PRESIDENT

India having declared itself as a ‘Republic’ in the Preamble to the Constitution has
established a non-hereditary head of the state in the form of the President.

The constitution makes President mandatory in the constitutional scheme of India by

as Article 52 states that there shall be a President of India. Article 53 vests all executive
power in the President who can exercise it directly or through his subordinates, in
accordance with the constitution. He is the head of the state and all executive actions
are taken in his name (Article 77).

Election of the President:

He is elected through indirect elections by an electoral college on the basis of system

of proportional representation by means of single transferable vote.

Indirect Elections: President of India, though being the head of the state, is not
elected directly by the people. The constitution makers chose the indirect mode of
Presidential election keeping in mind the spirit of cabinet/ ministerial/ parliamentary
form of government. Since, in our constitutional scheme the Council of Ministers
headed by the Prime Minister is the real executive, it would have been totally
incongruous to elect the President directly through adult suffrage by spending
enormous money and energy, only to not give him any real substantive power.
Secondly, directly elected president may have with course of time emerged as a
parallel center of power to the Prime Minister, thereby causing constitutional chaos.

By whom? Article 54 of the Indian Constitutions states that President Will be elected
by an electoral college.

Salient features of electorate college (2017 question)

1. Composition of the electorate college –

a) elected members of the both the Houses of Parliament (nominated members
NOT included)
b) elected members of the Legislative Assemblies of the State (Legislative
Councils of the state, if any, NOT included)
c) elected members of the Legislative Assemblies of the National Capital territory
of Delhi and Puducherry. (No other Union Territory included)

The constitution makers did now want the president to be elected by the narrow basis
of Parliament alone, as the majority party at the center would choose a candidate of
their liking. To ensure he commands national consensus elected MLAs were also
included.

2. Manner of Election: Article 55(3) states the Presidential election will be through
system of proportional representation through means of single transferrable vote.
This system ensures that the winning candidate is the most preferred one as he wins
by the absolute majority of votes. Further it also helps in reducing wastage of votes.
3. Parity in election process: Article 55 provides for a formula through to ensure, as
far as possible that -
a) There should be a uniformity in the scale of representation of the different
states in the election. (vote of MLA of 1 state = vote of MLA of the 2 state)
b) Parity should be maintained between the representation of the states as a
whole and the Union. (Vote of MPs = votes of all the MLAs)

President is not only the head of the Union but is also head of the state (comprising of
different states). Since a Nation is represented both by the Parliament and also be the
various states combined, it was in order to give both the Union and the states equal
voting.
Also, since the aggregate votes of the states should be, as far as possible equal to the
population of the nation, formula has been devised to ensure uniformity by scaling the
value of votes of MLAs from different states based on the respective state’s population.

4. Election cannot be suspended on the ground that there exists a vacancy in the
electoral college - Article 71(4). Even if a state assembly has been dissolved u/a 356,
that shall not be a ground to postpone /cancel the Presidential election (Re
Presidential Poll case)

Disputes concerning Presidential election will be decided by the Supreme Court

[Article 71(1)]. If the election is declared void, acts done by the Presidents in exercise
of the powers and duties of his office shall not be invalidated and continue to remain
if force. [Article 71(2)].

Impeachment

The President of India can be removed from his office before the expiry of his term for
the violation of the constitution (only) by the process of impeachment. (Article 56)

The Process of impeachment as provided u/a 61 is as follows -

1. The motion of prefer a charge maybe initiated by either house of the
Parliament.
2. The motion must be supported by not less than 1/4th of the total members of
the house.
3. Fourteen days’ notice of the intention to move the motion is given to the
President
4. The motion is to be passed by not less than 2/3rd majority of the total
membership of the house.
5. The house which initiates the charge, will not be the one to investigate it. Hence
the charge is then investigated by the other house. Investigation can be done
by the house itself or through some other agency. The President has the right
to be appear and be represented at such investigation.
6. If the house which investigates find the President guilty, they must pass a
resolution to that effect by majority of not less than 2/3 of the total membership
of that house.
7. The resolution shall have the effect of removing the President on the day it is
passed.
Impeachment of President is a political determination to be made by the Parliament
as the term violation of the constitution has not been defined anywhere.

Presidential Privileges:

The office of the President is an august one and has many privileges attached to it.
• As per article 361(1), he is not answerable to any court for any act done by
him while exercising the power and duty of his office.
• No court can compel him to exercise any power or duty. Nor can the court issue
his office any writ, direction or mandate. In case of his official acts he has an
absolute immunity from the process of courts and no court can compel him to
defend his action.
• However, the immunity is personal to the President. For any act done by him,
it is the government of India who is brought in front of the court. When
any official act of the President is challenged on the ground of it being mala
fide, the immunity u/a 361 extends to president and the validity of the act has
to be deafened by the Government because President acts in aid and advice
of the CoM.
• However, the conduct of President can be brought into question during
impeachment proceedings against him.
• No criminal proceedings whatsoever can be instituted against the President
during his term of office [article 361(2)]
• No process of for arrest or imprisonment of the President can issue from
any court during his term of office.
• For his personal acts done during the course of his office, no civil proceedings
can be instituted unless a two months’ notice in writing has been served on
him [ Article 361(4)]

Relationship with Council of Ministers / Discretion of the President

• Article 53(1) vests the executive power of the Union of India in the President.
However, since India follows Parliamentary form of government, the real
executive power lies with the Council of Ministers headed by the Prime Minister.
(Ram Jawaya Kapoor V. State of Punjab)
• Under article 77 all executive actions are taken in the name of the president,
however in reality as per Article 74(1), the President SHALL carry out his
functions with the aid and advice of the CoM (42nd Amendment Act, 1976).
Moreover, the courts cannot inquire into the advice so tendered by the CoM to
the president [Article 74(2)]
• U/a 75(1) President appoints the PM and other CoM on advice of the PM. Article
75(2) makes the ministers individually responsible to the President as they hold
the office during his pleasure, and this in turn helps to achieve collective
responsibility of the CoM.
• Why made binding? – Article 75(3) makes the CoM collectively responsible to
the Lok Sabha. However, there is no provision in the constitution which makes
President answerable to the Legislature. Therefore, it will be meaningless to
 hold the CoM answerable for their policy decisions without giving them the
necessary authority enforce the decisions.
• What happens if the advice is rejected? Article 74(1) is not legally
enforceable because Article 361 bans any such legal action on the acts done
by the President while dispensing the powers and duties of his office. However,
such a situation can lead to constitutional chaos as firstly, either the CoM/ PM
may resign creating a vacuum whereby the President then has to find a
government that can command the majority and secondly impeachment
proceedings against him can be initialed u/a 61 for violating the constitution.
Additionally, the President will also not be able to incur any expenditure in case
of conflict with CoM because they command majority in Lok Sabha which in
turns controls the executive purse.
• Article 74(1) is a mandatory provision and at no point can President dispense
is function without the Council of Ministers. Applying this rationale, the SC in
U.N. Rao v Indira Gandhi held that it is essential to have a CoM to aid and
advise the President even when the Lok Sabha has been dissolved.
• In Shamsher Singh v State of Punjab, the court held that wherever the
constitution requires the satisfaction of the President, it is not his personal
satisfaction, but it is satisfaction in the constitutional sense under the cabinet
form of government i.e. satisfaction of CoM.
• In the above-mentioned case, Justice Krishna Iyer in his separate concurring
judgment stated that there are few exceptions to the above stated rule i.e.
President in some situations has a little scope of discretion or not adhere to the
advice given by CoM.
a) Choosing the Prime Minister when no party wins a majority in the
election.
b) Dismissal of a government who has lost the majority in the house but
refuses to quit.
c) Dissolution of the lower house when an appeal to the nation has become
necessary i.e. he has reasonable ground to believe that the Government
though it enjoys majority in the Lok Sabha but has lost the support of the
people.
• Other discretionary powers – Pocket and suspensive veto, Power to summon
session of the parliament if six months have lapsed and the CoM haven’t advice
so, etc.
• Eg - APJ Abdul Kalam used suspensive veto and retuned the office of Profit
Bill. Gyani Zail sigh used the pocket veto to not sign the Indian Postal Bill
amendment Bill, 1986. Same was done by President R. Venkataraman.
• It is to be noted that the limited discretion which is enjoyed by the President is
not intentional but incidental, implicit and not explicit, situational and not
constitutional.

Constitutional Position / Whether a mere titular head?

India has a President but not a Presidential form of Government. Unlike America, the
President in India is not the real head of the executive or the Government and rather
enjoys a similar position to the crown under the British Parliamentary government.
Keeping up with the spirit of Cabinet form of Government, it’s the Council of Ministers
headed by the Prime Minister who enjoy the real executive power.
Following provisions make the position of the Prime Minister more titular in nature:
• Though Article 53 vests all executive powers in him and u/a 77 all executive
action taken under is name but in reality, he is bound by the advice of the CoM.
• It is the article 74(1) which vests real power in the hands of CoM because
President shall exercise his functions on their aid and advice.
• Furthermore, the advice so tendered shall not be inquired into by any court of
law [Article 74(2)]
• The SC has also held that article 74 is mandatory and the President cannot
dispense his function without the Council of Ministers. In U.N. Rao v Indira
Gandhi, SC held that it is essential to have a CoM to aid and advise the
President even when the Lok Sabha has been dissolved.
• In Shamsher Singh v State of Punjab, the court held that wherever the
constitution requires the satisfaction of the President, it is not his personal
satisfaction, but the satisfaction of CoM.
• Dr B.R Ambedkar had stated that “President represents the nation but does
not rule the nation. His place in the administration is that of a ceremonial device
on a seal by which the nations decisions are made known. He can do nothing
contrary to the advice of the Council of Ministers nor can he do anything without
their advice”

However, having stated the above, the constitution makers never intended to make
the President a mere puppet / passive spectator/ rubber stamp.

• Article 52 makes President mandatory in the constitutional scheme i.e. there

can never be no President for India.
• He is the commander in chief of the defence forces u/a 53(2).
• Article 78 obligates the PM to inform the President about all the decisions taken
by the CoM with respect to the administration affairs of the Union.
• Though 42nd Amendment Act, 1976 made the President bound by the advice
tendered to him by the CoM but considering the fact that this amendment
fettered the President’s role even as an advisor or guide, the 44th Amendment
Act recognized the limited but essential role of the President by allowing
him to ask the CoM to reconsider an advice tendered by him.
• A weak position of the President does not make his office superfluous. He is
the symbol of Indian national unity.
• Since every MLA’s presidential ballot is weighted by population, every citizen
is indirectly involved in his election making President the only nationally
elected public official in India.
• Being impartial and above party politics, he exerts his influence over the
decisions of the Ministry. Supreme Court has emphasized that President has
the right to be consulted by ministers as well as to “warn and encourage”
them about major policy decisions.
• For eg, in 1998 President K.R Narayanan did not accept the United Front
cabinet’s decision to impose Presidents rule in Uttar Pradesh as the governor’s
recommendation was violative of the Bommai case guidelines. Thus, he
recused the constitution and parliamentary democracy and thwarted misuse of
article 356. APJ Abdul Kalam used suspensive veto and retuned the office of
 Profit Bill. Gyani Zail sigh used the pocket veto to not sign the Indian Postal Bill
amendment Bill, 1986. Same was done by President R. Venkataraman.

According to Dr Jain “Constitution envisages not a dictatorial but a democratic

president who uses his judgement to keep the democratic and representative
government functioning and not to thwart the same”.

Though the constitution has cast the duty on CoM to advice the President but in reality,
it is the Presidents who advices the Ministry because of their vast experience and
political neutrality.