resignation should be addressed by the President to the Chairman of Rajya Sabha and
the Speaker of Lok Sabha. While adopting this article, an amendment, providing that the resignation
should be addressed to the Vice-President so that one person only was to receive it and be
responsible to set the machinery in motion to fill the vacancy, was adopted. It was also
felt desirable that the Speaker should immediately know of the resignation. Hence, it was
provided that the Vice-President should forthwith communicate the resignation to the Speaker
see C.A. Deb., 13-12-1948, pp. 1020-22.
62. Art. 123. For further details, see Chapter XXIIIOrdinances and Proclamations by President.
63. See art. 372(2). According to the Constitution as originally framed, the period was two years.
This period was increased to three years by the Constitution (First Amendment) Act, 1951.
32 Practice and Procedure of Parliament
as was necessary or expedient, provided that the law would, as from such date as was
specified in the order, have effect, subject to adaptations and modifications so made, and
any such adaptations or modifications could not be questioned in any court of law
64
.
The President has the power to direct, by public notification, that from such
date as may be specified in the notification, any Union or State law shall not apply
to any major port or aerodrome or shall apply thereto subject to such exceptions or
modifications as may be specified in the notification
65
.
The President may make regulations for the peace, progress and good government
of the Union territory of
the Andaman and Nicobar Islands;
Lakshadweep;
Dadra and Nagar Haveli;
Daman and Diu; and
Puducherry
66
.
When a body is created to function as a Legislature for the Union territory of
Puducherry, the President shall not make any regulation with effect from the date
appointed for the first meeting of the Legislature. But whenever such a body functioning
as a Legislature is dissolved or the functioning of that body as a Legislature remains
suspended under the provisions of the Government of Union Territories Act, 1963
enacted in pursuance of clause (1) of article 239A, the President may, during the
period of such dissolution or suspension, make regulations for the peace, progress and
good government of that Union territory.
67
Any regulation made may repeal or amend any Act made by Parliament or any
other law which is for the time being applicable to the Union territory and, when
promulgated by the President, shall have the same force and effect as an Act of
Parliament which applies to that territory
68
.
Powers during Emergency
If the President is satisfied that a grave emergency exists on account of either
war or external aggression or armed rebellion
69
or failure of constitutional machinery
in a State
70
or due to threat to the financial stability or credit of India
71
, he may, by
proclamation, make a declaration to that effect
72
. In the case of a proclamation relating
64. Vide art. 372 A. For orders issued under this provision, see the Adaptation of Laws Orders of 1956
and 1957.
65. See art. 364.
66. The Pondicherry (Alteration of Name) Act, 2006 altered the name of the Union territory as
Puducherry.
67. Arts. 239A and 240(1).
68. Art. 240(2).
69. Art. 352, substituted by Constitution (Forty-fourth Amendment) Act, 1978.
70. Art. 356.
71. Art. 360.
72. Art. 352.
President in Relation to Parliament 33
to the failure of constitutional machinery in a State, the President also assumes to
himself the functions of the Government of the State and the powers vested in or
exercisable by the Governor
73
. Special powers were conferred on the President by the
Constitution (Fifty-ninth Amendment) Act, 1988 to issue a proclamation of Emergency
in respect of the whole or any part of Punjab if the integrity of India was threatened
by internal disturbance in the whole or any part of Punjab. The Act, which came into
effect on 30 March 1988, was enacted to be in force for two years. It was subsequently
repealed by the Constitution (Sixty-third Amendment) Act, 1989, which came into
effect on 6 J anuary 1990.
Limitations on the Powers of the President
The Constitution has also placed the following limitations on the powers of the
President by granting certain overriding functions to Parliament:
Parliament can confer by law functions on authorities other than the
President
74
.
The President cannot return a Money Bill for reconsideration of the
Houses
75
.
The President cannot withold his assent to a Constitution Amendment
Bill or to a Bill earlier returned by him to the Houses with a message
requesting them to reconsider the Bill, if the Bill is passed again by the
Houses with or without amendment and presented to him for assent
76
.
Parliament can by a law determine the qualifications and manner of
selection of members for appointment to the Finance Commission, which,
under the Constitution, is constituted by the President
77
.
Subject to the provisions of any law made by Parliament, the President
may by order declare any State not to be a foreign State for such purposes
as may be specified in the order
78
.
Impeachment of the President
The President may be removed from Office by impeachment for violation of the
Constitution
79
.
When a President is to be impeached for violation of the Constitution, the
charge has to be preferred by either House of Parliament
80
.
73. Art. 356(1)(a). For details in regard to Proclamations, see Chapter XXIIIOrdinances and
Proclamations by President.
74. Art. 53(3)(b).
75. Proviso to art. 111.
76. Art. 368(2) and proviso to art. 111.
77. Art. 280(1) and (2).
78. Art. 367(3).
79. Art. 56(1) (b).
80. Art. 61(1).
34 Practice and Procedure of Parliament
No such charge can be preferred unless
(a) the proposal to prefer such charge is contained in a resolution, which has
been moved after at least fourteen days notice signed by not less than
one-fourth of the total number of members of the House, has been given
in writing, and
(b) such resolution has been passed by a majority of not less than two-thirds
of the total membership of the House
81
.
When a charge has been so preferred by either House of Parliament, the other
House shall investigate the charge or cause the charge to be investigated and the
President has the right to appear and to be represented at such investigation
82
. The
conduct of the President may be brought under review by any court, tribunal or body
appointed or designated by either House of Parliament for the investigation of such
charge
83
.
If, as a result of the investigation, a resolution is passed by a majority of not
less than two-thirds of the total membership of the House by which the charge was
investigated or caused to be investigated, declaring that the charge preferred against
the President has been sustained, such resolution shall have the effect of removing the
President from his Office as from the date on which the resolution is so passed
84
.
Succession to Presidency
The Constitution provides for succession to Presidency, and election to fill a
vacancy caused by expiration of the term of Office of the President has to be completed
before the expiration of the term
85
. Where a vacancy in the Office of President occurs
by reason of his death, resignation or removal, or otherwise, the Vice-President acts
as President until a new President is elected, in no case later than six months from
the date of occurrence of the vacancy
86
. The Constitution also provides that when the
President is unable to discharge his function owing to absence, illness, or any other
cause, the Vice-President shall discharge his functions until the date on which the
President resumes his duties
87
.
However, the Constitution does not provide for cases where a vacancy takes
place in the Offices of the President and the Vice-President simultaneously, or where
the Vice-President while acting as, or discharging the functions of the President, is
unable to do so. To cover such cases, Parliament made a law providing therein that
81. Art. 61(2). No notice of such a resolution has been tabled so far.
82. Art. 61(3).
83. Art. 361, First Proviso.
84. Art. 61(4).
85. Art. 62(1). See also in re. Presidential Election 1974, A.I.R. 1974, S.C. 1682.
Election to fill vacancy caused on expiration of the termof Office of President must be completed
before expiry of the termin spite of dissolution of the Legislative Assembly of any State.
86. Art. 65(1) read with art. 62(2).
87. Art. 65(2).
President in Relation to Parliament 35
88. The President (Discharge of Functions) Act, 1969. This Act was passed by virtue of article 70
which empowers Parliament to make such provisions as it thinks fit for the discharge of the
functions of the President in any contingency not provided for in the Constitution.
89. Gaz. Ex. Pt. II. 20-7-1969.
The recommendation of the President was sought for consideration of certain Bills by theHouse
in due course. The communication received by the Secretary, Lok Sabha conveyed that the
recommendation had been given in the case of the first such Bill by the Chief J ustice of India
discharging the functions of the President, in the case of the second Bill by the Chief J ustice
of India (Shri M. Hidayatullah) discharging the functions of the President, and in the subsequent
cases by Shri M. Hidayatullah, discharging thefunctions of thePresident. See Bn. II, 13-8-1969,
para 1295, 18-8-1969, para 1301; 21-8-1969, para 1305.
in such cases the Chief J ustice of India or, in his absence, the senior-most J udge of
the Supreme Court shall discharge the functions of the President
88
.
When the Vice-President, V.V. Giri, who was acting as President in the vacancy
caused by the death of the President, resigned from the Office of the Vice-President
with effect from the forenoon of 20 J uly 1969, the Chief J ustice of India discharged
the functions of the President from the forenoon of the said date
89
.