President - Ordinance, Clemancy

Constitutional position of the President

Article 53 : Provides the executive powers to the president Article 74: there should always be a council of minister to aid and advice the president These should be read together His position is ceremonial But in extra ordinary situations he has discretionary powers Pocket veto suspensive veto reconsideration of the advices Right to know Inviting the leader of the largest political party when no body has the majority Parliamentary government: as the head of a state, he is a nominal head of the government. Article 123: Power of President to Promulgate ordinances Article 143: Power of President to consult Supreme court

Ordinance	Article 123 and 213 D C Wadhwa Case Krishna Kumar Singh V. State of Bihar
Ordinance	Introduced it in 1861 Article 123: on satisfaction of the President when one or both the house are not in session. on any legislative jurisdiction It is only the legislative power of the President and not a parallel power of legislation of the president Same force of law Except CA all can be allowed. Nehru and Ambedkar were against it initially
Why	for emergency circumstances
Critique	Violation of separation of powers Not available in UK and USA Misuse  Bihar case: in 1989 an ordinance to took over sanskrit students in the state for 7 times.
Factors responsible for spike in ordinance	issue of majority in the houses unwilling to negotiate with the opposition
Safeguard to prevent misuse	Timely approval 6 months and 6 weeks explanation before the house Judicial review
way forward	President: last resort When a matter is under the consideration of the parliamentary committees then before enforcing ordinance Govt. should take the point of view of the committees RC Cooper Case (1970): Decision of President could be challenged on grounds of by passing legislature DC Wadhwa Case (1987): Ordinance making power in exceptional situation Krishna Kumar singh vs. State of Bihar: Re promulgation of ordinance without being efforts made to refer the same to the legislature is a fraud on the constitution AK Roy case (1980):Ordinance making power is not beyond judicial review. It can not be used as a substitute power

Clemency or Pardoning powers (Article 72)	To correct possible error Emergence of new fact To deal with obsolete laws If sentence is unduly harsh Temporary respite and special conditions
Kehar Singh Case (1988)	Guideline laid down President can go into the merits of case and arrive at different conclusion
Issues	Misuse and abused Undue delay Secretive and hurried execution
Viability of Clemency Board of India to aid and advice As in Malaysia, USA	Not desirable Need amendments Advice cannot be made binding In case of conflict will generate unnecessary controversy MHA can have designated wing for it  A notional limit of 6 month could be