Constitutional Law I
LLB 3rd, BALLB 5th By Dr.Syed Asima Refayi
President of India
The office of the President is very august and the Constitution attaches to it many
privileges and immunities. The President along with the Council of Ministers
headed by the Prime Minister comprises the Central executive which has been
dealt from Article 52 to 78 of the Constitution.
The President is the head of the state and the formal executive. All executive action
at the centre is expressed to be taken in his name. This power has been granted to
him under Article 53(1) which states that the executive power shall be vested in the
President and shall be exercised by him directly or through officers subordinate to
him.
The President of India is the head of state and first citizen of India and the
Supreme Commander of the Indian armed forces. In theory, the President
possesses considerable power. In practice, the President's role is comparable to
those of a constitutional monarch, and indeed the office replaced that of the British
monarch (represented by the Governor General) upon India's independence.
The Constitution only formally vests functions in the hands of the President. In
reality he has no function to discharge his discretion and or his individual
judgment. He has to act on ministerial advice and therefore the Prime Minister and
the Council of Ministers constitute the real and effective executive.
It is said that this structure of the central executive closely resembles the British
Model which functions on the basis of unwritten conventions. In India some of
these conventions have been written in the Constitution with regards to tenure,
appointment and collective responsibility of the Ministers. However, still some
matters have been left to conventions for example the accountability of the Cabinet
and the Minister for the acts of his subordinates.
The office of the president is created by Article 52 of the Constitution and the
matters of election are dealt from Article 54 to 60 of the Constitution. The
President is elected by the method of indirect election i.e. by an electoral college
consisting of elected members of both Houses of Parliament and of the State
legislative assemblies. The method of indirect election was to emphasize the
ministerial character of the executive that the effective power resides in the
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Ministry and not in the President as such. Secondly, the method of direct election
would have been very costly and energy consuming. There was also the fear that a
directly elected President may in course of time assume all the power.
The President derives its power from Article 53 which vests in him all the
executive authority including the Supreme Command of the Armed forces. There
are several other provisions in the Constitution which mention specific functions of
the President. Briefly the President has the power to appoint all important offices
including those of the Prime Minister and other Central Ministers, Governors,
Judges of the Supreme Court and the High Courts and even Election
commissioners. He even he has the authority to appoint commissions with respect
to the administration of scheduled areas. Most importantly the President is vested
with wide powers during Emergency under Article 352 to 360 of the Constitution
including suspension of Fundamental rights. Moreover every bill comes to him for
his assent and can either refuse to give his assent or send it back for
reconsideration.
ELECTION OF THE PRESIDENT
The office of the president is created by Article 52 of the constitution. The
president is elected not directly by the people but my method of indirect election.
. Eligibility
Article 58 of the Constitution sets the principle qualifications one must meet to be
eligible to the office of the President. A President must be:
A citizen of India
Of 35 years of age or above
Qualified to become a member of the Lok Sabha
A person shall not be eligible for election as President if he holds any office of
profit under the Government of India or the Government of any State or under any
local or other authority subject to the control of any of the said Governments.
Certain office-holders, however, are permitted to stand as Presidential candidates.
These are:
The current Vice-President.
The Governor of any State.
A Minister of the Union or of any State (Including Prime
Minister and Chief Ministers).
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In the event that the Vice-President, a State Governor or a Minister is elected
President, they are considered to have vacated their previous office on the date
they begin serving as President.
Under The Presidential and Vice-Presidential Elections Act, 1952, a candidate to
be nominated for the office of president needs 50 electors as proposers and 50
electors as seconders for his name to appear on ballot.
Conditions for the Presidency
Certain conditions, per Article 59 of the Constitution, debar an otherwise eligible
citizen from contesting the presidential elections. The conditions are:
1. The President 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 be deemed to have vacated his seat in that House on the
date on which he enters upon his office as President.
2. The President shall not hold any other office of profit.
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.
4. The emoluments and allowances of the President shall not be diminished
during his term of office.
Election process
Whenever the office becomes vacant, the new President is chosen by an electoral
college consisting of the elected members of both houses of Parliament (M.P.s),
the elected members of the State Legislative Assemblies (Vidhan Sabha) of all
States and the elected members of the legislative assemblies (M.L.A.s) of two
Union Territories (i.e., National Capital Territory (NCT) of Delhi and Union
Territory of Puducherry). The election process of President is more extensive
process than Prime Minister who is also elected indirectly (not elected by people
directly) by the Lok Sabha members only. Whereas President being constitutional
head with duties to protect, defend and preserve the constitution and rule of law in
a constitutional democracy with constitutional supremacy, is elected in an
extensive manner by the members of Lok Sabha, Rajya Sabha and state legislative
assemblies in a secret ballot procedure.
The nomination of a candidate for election to the office of the President must be
subscribed by at least 50 electors as proposers and 50 electors as seconders. Each
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candidate has to make a security deposit of ₹ 15,000 (US$220) in the Reserve
Bank of India. The security deposit is liable to be forfeited in case the candidate
fails to secure one-sixth of the votes polled.
The election is held in accordance to the system of Proportional representation by
means of the Single transferable vote method. The voting takes place by secret
ballot system. The manner of election of President is provided by Article 55 of
the Constitution.
Each elector casts a different number of votes. The general principle is that the
total number of votes cast by Members of Parliament equals the total number of
votes cast by State Legislators. Also, legislators from larger states cast more votes
than those from smaller states. Finally, the number of legislators in a state matters;
if a state has few legislators, then each legislator has more votes; if a state has
many legislators, then each legislator has fewer votes.
The actual calculation for votes cast by a particular state is calculated by dividing
the state's population by 1000, which is divided again by the number of legislators
from the State voting in the Electoral College. This number is the number of votes
per legislator in a given state. Every elected member of the parliament enjoys the
same number of votes, which may be obtained by dividing the total number of
votes assigned to the members of legislative assemblies by the total number of
elected representatives of the parliament.
Although Indian presidential elections involve actual voting by MPs and MLAs,
they tend to vote for the candidate supported by their respective parties.
Oath or affirmation
The President is required to make and subscribe in the presence of the Chief
Justice of India (or in his absence, the senior-most Judge of the Supreme Court), an
oath or affirmation that he/she shall protect, preserve and defend the Constitution
as follows:
I, (name), do swear in the name of God (or solemnly affirm) that I will faithfully
execute the office of President (or discharge the functions of the President) of the
Republic of India, and will to the best of my ability preserve, protect and defend
the Constitution and the law, and that I will devote myself to the service and well-
being of the people of the Republic of India.
Process of Impeachment
The President may be removed before the expiry of the term
through impeachment for violating the Constitution of India. The process may start
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in either of the two houses of the Parliament. The house initiates the process by
leveling the charges against the President. The charges are contained in a notice
that has to be signed by at least one quarter of the total members of that house. The
notice is sent up to the President and 14 days later, it is taken up for consideration.
A resolution to impeach the President has to be passed by a two-third majority of
the total number of members of the originating house. It is then sent to the other
house. The other house investigates the charges that have been made. During this
process, the President has the right to defend oneself through an
authorised counsel. If the second house also approves the charges made by special
majority again, the President stands impeached and is deemed to have vacated
his/her office from the date when such a resolution stands passed. No president has
faced impeachment proceedings so the above provisions have never been used.[52]
Under Article 361 of the constitution, though president cannot be summoned for
questioning except on his voluntary willingness to testify in the court in support of
his controversial deeds, the unconstitutional decisions taken by the president would
be declared invalid by the courts. The case would be decided by the courts based
on the facts furnished by the union government for the president's role. As clarified
by the Supreme Court in the case 'Rameshwar Prasad & Ors vs Union Of India &
Anr on 24 January 2006', though president cannot be prosecuted and imprisoned
during his term of office, he can be prosecuted after his term of office for the guilty
committed during his term of presidency as declared earlier by the courts.[53] No
president has resigned on impropriety to continue in office for declaring and
nullifying his unconstitutional decisions by the courts till now. No criminal case at
least on the grounds of disrespecting constitution is lodged till now against former
presidents to punish them for their unconstitutional acts though many decisions
taken during the term of presidency had been declared by Supreme Court as
unconstitutional, mala fides, void, ultra vires, etc.
Supreme Court shall inquire and decide regarding doubts and disputes arising out
of or in connection with the election of a President per Article 71(1) of the
constitution. Supreme Court can remove the president for the electoral
malpractices or upon being not eligible to be Lok Sabha member under
the Representation of the People Act, 1951. Subject to Article 71 (3), Parliament
made applicable rules/procedure to petition the Supreme Court for resolving
the disputes only that arise during the election process of the president but not
the doubts that arise from his unconstitutional actions/deeds or changing Indian
citizenship during the tenure of president which may violate the requisite election
qualifications
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The Office of the President falls vacant in the following scenarios:
1. On the expiry of his/her term
2. By reason of death
3. By reason of resignation
4. Removal by Supreme Court
5. Removal by impeachment
Article 65 of the Indian Constitution says that the Vice-President of India will have
to discharge the duties, if the Office falls vacant due to any reason other than
expiry of the term. The Vice-President reverts to office when a new President is
elected and enters office. When the President is unable to act because of absence,
illness or any other cause, the Vice-President discharges the President's functions
until the President resumes the duties.
A Vice-President who acts as or discharges the functions of the President has all
the powers and immunities of the President and is entitled to the same emoluments
as the President. It should be noted here that when the Vice-President discharges
the duties of the President, he/she does not function as the Chairperson of the
Rajya Sabha.
The Indian Parliament has enacted the law (The President (Discharge of Functions)
Act, 1969) for the discharge of the functions of the President when vacancies occur
in the offices of the President and of the Vice-President simultaneously, owing to
removal, death, resignation of the incumbent or otherwise. In such an eventuality,
the Chief Justice, or in his absence, the senior most Judge of the Supreme Court of
India available discharges the functions of the President until a newly elected
President enters upon his office or a newly elected Vice-President begins to act as
President under Article 65 of the Constitution, whichever is the earlier.[21]:96 For
example, in 1969, when President Zakir Husain died in Office, Vice-President V.
V. Giri served as the acting President of India. However, later, V.V Giri resigned
from both posts (Acting President of India and Vice-President of India) as he
became a candidate in the 1969 Presidential election in India. In this event, the
then Chief Justice of India, Justice Mohammad Hidayatullah served as the acting
President of India until the next President was elected.
President versus Chief Justice
President versus Chief Justice of India
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President Chief Justice of India/ Judiciary
The duties of President under his oath is to Similar to President to uphold the
protect, defend and preserve the Constitution and the laws (Third
constitution and the law Schedule of the constitution)[11]
Oath is taken in the presence of the Chief
In the presence of the President
Justice
Impeachment by each House of
Parliament supported by a majority of
Impeachment by Parliament with majority
the total membership of that House
of not less than two-thirds of the total
and by a majority of not less than two-
membership of each House of the
thirds of the members of that House
Parliament for violation of the
present and voting on the ground of
Constitution as per Article 61.
proved misbehavior or incapacity as
per Article 124 (4)
President can be removed by the Supreme
President can not remove judges once
Court per Article 71(1) for committing
appointed by him without
electoral malpractices and upon ceasing to
impeachment process per Article 124
possess the requisite qualifications to be
(4).
president.
Judiciary/Supreme Court is also an
An individual heads the autonomous autonomous institution represented by
institution of President. team of Supreme Court judges with
Chief justice as its chief.
President being head of Parliament,
Chief Justice/Supreme Court is also
Executive and supreme commander of
empowered by the constitution to
armed forces is fully empowered by the
repeal the unconstitutional activities of
constitution to fulfil his judicial
parliament and executive only after a
responsibility. He can also take the expert
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advise of Attorney General and also Chief fair trial.
Justice in performing his judicial role. It is
President's duty to ensure that every state's
governance is carried on in accordance
with the provisions of the constitution
under Articles 355 and 356.
President's prime duty is to prevent
unconstitutional decisions of union and
state governments and Parliament or state
assemblies by denying his compulsory
assent for making them in to applicable
laws. He is the foremost defender of the
Can intervene or nullify the unlawful
constitution who can pre-empt the
actions of union/state governments
unconstitutional activities of executive
and unconstitutional laws enacted by
and legislatures. The other duties of
the Parliament or a state legislative
President are just ceremonial as head of
after presidential assent only.
the country which are attached to him for
being protector, defender and preserver of
the constitution. The institution of
President becomes redundant if the
president is confining to other ceremonial
duties only.
President has constitutional immunity for
his unconstitutional, mala fides activities
during his/her tenure but liable for judicial Chief justice/Judges of Supreme Court
action / punishment for his are also immune from punishment for
unconstitutional activity after the term of not delivering correct judgments’ or
presidency. However per Article 361 (1), for their incompetence and mala fides.
President is answerable to a court However, Judges verdict can be
designated by either house of Parliament repealed by a higher level bench of
with two-thirds majority for the other judges.
investigation of a charge against him
under article 61.
President can not be recalled by the Chief justice/Judge of Supreme Court
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people of India for not fulfilling his also can not be recalled by the people
constitutional duties in case Parliament is of India in case Parliament is not
not impeaching the President or removed impeaching the judges.
by the Supreme Court.
President versus Prime minister
President versus Prime minister
President Prime minister/ Union cabinet
Swears allegiance to the Constitution
of India as by law established, swears
to uphold the sovereignty and
The duties of President under his oath is to
integrity of India and swears to do
protect, defend and preserve the
right to all manner of people without
constitution and the law
fear or favour, affection or ill-will
(Third Schedule of the
[11]
constitution)
Oath is taken in the presence of the Chief
In the presence of the President
Justice
Elected in an extensive manner indirectly
by the members of Lok Sabha, Rajya Elected indirectly by the Lok Sabha
Sabha, and state legislative assemblies in a members and secret ballot is not
secret ballot conducted by the Election mandatory.
Commission
Impeachment by Parliament with majority
of not less than two-thirds of the total
Steps down upon losing majority
membership of each House of the
support in Lok Sabha.
Parliament for violation of the Constitution
as per Article 61
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President can be removed by the Supreme
Court per Article 71(1) for committing
Similar to Prime minister and
electoral malpractices and upon ceasing to
ministers also.
possess the requisite qualifications to be
president
An individual heads the autonomous Union cabinet with Prime minister as
institution of President its chief is collectively responsible.
President being head of Parliament,
Rest of the governance of the union
Executive and supreme commander of
and reporting to the President on all
armed forces is fully empowered by the
important matters. Being leader of the
constitution to fulfil his judicial
majority/ ruling party in the
responsibility. He can also take the expert
Parliament, union cabinet takes lead
advise of Attorney General and also Chief
in law making by the parliament
Justice in performing his judicial role. It is
needed for policy finalisation on
President's duty to ensure that every state's
various aspects, annual budgets
governance is carried on in accordance
finalisation, planning and
with the provisions of the constitution
implementation, etc.
under Articles 355 and 356
Prime minister /union cabinet shall
aid and advise the President who
President's prime function is to prevent shall, in the exercise of his functions,
unconstitutional decisions of union and act in accordance with such advice as
state governments and parliament or state long as not unconstitutional. Prime
assemblies by denying his compulsory minister shall communicate to the
assent/government orders (GO) for making President all decisions of the Council
them in to applicable laws. He is the of Ministers relating to the
foremost defender of the constitution who administration of the affairs of the
can pre-empt the unconstitutional activities Union and proposals for legislation
of executive and legislatures. and on President's desire submit
related information. No minister shall
decide on any matter without the
council of ministers/ union cabinet
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approval per Article 78.
President has constitutional immunity for The union cabinet has constitutional
his unconstitutional, mala fides activities immunity from legal proceedings in
during his/her tenure but liable for judicial any court for their mala fide and
action / punishment for his unconstitutional advice tendered by
unconstitutional activity after the term of union ministers to the President
presidency per Article 74 (2).
President cannot escape from his
constitutional duty by citing constitutional
amendment to Article 74 (para 2 of 1)
which makes him to abide by the union
cabinet advice after sending for The union cabinet may escape from
reconsideration. As clarified by the the punishment or responsibility for
Supreme Court, the object of Article 74 (2) implementing unconstitutional laws
is only to make the question whether the citing Article 74 (2).
President had followed the advice of the
union cabinet or acted contrary thereto,
non-justifiable. Refer page Article
74#Court cases for more clarity
President cannot be recalled by the people Prime minister/ union cabinet cannot
of India for not fulfilling his constitutional be recalled by the people of India till
duties in case parliament is not impeaching the end of his term in case he is not
the President or removed by the Supreme losing majority support in Lok Shaba
Court or resigns on his own on moral or resigns on his own on moral
grounds grounds.
Important presidential interventions in the past
The President's role as defender of the Constitution and the powers as Head of
State, especially in relation to those exercised by the Prime Minister as leader of
the government, have changed over time. In particular, Presidents have made a
number of interventions into government and lawmaking, which have established
and challenged some conventions concerning Presidential intervention.
Proving majority in the parliament
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In 1979, the Prime Minister, Charan Singh, did not enjoy a Parliamentary majority.
He responded to this by simply not advising the President to summon
Parliament.[20] Since then, Presidents have been more diligent in directing
incoming Prime Ministers to convene Parliament and prove their majority within
reasonable deadlines (2 to 3 weeks). In the interim period, the Prime Ministers are
generally restrained from making policy decisions.
Proof of Majority to form a Government
Since the 1990s, Parliamentary elections have generally not resulted in a single
party or group of parties having a distinct majority, until the 2014 Lok Sabha
elections when BJP received a clear majority. In such cases, Presidents have used
their discretion and directed Prime Ministerial aspirants to establish their
credentials before being invited to form the government. Typically, the aspirants
have been asked to produce letters from various party leaders, with the signatures
of all the MPs who are pledging support to their candidature. This is in addition to
the requirement that a Prime Minister prove he has the support of the Lok
Sabha (by a vote on the floor of the House) within weeks of being sworn into
office.
Pocket veto of the Postal Bill
Since the Indian Constitution does not provide any time limit within which the
President is to declare his assent or refusal, the President could exercise a "pocket
veto" by not taking any action for an indefinite time. The veto was used in 1986 by
the then President Zail Singh over the Postal Bill. The President did not give assent
to the bill, arguing that its scope was too sweeping and would give the
government arbitrary powers to intercept postal communications indiscriminately.
Rashtrapati Bhavan communiqués
In the late 1990s, President K. R. Narayanan introduced explaining to the nation
(by means of Rashtrapati Bhavan communiqués), the thinking that led to the
various decisions he took while exercising his discretionary powers; this has led to
openness and transparency in the functioning of the President.
Offices of Profit Bill
The constitution gives the President the power to return a bill unsigned but it
circumscribes the power to send it back only once for reconsideration. If the
Parliament sends back the bill with or without changes, the President is obliged to
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sign it. In mid-2006, President Dr.A. P. J. Abdul Kalam sent back a controversial
bill regarding the exclusion of certain offices from the scope of 'offices of profit',
the holding of which would disqualify a person from being a member of
parliament. The combined opposition, the NDA, hailed the move. The UPA chose
to send the bill back to the president without any changes and, after 17 days,
Kalam gave his assent on 18 August 2006.
Sacking state governors
Arunachal Pradesh governor who was earlier appointed by the ruling party at the
centre has been sacked by the President after the Supreme Court has quashed his
unconstitutional acts. It is a good act on the part of President by giving a strong
message to all state governors that they should not come under the influence of the
ruling party at the centre to commit unconstitutional acts.
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