India has a Parliamentary form of Government. The Constitutional Head of the State is the President. The real executive power lies in the hands of the Council of Ministers and they are headed by the Prime Minister. The President can exercise the executive powers by the help of the Council of Ministers. The Council of Ministers are elected by the people and are responsible to the House of People.
According to Article 52 there shall be a President of India and according to Article 53 the President has the executive powers of the Union and it shall be exercised in accordance with the Constitution either directly or through the subordinate officers.
Qualifications of the President
According to Article 58 the following shall be the qualifications of the President:
1. He must be a citizen of India
2. He must have completed 35 years of age.
3. It is compulsory for him to be registered as a voter in any Parliamentary Constituency.
4. Any office of profit under the Government of India, any State Government, local or other authority subject to the control of the Government of India or any State Government shall not be held by him.
Conditions of the office of President
According to Article 59 the President cannot be a member of either House of the Parliament or of a House of the State Legislature of any State. If such a person is elected as the President, he shall be considered to have vacated his seat in that House on the date on which he enters upon his office as the President.
The President is granted a salary of Rs 150000, official residence free of rent and other allowances as may be determined by the Parliament by law. The salary and allowances of the President cannot be diminished during his term of office.
Election of President
According to Article 54 the President shall be elected indirectly by an Electoral College which consists of:
- Members elected from both the Houses of the Parliament
- Members elected from the Legislative Assembles of the States
‘State’ includes National Capital Territory of Delhi and the Union Territory of Pondicherry which means that the Electoral College includes the MLAs of National Territory of Delhi and the Union Territory[i].
Voting rights have not been given to the nominated members of the Houses of the Centre and the States. According to Article 55 (3) the election of the President shall be conducted according to the system of proportional representation by means of single transferable vote. The system of secret ballot is adopted for voting. According to Article 55 (1) in the election, there shall be uniformity in the scale of representation among the State inter se and parity between the States as a whole and the Union.
In order to ensure the application of this procedure, the States shall have as many votes as there are multiples of 1000 in the quotient that is obtained by the division of the population of the State by the total number of elected members of the Assembly. Suppose the remainder by this division is 500 or more it will be counted as 1 and the vote of each member is increased by 1.
Number of votes to be casted by each elected member of the Parliament shall be obtained by dividing the total number of votes of the Legislative Assembles of all States (obtained under the above mentioned procedure) by the total number of the elected members of both Houses of the Parliament. Suppose by this division, the remainder exceeds one-half it will be counted as 1.
[ii]Suppose the population of Bombay is 20849840 and the total number of elected members of the Bombay Legislative Assembly is 208. In order to calculate the number of votes which every member of the Legislative Assembly is entitled to caste, the population of Bombay is to be divided by the total number of elected members of the Bombay Legislative Assembly and then divide the quotient by 1000.
20849840/208/1000 = 100239/1000 = 100(rejecting the remainder 239 being less than 500)
Each member of Bombay Legislative Assembly will get 100 votes. The total votes cast by Bombay Legislative Assembly will be 100*208=20800
Suppose the total number of votes elected Members of Legislative Assemblies of all states in accordance with the above calculation is 74940. The total of elected members of both the Houses of the Parliament is 750. The number of votes each MP is entitled to cast will be 74940/750 = 99 and 23/25 in fraction and since the fraction exceeds one half it will be counted as 1 and will be added to the total number that is 99+1=100.
Mode of Voting
The voting system works in the following procedure:
[iii]Suppose there are 4 Candidates A, B, C, D and the total number of valid votes is 15000. A Candidate must secure at least 7501 first preference vote that is more than half the valid votes to be declared elected. In the count, A, B, C and D have polled 5250, 4800, 2700, and 2250 respectively. No candidate has secured 7501 votes. D has obtained the least number of votes and shall be eliminates first. The 2ndpreference votes recorded in his favour will be transferred to the remaining candidates. Suppose the 2nd preference votes recorded in the votes of D are as follows – A (300) B (1050) C (900). These would be transferred and added to the first preference votes in favour of A, B, C and the count become:
A – 5250+300 = 5550
B – 4800+1050 = 5850
C – 2700+900= 3600
Still no Candidate has secured 7501 votes. C is eliminated for securing least votes and the 3rd preference votes recorded in his favour will be transferred to A and B. Suppose the 3rd preference votes in favour of A and B are 1700 and 1900. The result of this 2nd transfer will be:
A – 5550+1700 = 7250
B – 5850 + 1900 = 7750
Here, B is the successful candidate. This process is repeated till a candidate secures more than half the valid votes.
Disputes in the Election of President
All the disputes regarding the election of President is inquired and decided by the Supreme Court. The decision of the Supreme Court is final (Article 71). According to Article 71(3) the Parliament may regulate any matter relating to the election of President and Article 71(4) says that the election of the President cannot be challenged due to any vacancy in the Electoral College.
Oath by the President
The President has to take an oath in the presence of the Chief Justice of India and in his absence, the senior most Judge of the Supreme Court available before entering the office (Article 60). By making oath the President swears:
- to execute the office of the President faithfully
- to preserve, protect and defend the Constitution
- to serve and work for the welfare of the people of India
Term of the President
According to Article 56 the President shall hold office for a term of 5 years and shall continue until his successor enters upon his office. The President is eligible for re-election too. According to Article 62(1) the elections to fill the vacancy caused by the expiry of the term of the President must be completed before the expiration of the term. According to Article 62(2) when the office of the President is vacated due to death, resignation or removal election should be held as soon as possible and in no case later than 6 months from the date of vacancy.
Privileges of the President
Article 361 provides the following privileges to the President:
- The President shall not be answerable to any Court regarding the exercise of his powers or any act done in the exercise of such powers but the conduct of the President can be reviewed by any Court, tribunal or body appointed by either Houses of the Parliament for investigation regarding impeachment proceedings.
- Any criminal proceedings shall not be instituted against him during his term of office.
- Any Court shall not issue any process of arrest or imprisonment of the President.
- Any Civil Proceeding in which relief is claimed against the President shall not be instituted during his term of office in respect of any act done by him in his personal capacity whether before or after entering office until a notice in writing has been to the President, 2 months have passed after the service of such notice and the notice states the nature of the proceeding, name, residence, cause of action and description of the party taking the proceeding and the relief claimed.
Impeachment of President
The procedure for impeachment of the President has been mentioned under Article 61. Impeachment is a legislative trial for removal of high officials of the State. Impeachment can be started by any House of the Parliament at the initiative of 1/4th of its total membership who must give 14 days’ notice. The President has the right to appear and be represented at such investigation. If 2/3rd majority of the total Membership of that House approves the charge, the other House will discuss the same. If 2/3rd majority of the other House also approves the resolution, the President shall be impeached.
Powers of the President
The following are the powers of the President:
The Constitutional provisions make the President the supreme executive of the Union Government. His executive powers are either exercised by him or by his subordinates in his name. He appoints the Prime Minister and on his advice the other ministers, the Governor, Ambassadors, Judges of Supreme Court and the High Court, Comptroller and Auditor General, Chairman and members of the Public Service Commission, Members of Finance Commission and Official Commission. These officers hold office during the pleasure of the President. He has the power to remove these officers from their posts. President can exercise all these powers with the help of the Council of Ministers.
Treaties and international agreements are negotiated and signed in his name but it is subject to ratification by the Parliament. He sends and receives Ambassadors.
The President is empowered to be the Supreme Commander of the Defence Forces of the Country. War and Peace can be declared and concluded in his name. Such power is regulated by law and on the advice of the Cabinet.
The President is an integral part of the legislative process and without his assent no bill can be passed by the Parliament (Article 111). He may give or withhold his assent and when it is a bill other than a money bill, he may return it to the House for reconsideration. According to Article 3 a bill for alteration of State boundaries or recognition of a new state can be introduced in either House of the Parliament after his recommendation. He has the power to summon and prorogue the Houses of the Parliament and may also dissolve the House of People According to Article 85(1) it is compulsory for him to summon the Parliament within 6 months from the last sitting of the former session. The President shall call a joint sitting of both the Houses of the Parliament in order to resolve a deadlock. It is mandatory for him to address each House in the first session of the year. 12 members from among people having special knowledge in the fields of literature, science, art or social services are nominated by him to the Rajya Sabha (Article 80(3)) He nominates 2 members to the Lok Sabha from the Anglo Indian Community if it is not adequately represented (article 331).
Article 123 deals with the Ordinance making power of the President. The President may issue an ordinance when both the Houses of the Parliament are not in session and he is satisfied that a circumstance requires immediate action. The Ordinances must be laid before both the Houses of the Parliament. It ceases to operate at the expiry of 6 weeks from the date of reassembly of the Parliament unless a resolution disapproving it is passed by both the Houses before the expiry of 6 weeks. An Ordinance is as effective as an Act of the Parliament. The President has the power to withdraw it anytime he wants.
Article 72 includes the power of the President to grant pardons, reprieves, respites or to suspend, remit or commute the sentence of any person convicted of any offence by Court Martial, an offence relating to matters to which the executive powers of the Union extends and in cases in which death sentence is awarded. In case of a pardon the offender is completely forgiven and he is not subject to any punishment or sentence. Commutation refers to substitution of one punishment for another and in the process of Remission the term of sentence is reduced without changing its character. Respite and Reprieve mean awarding a lesser punishment on special grounds and temporary suspension of death sentence respectively.
Three kinds of Emergencies have been mentioned in the Constitution. They are:
National Emergency – Article 352 of the Constitution speaks about National Emergency. According to it the President may make a Proclamation of Emergency in respect of whole or any part of India, if he is satisfied that a grave emergency exists which threatens the security of India or any part of India by War or External Aggression or Armed Rebellion[iv]. Such Proclamation of Emergency can be made even before the event mentioned in Article 352 has actually occurred, provided the President is satisfied that there is the danger of a war, external aggression or rebellion.
State Emergency – According to Article 356, on receiving a report from the Governor of a State or otherwise if the President is satisfied that there is a situation in which the Government of a State cannot be carried in accordance with the provisions of the Constitution, he may issue a Proclamation.
Financial Emergency – According to Article 360 if the President is satisfied that there is a situation where the financial stability of India or any part of the territory is threatened; a Proclamation of Financial Emergency may be issued.
Dr. N.B.Khare vs. Election Commissioner of India[v]
The election of the President was challenged on the ground that the general election had not taken place in some parts of Punjab and Haryana and as a result the Electoral College would be incomplete. The Supreme Court held that the election of the President can be challenged only after the completion of the election. Moreover, Article 71(4) made it clear that the election of the President cannot be challenged due to any vacancy in the Electoral College.
R.K.Garg vs Union of India[vi]
It was held that the object behind issuing Ordinance is to enable the Executive is to deal with the urgent matters and it may also include a situation created by a law being declared void by a Court.
Kehar Singh V Union of India[vii]
The petitioner was convicted of murder for assassinating the Prime Minister Smt.Indira Gandhi. He was awarded death sentence. He presented a petition for pardon and to allow his representatives to meet the President in order to explain the case. His petition was rejected without going into the merits of the decision of the Supreme Court. It was held that consideration of a petition to pardon lies completely within the discretion of the President. The power of the President under this Article is of widest amplitude and he does not need to specify reasons for his decisions under this Article.
Position of the President
On one hand the President is provided with various powers but on the other hand he can exercise his powers only on the advice of the Council of Ministers. He merely remains the Constitutional Head of the State but the real executive powers rest in the hands of the Council of Ministers. He cannot make decisions without the advice and approval of the Parliament. Under the emergency provisions, the President has been given a wide range of power but this power also requires approval of the Prime Minister and the Council of Ministers.
However, the 44th Amendment has empowered the President to refer back any advice of the Council of Ministers for its reconsideration. Whatever advice the Council of Ministers give after reconsideration, the President is bound to accept accordingly. The President can exercise his discretion for the appointment of the Prime Minister and the dissolution of Lok Sabha. The position of President cannot be considered merely a rubber stamp but he is only the Constitutional Head of the State, not the real executive.
Frequently Asked Questions
1. Why is the President elected indirectly?
The President is elected indirectly for the following reasons:
- The size of electorate in India is too big which forbids direct election.
- Direct Election will be a big strain on the administrative machinery.
- Direct Election is an expensive method.
- Direct Election is superfluous for a ‘figure head’.
2. What is Veto power of the President?
The word ‘veto’ literally means ‘to forbid’. When a bill is presented to the President he can withhold his assent to the bills which is called veto power. Such power prevents hasty, ill considered legislation and also prevents a legislation which may be unconstitutional.
3. Can the President reject a money bill?
According to Article 111 the President can either give assent to the Bill or withhold the assent. However, the bill cannot be sent back to the Parliament for reconsideration. When it is withheld it amounts to rejection.
5. What is an Ordinance?
In simple words, Ordinance refers to a rule or an order made by an authority. Under Article 123 the President in order to overcome urgent situations can issue ordinance.
Edited byMadonna Jephi
Approved & Published – Sakshi Raje
[i] The Constitution 70th Amendment Act, 1992
[ii] Draft Constitution of India, Page 17
[iii] DR.J.N.Pandey, Constitutional Law of India, 472 (53rd edition,2016), Central Law Agency, Allahabad
[iv]44th Amendment Act, 1977
[v] Dr.N.B.Khare V Election Commissioner of India, AIR 1957 SC 694
[vi] R.K.Garg V Union of India, AIR 1982 SC710
[vii] Kehar Singh V Union of India, AIR 1989 SC 653