{"id":534,"date":"2024-05-09T22:50:39","date_gmt":"2024-05-09T17:20:39","guid":{"rendered":"http:\/\/knowledgekart.in\/blog\/?p=534"},"modified":"2024-07-16T16:11:51","modified_gmt":"2024-07-16T10:41:51","slug":"powers-of-president-and-governor-indian-polity-the-issue-of-delhi","status":"publish","type":"post","link":"https:\/\/knowledgekart.in\/blog\/powers-of-president-and-governor-indian-polity-the-issue-of-delhi\/","title":{"rendered":"Powers of President and Governor Indian Polity The Issue of Delhi"},"content":{"rendered":"

Powers of President and Governor Indian Polity The Issue of Delhi<\/h2>\n
\"Powers<\/a>
Powers of President and Governor Indian Polity The Issue of Delhi<\/figcaption><\/figure>\n

In a federal\u00a0<\/strong> <constitutional division of power b\/w centre and states>\u00a0<\/em>parliamentary democracy <<\/em><\/strong>real power vests in council of ministers which is accountable to lower house i.e LokSabha><\/em>\u00a0which is India, president and governor are only ceremonial heads of state, real power lies with elected govt headed by PM and CM<\/strong>. President and governors have to act in accordance with the aid and advice of council of ministers.<\/p>\n

So, are they mere rubber stamps? Do they have any discretionary powers? What\u2019s the nature of that discretionary power?<\/p><\/blockquote>\n

Art 74 and art 163 basically states that council of minister will aid and advice president and governor<\/strong>. In its various judgments supreme court interpreted that they have to act only upon and in accordance with the aid and advice of CoM, save in a few well known exceptional circumstances.<\/p>\n

Infamous 42nd amendment clarified this position and added that president shall act in accordance with aid and advice<\/strong> which was diluted by 44th amendment so that president can return back advice for reconsideration after which advice shall be binding. No changes were made wrt governor.<\/p>\n

So, it\u2019s clear by constitution (for president) as well as supreme court judgement (governor) that only in exceptional circumstances can they act as per their own discretion.<\/p>\n

Rule of thumb is,\u00a0a situation where the CoM is not in a position to tender unbiased or impartial advice to the president \/ governor can they use their own discretion.<\/p><\/blockquote>\n

Situation in which discretion can be used?<\/strong><\/h3>\n
    \n
  1. When no party has clear majority<\/strong>\u2013 Obviously caretaker govt would tend to advice president or governor to call it\u2019s candidate for govt formation,, they have to as per their discretion<\/li>\n
  2. When lower house has lost confidence in the govt<\/strong>\u2013 Obviously govt would not ask for dissolution, discretion has to be used<\/li>\n<\/ol>\n

    But the real power comes from the fact that there is no time limit specified within the constitution within which president\/ governor have to give assent to the bill. They may simply decide to sit on the bill and do nothing (pocket veto).<\/p><\/blockquote>\n

    In the case of governor there is more scope for discretion-<\/strong><\/p>\n

      \n
    1. For bills<\/strong>\u2013 governor can reserve bills for consideration of president. Obviously no govt will ask it\u2019s bill to be reserved, discretion has to be applied.<\/li>\n
    2. Recommendation of president\u2019s rule<\/strong>-Again no govt would advise imposition of presidential rule.<\/li>\n<\/ol>\n

      This reconsideration of bills become sore point b\/w governor and govt <<\/strong>against the federal spirit; president i.e union CoM taking decisions on state bills; governor is not even elected><\/em><\/p>\n

      Let\u2019s compare president and governor<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
      Issue<\/td>\nPresident<\/td>\nGovernor<\/td>\n<\/tr>\n
      Head<\/td>\nHead of the country, head of govt is PM<\/td>\nHead of a state, head of govt is CM<\/td>\n<\/tr>\n
      Executive power<\/td>\nAll executive action in his name<\/td>\nSame<\/td>\n<\/tr>\n
      Oath<\/td>\nPreserve, protect and defend the constitution<\/td>\nSame<\/td>\n<\/tr>\n
      Appointment<\/td>\nIndirect election<\/td>\nNominated by president; representative of union in states<\/td>\n<\/tr>\n
      Removal<\/td>\nImpeachment<\/td>\nPresident can remove him any time\/ pleasure principle<\/td>\n<\/tr>\n
      Grounds of removal<\/td>\nViolation of constitution<\/td>\nNo grounds mentioned<\/td>\n<\/tr>\n
      Advice of council of minster<\/td>\nBinding (42nd<\/sup> amendment), can return the advice once (44th<\/sup> amendment)<\/td>\nbinding save for exceptional circumstances (various supreme court judgements)<\/td>\n<\/tr>\n
      Ordinary bill<\/td>\nCan be sent for reconsideration once to parliament, bound to give assent after that<\/td>\nsame<\/td>\n<\/tr>\n
      Money bill<\/td>\nCan\u2019t send for reconsideration (after all president himself recommends the bill)<\/td>\nsame<\/td>\n<\/tr>\n
      Constitution amendment bill<\/td>\nHas to give his assent (24th<\/sup> amendment)<\/td>\nNo role<\/td>\n<\/tr>\n
      if governor reserves the bill for president (article 200)<\/td>\nCan assent\/ withhold assent or send the bill for reconsideration (except money bill which can\u2019t be resent) (article 201)<\/td>\nNo further role of governor<\/td>\n<\/tr>\n
      If house sends the bill back in the same form<\/td>\nNot bound to give assent <governor is bound to give assent after repassage><\/td>\nNo role<\/td>\n<\/tr>\n
      Clemency power<\/td>\nCan pardon death sentence and court martial sentences<\/td>\nCan\u2019t pardon death sentence, no role in military matters<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

      State Bills reserved for Presidents\u2019s consideration under the Constitution, may be classified as follows:<\/strong>\u2014<\/p>\n

      I. Bills which must be reserved for President\u2019s consideration <\/strong><\/p>\n

        \n
      1. bills derogating the powers of the High Court (art 200)<\/li>\n
      2. imposition of taxes on water or electricity in certain cases (Article 288)<\/li>\n
      3. during a Financial Emergency (art 360)<\/li>\n<\/ol>\n

        II. Bills which may be reserved for President\u2019s consideration and assent for specific purposes <\/strong><\/p>\n

        a). To secure immunity from operation of Articles 14 and 19<\/strong>. These are Bills for<\/p>\n

          \n
        1. acquisition of estates, etc. \u00a0(Article 31A(I (b))<\/li>\n
        2. giving effect to Directive Principles of State Policy (Article 31C).<\/li>\n<\/ol>\n

          (b) A Bill relating to a subject enumerated in the Concurrent List,<\/strong> to ensure operation of its provisions despite their repugnancy to a Union law or an existing law, by securing President\u2019s assent in terms of Article 254(2). <for instance Rajsthan govt took presidential consent for it\u2019s labour law which violated union legislation><\/em><\/p>\n

          (c) Legislation imposing restrictions on trade and commerce requiring Presidential sanction under the<\/p>\n

          III. Bills which may not specifically fall under any of the above categories, yet may be reserved by the Governor for President\u2019s consideration under Article 200.\u00a0<\/strong><\/p>\n

          They are reserved if the bill is deemed to be against broader national interest<\/strong><\/p>\n

          But what if even 2nd advice of CoM which enjoys the confidence of house is unconstitutional and thus comes in conflict with the oath of president i.e to preserve, protect and defend the constitution?<\/p><\/blockquote>\n

          Well, there\u2019s no precedence. Supreme court will have to take the call if in very exceptional circumstances, president can overrule the governor.<\/p>\n

          Appendix- <\/strong><\/p>\n

          Presidential election and removal<\/strong><\/p>\n

          Presidential election<\/strong> -indirect election<\/p>\n

          Method<\/b> \u2013 proportional representation by means of single transferable vote<\/p>\n

          Electoral college<\/b> \u2013 All the elected members of parliament plus elected members of legislative assembly of States and UT of Puducherry and NCT.<\/p>\n

          Value of vote of an MLA<\/i><\/b> = total population of state \/ total elected members in LA \u00d71000<\/p>\n

          Value of vote of an MP<\/b>= total value of votes of all MLAs of all states \/ total elected members of parliament<\/p>\n

          Note<\/b>\u00a0members of legislative council, nominated members of Legislative assembly, \u00a0Lok Sabha , Rajya Sabha do not participate <simple, how can those whom he nominates participate in his own election><\/em><\/p>\n

          Value of all the states plus UT votes = value of all<\/p><\/blockquote>\n

          Contrast this with election of Vice President in which all members of parliament (nominated as well as elected) participate but members of state assembles do not.<\/p>\n

          Removal of president<\/strong>\u2013 Impeachment, 2\/3rd (absolute 2\/3rd not present and voting) of both the houses vote for his removal.<\/p>\n

          Parliamentary v\/s presidential system<\/strong><\/p>\n

          In parliamentary system (India), council of minister is part of legislature<all ministers come from either LS or RS>. PM is head of govt while president is head of state.<\/p>\n

          In presidential system, President is the head of state as well as head of govt.\u00a0He is not part of legislature. He chooses his own cabinet and cabinet ministers can not be part of legislature. Recall John Kerry had to resign from Senate when he was appointed secretary of state.<\/p><\/blockquote>\n

          It\u2019s time for attempting some previous years IAS questions<\/strong><\/p>\n

          #1. Consider the following statements:<\/strong><\/p>\n

          1. The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
          \n2. All executive actions of the Government of India shall be expressed to be taken in the name of the Prime Minister.
          \nWhich of the statements given above is \/ are correct?<\/p>\n

          a. 1 only
          \nb. 2 only
          \nc. Both 1 and 2
          \nd. Neither 1 nor 2<\/p>\n

          #2. Which of the following are the discretionary powers given to the Governor of a State?<\/strong><\/p>\n

          1. Sending a report to the President of India for imposing the President\u2019s rule
          \n2. Appointing the Ministers
          \n3. Reserving certain bills passed by the State Legislature for consideration of the President of India
          \n4. Making the rules to conduct the business of the State Government
          \nSelect the correct answer using the code given below.<\/p>\n

          a. 1 and 2 only
          \nb. 1 and 3 only.
          \nc. 2, 3 and 4 only.
          \nd. 1, 2, 3 and 4<\/p>\n

          #3. In the context of India, which of the following principles is\/are implied institutionally in the parliamentary government?<\/strong><\/p>\n

          1. Members of the Cabinet are Members of the Parliament.
          \n2. Ministers hold the office till they enjoy confidence in the Parliament.
          \n3. Cabinet is headed by the Head of the State.
          \nSelect the correct answer using the codes given below.<\/p>\n

          a. 1 and 2 only
          \nb. 3 only
          \nc. 2 and 3 only
          \nd. 1, 2 and 3<\/p>\n

          #5. Which one of the following statements is correct?<\/strong><\/p>\n

          a. In India, the same person cannot be appointed as Governor for two or more States at the same time
          \nb. The Judges of the High Court of the States in India are appointed by the Governor of the State just as the Judges of the Supreme Court are appointed by the President
          \nc. No procedure has been laid down in the Constitution of India for the removal of a Governor from his\/her post
          \nd. In the case of a Union Territory having a legislative setup, the Chief Minister is appointed by the Lt. Governor on the basis of majority support<\/p>\n

          #5. Consider the following statements:<\/strong>
          \n1. The Executive Power of the union of India is vested in the Prime Minister.
          \n2. The Prime Minister is the ex officio Chairman of the Civil Services Board.
          \nWhich of the statements given above is\/are correct?
          \n(a) 1 only
          \n(b) 2 only
          \n(c) Both 1 and 2
          \n(d) Neither 1 nor 2<\/p>\n

          #6. There is a Parliamentary System of Government in India because the<\/strong><\/p>\n