Presidential Veto over State Legislation

The President has veto power with respect to state legislation also. A bill passed by a state legislature can become an act only if it receives the assent of the governor or the President (in case the bill is reserved for the consideration of the President).

When a bill, passed by a state legislature, is presented to the governor for his assent, he has four alternatives (under Article 200 of the Constitution):

1. He may give his assent to the bill, or

2. He may withhold his assent to the bill, or

3. He may return the bill (if it is not a money bill) for reconsideration of the state legislature, or

4. He may reserve the bill for the consideration of the President.

Table 17.2 Veto Power of the President At a Glance

With Regard to Constitutional Amendment Bills

Can only be ratified (that is, cannot be rejected or returned)

Constitutional amendment bills cannot be introduced in the state legislature.

When a bill is reserved by the governor for the consideration of the President, the President has three alternatives (Under Article 201 of the Constitution):

1. He may give his assent to the bill, or

2. He may withhold his assent to the bill, or

3. He may direct the governor to return the bill (if it is not a money bill) for the reconsideration of the state legislature. If the bill is passed again by the state legislature with or without amendments and presented again to the President for his assent, the President is not bound to give his assent to the bill. This means that the state legislature cannot override the veto power of the President. Further, the Constitution has not prescribed any time limit within which the President has to take decision with regard to a bill reserved by the governor for his consideration. Hence, the President can exercise pocket veto in respect of state legislation also.

Table 17.2 summarises the discussion on the veto power of the

President with regard to Central as well as state legislation.

Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament. These ordinances have the same force and effect as an act of Parliament, but are in the nature of temporary laws.

The ordinance-making power is the most important legislative power of the President. It has been vested in him to deal with unforeseen or urgent matters. But, the exercises of this power is subject to the following four limitations:

1. He can promulgate an ordinance only when both the Houses of Parliament are not in session or when either of the two Houses of Parliament is not in session. An ordinance can also be issued when only one House is in session because a law can be passed by both the Houses and not by one House alone. An ordinance made when both the Houses are in session is void. Thus, the power of the President to legislate by ordinance is not a parallel power of legislation.

2. He can make an ordinance only when he is satisfied that the circumstances exist that render it necessary for him to take immediate action. In Cooper case11 , (1970), the Supreme Court held that the President’s satisfaction can be questioned in a court on the ground of malafide. This means that the decision of the President to issue an ordinance can be questioned in a court on the ground that the President has prorogued one House or both Houses of Parliament deliberately with a view to promulgate an ordinance on a controversial subject, so as to bypass the parliamentary decision and thereby circumventing the authority of the Parliament. The 38th Constitutional Amendment Act of 1975 made the President’s satisfaction final and conclusive and beyond judicial review. But, this provision was deleted by the 44th Constitutional Amendment Act of 1978. Thus, the President’s satisfaction is justiciable on the ground of malafide.

3. His ordinance-making power is coextensive as regards all matters except duration, with the law-making powers of the Parliament. This has two implications:

(a) An ordinance can be issued only on those subjects on which the Parliament can make laws.

(b) An ordinance is subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance cannot abridge or take

away any of the fundamental rights12 .

4. Every ordinance issued by the President during the recess of Parliament must be laid before both the Houses of Parliament when it reassembles. If the ordinance is approved by both the Houses, it becomes an act. If Parliament takes no action at all, the ordinance ceases to operate on the expiry of six weeks from the reassembly of Parliament. The ordinance may also cease to operate even earlier than the prescribed six weeks, if both the Houses of Parliament pass resolutions disapproving it. If the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks is calculated from the later of those dates. This means that the maximum life of an ordinance can be six months and six weeks, in case of non-approval by the Parliament (six months being the maximum gap between the two sessions of Parliament). If an ordinance is allowed to lapse without being placed before Parliament, then the acts done and completed under it, before it ceases to operate, remain fully valid and effective.

The President can also withdraw an ordinance at any time.

However, his power of ordinance-making is not a discretionary power, and he can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the prime minister.

An ordinance like any other legislation, can be retrospective, that is, it may come into force from a back date. It may modify or repeal any act of Parliament or another ordinance. It can alter or amend a tax law also. However, it cannot be issued to amend the Constitution.

The ordinance-making power of the President in India is rather unusual and not found in most of the democratic Constitutions of the world including that of USA, and UK. In justification of the ordinance- making power of the President, Dr. B.R. Ambedkar said in the Constituent Assembly that the mechanism of issuing an ordinance has been devised in order to enable the Executive to deal with a situation that may suddenly and immediately arise when the Parliament is not in session13. It must be clarified here that the ordinance-making power of the President has no necessary connection with the national emergency envisaged in Article 352. The President can issue an ordinance even when there is no war or external aggression or armed rebellion.

The rules of Lok Sabha require that whenever a bill seeking to replace an ordinance is introduced in the House, a statement

explaining the circumstances that had necessitated immediate legislation by ordinance should also be placed before the House.

So far, no case has gone to the Supreme Court regarding promulgation of ordinance by the President.

But, the judgement of the Supreme Court in the D.C. Wadhwa case14 (1987) is highly relevant here. In that case, the court pointed out that between 1967-1981 the Governor of Bihar promulgated 256 ordinances and all these were kept in force for periods ranging from one to fourteen years by promulgation from time to time. The court ruled that successive repromulgation of ordinances with the same text without any attempt to get the bills passed by the assembly would amount to violation of the Constitution and the ordinance so repromulgated is liable to be struck down. It held that the exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature.

Article 72 of the Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offence in all cases where the:

1. Punishment or sentence is for an offence against a Union Law;

2. Punishment or sentence is by a court martial (military court); and

3. Sentence is a sentence of death.

The pardoning power of the President is independent of the Judiciary; it is an executive power. But, the President while exercising this power, does not sit as a court of appeal. The object of conferring this power on the President is two-fold: (a) to keep the door open for correcting any judicial errors in the operation of law; and, (b) to afford relief from a sentence, which the President regards as unduly harsh.

The pardoning power of the President includes the following:

1. Pardon

It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.

2. Commutation

It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.

3. Remission

It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.

4. Respite

It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.

5. Reprieve

It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to

have time to seek pardon or commutation from the President.

Under Article 161 of the Constitution, the governor of a state also possesses the pardoning power. Hence, the governor can also grant pardons, reprieves, respites and remissions of punishment or suspend, remit and commute the sentence of any person convicted of any offence against a state law. But, the pardoning power of the governor differs from that of the President in following two respects:

1. The President can pardon sentences inflicted by court martial (military courts) while the governor cannot.

2. The President can pardon death sentence while governor cannot. Even if a state law prescribes death sentence, the power to grant pardon lies with the President and not the governor. However, the governor can suspend, remit or commute a death sentence. In other words, both the governor and the President have concurrent power in respect of suspension, remission and commutation of death sentence.

The Supreme Court examined the pardoning power of the President under different cases and laid down the following principles:

1. The petitioner for mercy has no right to an oral hearing by the President.

2. The President can examine the evidence afresh and take a view different from the view taken by the court.

3. The power is to be exercised by the President on the advice of the union cabinet.

4. The President is not bound to give reasons for his order.

5. The President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.

6. There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President.

7. The exercise of power by the President is not subject to judicial review except where the presidential decision is arbitrary, irrational, mala fide or discriminatory.

8. Where the earlier petition for mercy has been rejected by the President, stay cannot be obtained by filing another petition.

The Constitution of India has provided for a parliamentary form of government. Consequently, the President has been made only a nominal executive; the real executive being the council of ministers headed by the prime minister. In other words, the President has to exercise his powers and functions with the aid and advise of the council of ministers headed by the prime minister.

Dr. B.R. Ambedkar summed up the true position of the President in the following way15 :

"In the Indian Constitution, there is placed at the head of the Indian Union a functionary who is called the President of the Union. The title of the functionary reminds of the President of the United States. But beyond the identity of names, there is nothing in common between the form of government prevalent in America and the form of government adopted under the Indian Constitution. The American form of government is called the presidential system of government and what the Indian Constitution adopted is the Parliamentary system. Under the presidential system of America, the President is the Chief head of the Executive and administration is vested in him. Under the Indian 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. He is the symbol of the nation. His place in administration is that of a ceremonial device or a seal by which the nation’s decisions are made known. He is generally bound by the advice of his ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any secretary at any time. The President of the Indian Union has no power to do so, so long as his ministers command a majority in Parliament”.

In estimating the constitutional position of the President, particular

reference has to be made to the provisions of Articles 53, 74 and 75. These are:

1. The executive power of the Union shall be vested in President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution (Article 53).

2. There shall be a council of ministers with the Prime Minister at the head to aid and advise the President who 'shall’, in the

exercise of his functions, act in accordance with such advice (Article 74).

3. The council of ministers shall be collectively responsible to the Lok Sabha (Article 75). This provision is the foundation of the parliamentary system of government.

The 42nd Constitutional Amendment Act of 1976 (enacted by the Indira Gandhi Government) made the President bound by the advice of the council of ministers headed by the prime minister16. The 44th Constitutional Amendment Act of 1978 (enacted by the Janata Party Government headed by Morarji Desai) authorised the President to require the council of ministers to reconsider such advice either generally or otherwise. However, he 'shall’ act in accordance with the advice tendered after such reconsideration. In other words, the President may return a matter once for reconsideration of his ministers, but the reconsidered advice shall be binding.

In October 1997, the cabinet recommended President K.R. Narayanan to impose President’s Rule (under Article 356) in Uttar Pradesh. The President returned the matter for the reconsideration of the cabinet, which then decided not to move ahead in the matter. Hence, the BJP-led government under Kalyan Singh was saved. Again in September 1998, the President KR Narayanan returned a recommendation of the cabinet that sought the imposition of the President’s Rule in Bihar. After a couple of months, the cabinet re- advised the same. It was only then that the President’s Rule was imposed in Bihar, in February 1999.

Though the President has no constitutional discretion, he has some

situational discretion. In other words, the President can act on his discretion (that is, without the advice of the ministers) under the following situations:

(i) Appointment of Prime Minister when no party has a clear majority in the Lok Sabha or when the Prime Minister in office dies suddenly and there is no obvious successor.

(ii) Dismissal of the council of ministers when it cannot prove the confidence of the Lok Sabha.

(iii) Dissolution of the Lok Sabha if the council of ministers has lost its majority.

Table 17.3 Articles Related to President at a Glance

Article No. Subject-matter

52. The President of India

53. Executive power of the Union

54. Election of President

55. Manner of election of President

56. Term of office of President

57. Eligibility for re-election

58. Qualifications for election as President

59. Conditions of President’s office

60. Oath or affirmation by the President

61. Procedure for impeachment of the President

62. Time of holding election to fill vacancy in the office of President

65. Vice-President to act as President or to discharge his functions

71. Matters relating to the election of President

72. Power of President to grant pardons etc., and to suspend, remit or commute sentences in certain cases

74. Council of ministers to aid and advise the President

75. Other provisions as to ministers like appointment, term, salaries, etc.

76. Attorney-General of India

77. Conduct of business of the Government of India

78. Duties of Prime Minister in respect to furnishing of information to the President, etc.

85. Sessions of Parliament, prorogation and dissolution

111. Assent to bills passed by the Parliament

112. Union Budget (annual financial statement)

123. Power of President to promulgate ordinances

143. Power of President to consult Supreme Court

NOTES AND REFERENCES‌

1. This provision was added by the 70th Constitutional Amendment Act of 1992 with effect from June 1, 1995.

2. According to the 84th Constitutional Amendment Act of 2001, the expression 'population’ means the population as ascertained at the 1971 census, until the relevant figures for the first census taken after 2026 have been published.

3. Constituent Assembly Debates, Volume-IV,p. 733-736.

4. The presidential and vice-presidential Elections Act of 1952, as amended in 1997.

4a. Vide the Finance Act, 2018, with effect from 1st January, 2016. This Act amended the President’s Emoluments and Pension Act, 1951.

5. The President’s Emoluments and Pension Amendment Act of 2008.

6. No person except Dr. Rajendra Prasad has occupied the office for two terms.

7. So far two Presidents, Dr. Zakir Hussain and Fakhruddin Ali Ahmed, have died during their term of office.

8. For example, when President Dr. Zakir Hussain died in May, 1969, the then Vice-President, V.V. Giri was acting as the President. Soon after V.V. Giri resigned to contest the election of the President. Then the Chief Justice of India, M. Hidayatullah worked as the officiating President from 20 July, 1969 to 24 August, 1969.

9. For details in this regard, see Chapter 16.

10. 'Veto’ is a Latin word that connotes 'forbid’.

11. Cooper v. Union of India, (1970).

12. The definition of 'law’ contained in Article 13 expressly includes ordinances. See, Chapter 7.

13. Constituent Assembly Debates, Volume VIII, p. 213.

14. D.C. Wadhwa v. State of Bihar, (1987).

15. Constituent Assembly Debates, Volume VII, p. 32-34.

16. In the original Constitution, there was no such specific provision in Article 74.