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UNION EXECUTIVE PART-1 PRESIDENT & VICE PRESIDENT By:ATRISHEKHAR -…
UNION EXECUTIVE PART-1 PRESIDENT & VICE PRESIDENT
By:ATRISHEKHAR
Powers and duties of the president:
Election of the President of India:
Article 54 - Electoral college
The President shall be elected by the members of an electoral col lege consisting of
The elected members of the Legislative Assemblies (M LAs) of the States.
In this article and Article 55, the state includes the National Capital Territory of Delhi and Union Territory of Pondicherry also.
The elected members of both Houses of Parliament; and
o It
does not include
Members of Legislative Councils or nominated members in the Parliament. The exclusion of Members of Legislative Councils is because Legislative Council don't exist in all states.
Even though the President is the Head of State at the central level, the state M LAs are included in the election, to avoid the situation where the President is just the 'creature of the ruling party at Centre' and remains as the 'pale shadow' of the Prime Minister.
Also, as the President is not merely
the head of the executive, but also is the symbol of unity and integrity of the nation.
N.B. Khare v. Election Commission (1957)
The article mandates that the election of the President must be held before the term of the former President expires
It was after the decision made in this case, the Constitution (11th Amendment) Act, 1961 was passed, amending Article 71 by inserting a new clause (4) which provided that the President or Vice-President’s election were not to be called for the question based on the existence of vacancies for whatever reasons existing among the electoral college members electing the President.
Why is the election of the President an indirect election?
It is an indirect election because the President is the ceremonial/nominal/ constitutional head
He is the De-jure head and the Prime Minister is the De-facto head
Hence a direct election for the President would result into a waste of taxpayers' time, money and energy, adding to the logistical nightmare for the Election Commission of India.
A direct election cou ld also lead to attitudinal problems where the President would sta rt to misread his constitutional position and assume de-facto powers thereby leading to confl icts between the President and the Prime Minister.
A direct election for the President would be fought on personal issues rather than real issues as the President would not enjoy powers to take effective decisions and hence there would not be a manifesto for the electorate. This would give way to conflicts and strife based on religion, caste, class etc
Furthermore, a direct election would compel him to compromise on the statesmanship he is supposed to show while holding the office of the President He may become prone to dirty politics, name calling, derogatory campaigning, etc.
Article 55 - Manner of election of President
(1) As far as practicable, there shall be
uniformity in the scale of representation
of the different States at the election of the President
(2) For the purpose of securing such uniformity among the States as well as parity between the States as a whole and the Union,
the number of votes which each elected member of Parliament and of the Legislative Assembly of each State
is entitled to cast at such election shall be determined in the following manner: -
(Value of vote of an MLA from UP is 208 and that from Sikkim is 7, due to difference in
population and hence the number of MLAs
(c) each elected member of either House of Parliament shall have such number of votes as may
be obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the States under sub-clauses (a) and (b) by the total number of the elected
members of both Houses of Parliament, fractions exceeding one-half being counted as one andother fractions being disregarded.
(Value of vote of has been fixed at 708 since 1997 presidential election.)
In 2022 presidential poll, value of vote of MP reduced to 700 from 708 due to absence of a legislative assembly in Jammu and Kashmir
The value of vote of a Member of Parliament for the first Presidential election in 1952 was 494.
It increased marginally to 496 in the 1957 presidential election, followed by 493 (1962), 576 (1967 and 1969).
In the 1974 presidential election, the value of vote of an MP was 723. It has been fixed at 702 for the presidential elections from 1977 to 1992.
Value of Vote of an M LA =Population of the state (1971 census) / : ::Total number of Elected members
(3) The election of the President shall be held in accordance with the system of proportional
representation (achieve votes above a certain quota) by means of the single transferable vote and the voting at such election shall be by secret ballot.
50%+1
Disputes regarding election of the President
Article 71 of our Indian constitution, tells us about the disputes regarding the election of the President or Vice President
must be administered and looked by the Supreme court
The election of a person as President cannot be challenged on the ground that the electoral college was incomplete
If the election of a person as President is declared void by the Supreme Court, acts done by him before the date of such declaration of the Supreme Court are not invalidated and continue to remain in force.
All doubts and disputes in connection with election of the President are inquired into and decided by the Supreme Court whose decision is final
ANALYSIS
As per some constitution experts, the system is neither proportional nor a single transferable vote
system.
It is not proportional as only one candidate is being elected; rather it is a majoritarian
system.
It is neither a single transferable vote system, as multiple votes get transferred after elimination of the candidate receiving the least first preference votes.
84th CAA ,2001 - ‘Population’ mean - 1971 census, until the relevant figures for the first
census taken after 2026 have been publish
Criticism of election system for President:
• It is a highly complex system.
• Value of votes of M LA from different states is different.
• It is neither proportional representation nor single transferable vote system.
The Returning Officer:
• For Lok Sabha or state assembly elections, generally the District Collector/Magistrate is the Returning officer.
• He/she performs the task of scrutinizing nomination papers of ca ndidates and fu rther rejects or accepts the same.
• He/she ensures that the election is conducted in a proper lawful manner, incl uding fair cou nting of votes, announcement of resu lts, etc.
• For President's election the Retu rning officer is the Secretary General of Lok Sabha and Secretary General of the Rajya Sabha, by rotation
The Election Commission comes out with the notification for the election of the President within 60 days prior to the expiry of the term of the serving President.
Colour Coding:
• Green Ballot Paper - MPs
• Pink Ballot Paper- MLAs
Proxy vote and NOTA are not allowed in the election of the President.
It is an indirect election because the President is the ceremonial/nominal/ constitutional head. He is the De-jure head and the Prime Minister is the De-facto head.
Hence a direct
election for the President would result into a waste of taxpayers' time, money and energy, adding to the logistical nightmare for the Election Commission of India.
Anti-defection law is not applicable in presidential election;
thus, electors are not bound to vote along party lines
Under Article 324 of constitution, Election Commission of India has authority to conduct presidential elections.
Article 56 -Term of office of the President
Article 58 - Qualifications for election as President
Prerequisite
The nomination of a candidate must be subscribed by at least -
50 electors as seconders.
50 electors as proposers and
Every candidate has to make a security deposit of Rs. 15,000 in the RBI
which would be forfeited if the candidates does not get at least 1/6th
of the votes required to win the election.
(1) No person shall be eligible for election as President unless he
(a) is a citizen of India;
(b) has completed the age of
thirty-five years, and
(c) is qualified for election as a member of the
House of the People.
S.S. Inamdar v. A.S. Andanappa (1971)
states that a person must not be holding any office of profit under the Union or state government to qualify to the position of the President of India.
explained the meaning of the term “office of profit”, which has not been defined anywhere
Article 59 -Conditions of President's office
(2) A person shall not be eligible for election as President if he holds any
office of profit
(1) shall not be a member of either House of Parliament or of a House of the Legislature of any State,
and if a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall vacated his seat in that
House on the date on which he enters upon his office as President.
(3) The President shall be entitled without payment of
rent to
the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be
determined by Parliament
by law and until provision in that behalf is so made, such emoluments, allowances and
privileges as are
specified in the Second Schedule
THE PRESIDENT'S EMOLUMENTS AND
PENSION ACT, 1951
• Act of the parLiament which
determines the emoulments,allownces and previleges
•Any changes in the emoluments of
the President have to ammend this Act
(4) The emoluments and allowances of the President shall not be diminished during his term of office
Note : The President does pay tax on his income. However, there is one way through which the
President can avoid paying income tax
As per the Voluntary Surrender of Salaries (Exemption of
Taxation) Act, 1961, if the President chooses to surrender his salary to the Consolidated Fund of India,he would be exempted from taxation.
Oath by the President
Article 61. Procedure for impeachment of the President
Charge
only for violation of the
Constitution.
Charge must be
signed by at least one-fourth
of the total membership of the
House.
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The impeachment of the President is a quasi-udicial procedure.
The power of impeachment of the President is
vested in the Parliament.
Who can participate in the procedure?
Nominated members of either ‘House of
Parliament’ can participate in the impeachment of the President though they do not participate in his
election.
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Article 62 - Time of holding election to fill vacancy in the office of the President and the term of
office of person elected to fill casual vacancy
Vacancy in the office of the President:
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An election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term.
No such proceedings have been initiated for any president in Indian history
Under Article 60, the President takes oath/affirmationin the presence of the Chief Justice of India
To preserve, protect and defend the Constitution and law.
To faithfully execute the duties of his office.
To devote himself to the service and well being of the people of India
In absence of the Chief Justice of India, a senior-most
judge of the Supreme Court can administer the oath
The President is entitled to many privileges and immunities.
He enjoys personal immunity from legal liability for his official acts.
During his term of office, h
e is immune from any
criminal proceedings, even in respect of his personal acts.
He cannot be arrested or imprisoned. .
However, after giving two months’ notice, civil
proceedings can be instituted against him during his term of office in respect of his personal acts.
(1) The President shall hold office for a
term of five years
from the date on which he enters upon his
office: Provided that-
(a) the President may, by writing under his hand addressed to the Vice-President, resign his office;
(b) the President
may, for violation of the Constitution, be removed from office by impeachment
in the manner provided in article 61.
(c) the President shall, notwithstanding the expiration of his term,
continue to hold office until his successor enters upon his office.
(2) Any
resignation addressed to the Vice-President
under clause (a) of the proviso to clause (1) shall forthwith be
communicated by him to the Speaker of the House of the People.
Article 57 - A person who holds, or who has held, office as President shall, subject to the other
provisions of this Constitution be eligible for re-election to that office.
Article 53
The executive power of the Union shall be vested in the President and shall be exercised by him
either directly or through officers subordinate to him
in accordance with this Constitution.
Executive power denotes the power to carry out business of the government. It also denotes the
power that remains after removing the judicial and legislative powers
from the total corpus of the state's power.
Article 74
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:
Provided that the President may require the Council of Ministers
to reconsider such advice
, either
generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
However, the 44th Constitutional Amendment Act, 1978, mentioned that the President
can send back the advice for reconsideration
. After reconsideration, he shall act on the revised advice of the CoM
The question whether any, and if so
what, advice was tendered by Ministers to the President shall
not be inquired into in any court.
As per the
42nd Constitutional Amendment Act, 1976
, the
President was bound to act as per the aid and advice
of the council of ministers. It codified the obvious.
S.P. Gupta v. President Of India And Ors. (1982) IN THIS Supreme Court of India decided on the binding nature of the advice given by the Council of Ministers
The Court held that while the counsel provided by the Council of Ministers to the President would be protected from legal scrutiny, the correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India was not protected, simply because it was mentioned in the exhortation.
Additional Information:
However
it must be understood that the President is not bound by every advice
of the Council of Ministers.
He is guided by his oath of preserving, protecting and defending the constitution if the advice is unconstitutional.
The president even
though does not have a legal authority, but has a moral authority.
For eg. -Former President KR Narayanan in 1997 sent back the advice of the Council of Ministers to
impose President's Rule in Uttar Pradesh.
The President appoints the following members of the
Executive:
The Prime Minister .(A-75)
All other members of the Council of Ministers, on the advice of the Prime Minister. (A-75)
Attorney-General of India. (A-76)
The Comptroller and Auditor General.(A-148)
The Chief Election Commissioner and other Election Commissioners.(A-324)
The Chairman and Members of the Union Public Service Commission (UPSC).(A-316)
The Chairman and Members of the Joint Public Service Commission (JPSC).(A-316)
The Chairman and Members of Finance Commission.(A-280)
The Governors of states (A-155)
Administrators to Union Territories.(A-239)
The inter-state council to promote center-state cooperation.(A-263)
Executive Power
Administrative powers
Article 77: Conduct of business of the Government of India
(3) The President shal l 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.
Government of India (Transaction of Business) Rules, 1961 and Government of India (Allocation of Business) Rules, 1961 are the rules under which ministries are created, abolished, divided, amalgamated, etc
These rules are framed under Article 77(3).
(1) All executive action of the Government of Ind ia shal l be expressed to be taken in the name of
the President.
(2) Orders and other instruments made and executed in the name of the President shal l be
authenticated in such manner as may be specified in rules to be made by the President, and the valid ity of an order or instrument which is so authenticated shal l not be cal led in question on the
ground that it is not an order or instrument made or executed by the President
Right to seek information
Article 78 - Duties of Prime Minister as respects the furnishing of information to the President, etc-
It shall be the duty of the Prime Min ister-
(a) to commun icate to the President all decisions of the Cou ncil of Min isters relating to the admin istration of the affairs of the U nion and proposals for legislation
(b) to furnish such information relating to the administration of the affairs of the Un ion and proposals for legislation as the President may call for;
(c) if the President so req uires, to submit for the consideration of the Council of Min isters any matter on which a decision has been taken by a Minister but which has not been considered by the Council.
Article 75: Other provisions as to Ministers: -
(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appoi nted by the President on the advice of the Prime Minister
(lA) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen percent. of the total number of members of the House of the People.
(1B) A member of either House of Parliament belonging to any political party who is disqualified for being a member of that House under paragra ph 2 of the Tenth Sched ule shall also be disqualified to be appoi nted as a Minister under clause (1) for duration of the period
com mencing from the date of his disqualification till the date on which the term of his officeas such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected, as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected,
(2) The Ministers shall hold office during the pleasure of the President.
Pleasure Doctrine:
• According to Dr. Ambedkar, the pleasure doctrine stands on two pillars -
• Confidence of the house ensures that the government enjoys majority in the house
• Purity of administration ensures that the administration is clean, non-corrupt, lawful and rules based.
• The president can act on evidence against the Governor, the Council of Ministers as well as the
Prime Minister, depending on the graded scale of the strength of evidence with the highest scale of
evidence for the Prime Minister and the lowest for the Governor
The doctrine of pleasure is also followed in India. Since the President of India is the Executive Head of the Union and he enjoys the same position as the Crown enjoys in England, the President has been vested with the power to remove a civil servant at any time under this doctrine.
While this doctrine has been adopted in India it has not been blindly copied in the same manner as it is followed in England and there are some modifications which exist in India’s adoption of this doctrine from that of England. In India, Article 310 of the Indian Constitution embodies the provision for this doctrine.
According to Article 310, except for the provisions provided by the Constitution, a civil servant of the Union works at the pleasure of the President and a civil servant under a State works at the pleasure of the Governor of that State. This implies that the operation of the Doctrine of Pleasure can be limited by constitutional provisions. Under the constitution, the following are excluded from the operation of this doctrine:
Judges of the Supreme Court;
Judges of the High Courts;
Chief Election Commissioner; and
Comptroller and Auditor General of India.
(3) The Council of Ministers shall be collectively responsible to the House of the People.
(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the pu rpose in the Third Schedule
(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall atthe expiration of that period cease to be a Minister
(6) The salaries and al lowa nces of Min isters shall be such as Parl iament may from time to time by law determine and, until Parl iament so determines, shall be as specified in the Second
Article 244
The power to declare any area as a ‘Scheduled Area’ is bestowed on the President of India and the parliament is authorized to legislation.
Article 239
Administratio of UTs buy him or by an admininistrator appointed by him
Article 340
Can appoint commision for investigation of condition of SC/ST/OBC
Article 263
Apoints the INTER STATE COUNCIL to promote centre state and inter state cooperation in public interest
EMERGENCY POWERS
Pardoning Powers
Military Powers
Diplomatic Powers
President is the Head ofstate and often represents India in international affairs.
He appoints India's diplomatic missions abroad like Ambassadors, High Com missioners, etc.
He also receives diplomatic missions from abroad.
Financial Powers
Introduction of Money bills
Causes to be laid before the Parliament the annual financial statement
No demand for a grant can be made except on his recommendation
Can make advances out of the contingency fund of India
Constitutes a finance commission after every five years(A-280)
Judicial Powers
Appoints the Chief Justice and the judges of Supreme Court and high courts. A-124/A-217
Can seek advice from the Supreme Court on any question of law or fact (A-143)
Legislative Powers
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President of India is the supreme commander of the defense forces.
He/she ca n declare war, conclude peace on the advice of the Cou ncil of Ministers headed by the Prime Min ister.
Pardoning Powers of President – Article 72
Pardon - Completely absolves the convict from all sentences, punishments and disqualifications.
Reprieve - A stay of the execution of a sentence (especially that of death) for a temporary period -
To enable the convict to have time to seek pardon or commutation from the President.
Respite - Awarding a lesser sentence in place of one originally awarded due to some special fact, like physical disability of a convict or the pregnancy of a woman offender.
Remission - Reducing the period of sentence without changing its character
Commutation- Substitution of one form of punishment for a lighter form
Pardoning power of the President is independent of the judiciary – it is an executive power. The President while exercising this power doesn’t sit as a Court of Appeal
CASES & ISSUES
Maru Ram case, 1980
Not a discretionary power - To be exercised in accordance to the aid and advice of the COM
Subject to judicial review - Power cannot be exercised in an arbitrary manner
Kehar Singh Case (1988)
Subjected to JR – Can not be malafide or irrational
Person does not have any right to pardon
Person has no right for oral hearing
President is not bound to give reasons for his order
Shatrughan Chauhan vs. Union of India (2014)
Constitutional obligation of the President and Governors to dispose off mercy petitions of convicts.
Right to seek mercy is a constitutional right
No time limit can be prescribed - Inordinate delay can be a justified ground for commutation of death penalty into life imprisonment.
SC made observation on Centre’s claim that the President, and not Tamil Nadu Governor, has exclusive power to decide Rajiv Gandhi assassination convict A.G. Perarivalan's plea
A three-judge Bench led by Justice L. Nageswara Rao said the government's argument, if taken on face value, would leave Article 161 (the constitutional power of Governors of States to grant pardon) a "dead-letter".
"So, according to you, the power to grant pardon is exclusively that of the President... Well, in that case, pardons granted by Governors throughout the history of this nation across States are all null and void?" Justice B.R. Gavai quizzed Additional Solicitor General K.M. Natraj, appearing for the Centre.
Epuru Sudhakar v. Government of A.P. (2006)
Supreme Court of India laid down the grounds for challenging judicial review of the President or the Governor’s order under Article 72 or Article 161 of the Constitution
The order has been delivered without application of mind and reasonable consciousness;
The order is mala fide by nature;
The order has been passed on irrelevant grounds;
While passing the order, the relevant materials were kept out of consideration;
The order is arbitrary in nature.
The Supreme Court of India while deciding the case of
State of Rajasthan v. Union of India (1977)
provided two necessary grounds that could be only invoked while challenging the President’s satisfaction under Article 356 of the Indian Constitution.
The grounds are provided hereunder;
If the President’s satisfaction have violated certain constitution provisions;
The President’s satisfaction is mala fide and wholly based on extraneous grounds.
352
356
360
About Governor’s appointment and removal
Under Article 155 and 156, Governor is appointed by President and holds office during pleasure of President.
If this pleasure is withdrawn before completion of five-year term, Governor has to step down.
There are no provisions laid down in Constitution for the manner in which Governor and state must engage publicly when there is a difference of opinion.
VICE PRESIDENT
The Vice President is the second highest constitutional office in India. He/She serves for a five-year term, but can continue to be in office. irrespective of the expiry of the term, until the successor assumes office.
The Vice President may resign his office by submitting his resignation to the President of India. The resignation becomes effective from the day it is accepted.
The Vice President can be removed from office by a resolution of the Council of States (Rajya Sabha), passed by a majority of its members at that time and agreed to by the House of the People (Lok Sabha). A resolution for this purpose may be moved only after a notice of at least a minimum of 14 days has been given of such an intention.
The Vice President is the ex-officio Chairperson of the Council of States (Rajya Sabha) and does not hold any other office of profit.
ELIGIBILITY
Should be a citizen of India.
Should have completed 35 years of age.
Should be qualified for election as a member of the Rajya Sabha.
Should not hold any office of profit under the Union government or any state government or any local authority or any other public authority.
Electoral College:
As per Article 66 of the Constitution of India, the Vice-President is elected by the members of the Electoral College.
Electoral College consists of
Elected members of Rajya Sabha.
Nominated members of Rajya Sabha.
Elected members of Lok Sabha.
Election Procedure
As per Article 68 of the Constitution, the election to fill the vacancy caused by the expiration of the term of office of the outgoing vice-president is required to be completed before the expiration of the term.
Article 324 of the Constitution read with the Presidential and Vice-Presidential Elections Act, 1952 and the Presidential and Vice-Presidential Elections Rules, 1974, vests the superintendence, direction and control of the conduct of election to the office of the Vice-President of India in the Election Commission of India.
The notification for election shall be issued on or after the sixtieth day before the expiration of the term of office of the outgoing Vice-President.
Since all the electors are members of both Houses of Parliament, the value of the vote of each Member of Parliament would be the same i.e.1 (one).
The Election Commission, in consultation with the Central Government, appoints the Secretary-General of Lok Sabha and Rajya Sabha, by rotation, as the Returning Officer.
Accordingly, the Secretary-General, Lok Sabha will be appointed as the Returning Officer for the present election to the Office of the Vice-President of India.
The Commission also decides to appoint Assistant Returning Officers in Parliament House (Lok Sabha) to assist Returning Officers.
As per Rule 8 of the Presidential and Vice-Presidential Elections Rules, 1974, polls for the election are taken in the Parliament House.
Powers Of The Vice-president
The vice-President acts as the ex-officio chairman of the Rajya Sabha and his powers and functions are similar to those of the speaker of the Lok Sabha.
In the event of the president's inability to work due to any reason or a vacancy in the office of the president due to any reason, he can act as the president. The office was created to maintain continuity in the Indian state, however, this is only for 6 months till the next president is elected.
The Vice President while discharging duty as President, should not preside over Rajya Sabha.
He is not a member of the Rajya Sabha, he doesn’t have the right to vote. He can only give a “casting vote”.
Criticism Of The Post Of Vice President
The post of Vice President was taken from the American Constitution. However, his powers are not similar to his American counterpart.
The Vice President doesn’t become the President automatically when the post of President is vacant due to his demise or poor health like the American Vice President. But he just discharges the duty of the President till the elections are held.
The Vice President is not vested with any real powers similar to the President, but only acts as the Ex-Officio Chairman of Rajya Sabha which can be elected from the members of the house like the Speaker in the Lok Sabha.
The removal procedure of the Vice President is not as complex as the impeachment of the President.
Part V of the Constitution of India discusses the office of the Vice-President of India. Articles 63 to Article 73 deal with the qualifications, election, and removal of the Vice-President of India.
Article 63 states that there shall be a vice-president of India
Article 64 states that the Vice-President shall be the ex-officio Chairman of the Rajya Sabha
Article 65 states that the Vice-President shall act as President in the vacancy of the office of the President until the new President is elected.
Article 66 deals with the provision of the Election of the Vice-President.
Article 67 mentions the Term of Office of Vice-President.
Article 68 states regarding the Vacancy of office of the Vice-President.
Article 69 deals with Oaths & Affirmation by the Vice-President.
Article 71 deals with matters relating to or connected with, the election of a President and Vice-President.
