Legislative power of the President ~ UPSC Polity Notes

Power of the President to summon, prorogue and dissolve the house

Article 85(1): He summons both the houses of the Parliament, which means he can order them to be present in a given specified time and place.
Article 85(2)(a): Prorogue both the houses of the Parliament, which means he can discontinue the session of the Parliament without dissolving the houses.
Article 85(2)(b): Dissolve the Lok Sabha, either before its complete term or after the completion of the term, in either case fresh general elections will have to take place to appoint new members to the house.

Power of the President to address the house

According to Article 87, the President gives a special opening address to both the houses of the Parliament assembled during:

Article 87 (1): The first session after each general election to both the House of the people, after all the members have taken their oath and the Speaker has been elected.
Beginning of the first session every year where both the houses are present together. In this session, the President talks about the various policies and programmes of the ruling government and also highlights the important works that were done by them in the previous year.
Article 87(2): Rules should be made about the allotment of time to different matters for discussion by the President in such addresses.

Power of the President to present reports to the house.

The President of India while holding the office has to present several reports in front of the Parliament from time to time, those reports are-

Budget
CAG Report
UPSC and Finance commission Report.

Power of the President to formulate special rule:

Under Article 239, The President has the power to formulate special rules for the Union Territories.
In certain circumstances, the President can make rules for the peace, progress, and good governance of the Union Territories of Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and Puducherry.
In the case of Puducherry, the President can only make rules when the assembly is dissolved and suspended.
He appoints speaker, deputy speaker of Lok Sabha, chairman and deputy chairman of Rajya Sabha
He consults the election commission of India on questions of disqualifications of MPs.

Power of the President to assent to bills

A bill is a legislative draft which includes measures or rules for smooth functioning of a country. If a bill successfully gets agreed and passed by the members of the Parliament, after this the President agrees and gives his assent to it and then it becomes an act.

According to the Article 111 when a bill is passed by the houses it must be presented before the president, he would either give his assent to the bill or withhold his assent therefrom provide that the president may as soon as possible send the bill back to the house without making amendments back to the house for reconsideration and if the house sends that bill again by making or not making changes, then the President will have to give his assent to it.
In case of Ordinary bills, the President can agree to the terms of the bill, withhold his assent or can send it back to the Parliament to make necessary changes.
In case of Money bills, he can either give his assent or withhold his assent, he cannot send it back for reconsideration.
In case of Constitutional Amendment bills, he has to agree with the bill, he neither can disagree nor send it back to the House.
When a bill passed by a state legislature is reserved by the governor for consideration of the President, the President can:
- Give his assent to the bill, or
- Withhold his assent to the bill, or
- Direct the governor to return the bill (if it is not a money bill) for reconsideration of the state legislature. It should be noted here that it is not obligatory for the President to give his assent even if the bill is again passed by the state legislature and sent again to him for his consideration.

Veto Power

Absolute Veto of the President:

When the President exercises his absolute veto, a bill never sees the day of the light. The bill ends even after passed by the Indian Parliament and does not become an act.President uses his absolute veto in the following two cases:

When the bill passed by the Parliament is a private member bill.
When the cabinet resigns before President could give his assent to the bill. The new cabinet may advise the President to not give his assent to the bill passed by the old cabinet.

In India, the President has exercised his absolute veto before. In 1954, it was exercised by Dr. Rajendra Prasad as a President and later in 1991, it was used by the then President R Venkataraman.

Suspensive Veto of the President:

The President uses his suspensive veto when he returns the bill to the Indian Parliament for its reconsideration. If the Parliament resends the bill with or without amendment to the Indian President, he has to approve the bill without using any of his veto powers.
His suspensive veto can be over-ridden by the repassage of the bill by the Indian Parliament
With respect to state bills, state legislature has no power to override the suspensive veto of President. The Governor can withhold the bill for the President’s consideration and even if state legislature resends the bill to governor and governor to President, he still can withhold his assent.
The President cannot exercise his suspensive veto in relation to Money Bill.

Pocket Veto of the President:

The bill is kept pending by the President for an indefinite period when he exercises his pocket veto.
He neither rejects the bill nor returns the bill for reconsideration.
Constitution does not give any time-limit to President within which he has to act upon the bill. Therefore, the President uses his pocket veto where he doesn’t have to act upon the bill.
Unlike the American President who has to resend the bill within 10 days, the Indian President has no such time-rule.
The Indian President has exercised this veto power before. In 1986, President Zail Singh exercised this pocket veto.
The President has no veto power when it comes to the constitutional amendment bills.

Power of the President to dissolve the Lok Sabha:

Under Article 83, of the Indian Constitution, the President of India has the power to dissolve the Lok Sabha. Lok Sabha can be dissolved in following circumstances-
Generally, the President dissolves the Lok Sabha on the advice of the Prime Minister after the completion of its tenure of 5 years, in order to command a majority in the Lok Sabha again.
If the Prime Minister on losing the majority advises the President, then he can dissolve the Lok Sabha.
The President may hear the Parliament and dissolve the Lok Sabha if he finds that there is conflict within the ruling party, and the party position is confusing.
He can dissolve the Lok Sabha if he finds the Prime Minister is acting unconstitutionally, abusing his powers and majority in the House. Here, this act of the President would be considered constitutional.

Ordinance Making Power Of The President

Ordinances were included in the Constitution of India from Government of India Act, 1935, which gave the authority to the Governor General to promulgate Ordinances. Section 42 and 43 of the said act dealt with Ordinance making power of the Governor General which states that, ‘If circumstances exist which render it necessary for him to take immediate action’, then only he can use this power.

Article 123 of the Indian Constitution grants the President of India certain Law-making powers i.e. to Promulgate Ordinances 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 and would be having same limitations. Thus, the following limitations exist:

When legislature is not in session: the President can only promulgate when either of the House of Parliament is not in session.
Immediate action is needed: the President though has the power of promulgating the ordinances but same cannot be done unless he is satisfied that there are circumstances that require him to take immediate action.
Parliament should approve: 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.

Parliament should approve 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.

B.R. Ambedkar, who stated that ordinance-making powers were necessary since existing law might be deficient to deal with a situation “which may suddenly and immediately arise”. According to him, it was necessary to: confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law” when the legislature was not in session.

Significance of Ordinance

Emergent Situation:- POSCO Amendment after Kathua Rape case, Criminal amendment after Nirbhaya.
Policy Paralysis: In order to ensure policy paralysis does not arise, ordinance are used.
Disruption in House: leads to delays thereby impacting legislative process
President is not a Rubber Stamp, which is displayed by ordinance making powers.

Issues around Ordinance

Deliberate bypassing of the legislature: For example, the Telecom Regulatory Authority of India (TRAI) was created in 1997 first by an ordinance and then by an Act of Parliament. Similarly, the Electricity Regulatory Commissions Ordinance was promulgated in 1998, for rationalising electricity tariffs (meaning hiking tariffs) when the government found it difficult to pass the concerned Bill in the legislature.
Infringement of principle of separation of powers: The power of the executive to issue ordinances goes against the principle of separation of powers as law making is the domain of legislature.
The satisfaction of the President: Some ordinances that were meant to smoothen legal hurdles caused by existing laws but whether there is an emergent condition or not. These included the Enemy Property (Amendment and Validation) Ordinance, 2016; Indian Medical Council (Amendment) Ordinance, 2016; Citizenship (Amendment) Ordinance, 2015; Coal Mines (Special Provisions) Ordinance, 2014, etc

Supreme Court Judgements:

D.C. Wadhwa v. State of Bihar, the State of Bihar’s promulgating and re-promulgating ordinances were challenged as there was promulgation of the same in “massive scale”. Between the year 1967-81, 256 ordinances were promulgated and then re-promulgated and some among them remain into existence for up to 14 years. Chief Justice P.N. Bhagwati observed: “The power to make an ordinance is to meet an extraordinary situation and it should not be made to meet political ends of an individual. Though it is contrary to democratic norm for an executive to make a law but this power is given to the President to meet emergencies so it should be limited in some point of time.”
Krishan Kumar Singh vs State of Bihar: The Supreme Court had already declared in 1986, in D.C. Wadhwa, that repeated re-promulgation of ordinances was unconstitutional. Now, in Krishna Kumar Singh v. State of Bihar, it goes deeper and concludes that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution.
R.C Cooper Case: Held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
T Venkata Reddy vs. State of Andhra Pradesh (1985): Ordinance making power of the President and the Governor was a legislative power, comparable to the legislative power of the Parliament and state legislatures respectively.

An ordinance would be made open to challenge on the following grounds:

It constitutes colourable legislation; or
It contravenes any of the Fundamental Rights as mentioned in our Constitution; or
It is violative of substantive provisions of Our Constitution such as an article 301; or
Its retrospectively is unconstitutional.

Comparison of ordinance Making power of President and Governor

Ordinance making power of President	Ordinance making power of Governor
The President can promulgate an ordinance only when both the Houses of Parliament are not in session or when either Lok Sabha or Rajya Sabha is not in session.	The Governor can promulgate an ordinance only when the legislative assembly is not in session or in case of existence of legislative council, when both the Houses of the state legislature are not in session or when either of the two Houses of the state legislature is not in session.
He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action.	He can promulgate an ordinance only when he is satisfied that circumstances exist which render it necessary for him to take immediate action.
The President’s power of ordinance is similar to the legislative power of the Parliament.The President can issue ordinances only on those subjects on which the Parliament can make laws.	Governor power for the ordinance is like the legislative power of the state legislature.He can promulgate ordinances only on those subjects on which the state legislature can make laws.
The ordinance introduced by him can be withdrawn anytime.	The ordinance introduced by him can be withdrawn anytime.
The President can never issue an Ordinance to amend the Indian Constitution.	The Governor can never issue an Ordinance to amend the Indian Constitution.
He needs no instructions for making an ordinance.	He cannot make an ordinance without the instructions from the President in three cases:If a bill containing the same provisions would have required the previous sanction of the President for its introduction into the state legislature.If he would have deemed it necessary to reserve a bill containing the same provisions for the consideration of the President.If an act of the state legislature containing the same provisions would have been invalid without receiving the President’s assent.