Ashna Sisodia is teaching live on Unacademy Plus
Course: The Union ( Part V) Lesson: Powers of the President Presented by : Ashna Sisodia
ORDINANCE-MAKING POWER OF THE PRESIDENT 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. OIt can alter or amend a tax law also. It cannot be issued to amend the Constitution.
ORDINANCE-MAKING POWER OF THE PRESIDENT 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 repromulgation of ordinance by the President.
D C Wadhwa case (1987): Between 1967-1981 the Governor of Bihar promulgated 256 ordinances all were kept in force for periods ranging from one to fourteen years by repromulgation 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. Olt held that the exceptional power of law-making through ordinance cannot be used as a substitute for the legislative power of the state legislature.
Pardoning Power of the President 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 Otwo-fold objective: 1. to keep the door open for correcting any judicial errors in the operation of lavw 2. to afford relief from a sentence, which the President regards as unduly harsh.
Pardoning Power of the President Pardon It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications. 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. 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. 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, . Reprieve lt 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.
Pardoning Power of 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. Difference between the pardoning power of the governor from that of the President : The President can pardon sentences inflicted by court martial (military courts) while the governor cannot. 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. 1. 2. However, the governor can suspend, remit or commute a death sentence. both the governor and the President have concurrent power in respect of suspension, remission and commutation of death sentence.
Pardoning Power of the President The Supreme Court examined the pardoning power of the President under different cases and laid down the following principles: The petitioner for mercy has no right to an oral hearing by the President. The President can examine the evidence afresh and take a view different from the view taken by the court. The power is to be exercised by the President on the advice of the union cabinet *The President is not bound to give reasons for his order.
Pardoning Power of the President The President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake. There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President. 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. where the earlier petition for mercy has been rejected by the President, stay cannot be obtained by filing another petition
CONSTITUTIONAL POSITION OF THE PRESIDENT The President has been made only a nominal executive; the real executive being the council of ministers headed by the prime minister. The President has to exercise his powers and functions with the aid and advise of the council of ministers headed by the prime minister. 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.