President of India (Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

UPSC: President of India (Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

The document President of India (Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC is a part of the UPSC Course Polity and Constitution (Prelims) by IAS Masters.
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President of India

India adopte'd the Westminster model bf democracy where the Parliament is supreme and the political executive composed of the Union Council of Ministers headed by the Prime Minister, is the head of the Government-de facto head. President is the Head of State and is the nominal head- counterpart of the British monarch- de jure head.

In some democratic systems, the head of the State is also the head of the government and, therefore, he is also the head of the political executive. The US Presidency represents this form. In Britain, the monarch is the symbolic head, representing the British nation. The powers of the Government are vested in the Cabinet headed by the Prime Minister. India follows the same model with President as the counter part of the British Crown- though the former is elected and can be removed.

The President of India is the first citizen and represents the entire Indian nation and is not, therefore, partisan. He/she is largely ceremonial in his status.

President and the Constitution

The entire Union of India- President, Parliament and Judiciary along with the CAG are contained in PART V of the Constitution( Art. 52-151).

Article 52 states that there shall be a President of India.

According to Art.53, the executive powers of the Union shal l be vested in the President.

Preference for indirect election

Constituent Assembly debated whether the President should be directly or indirectly elected. Some preferred direct election of the President . The suggestion was rejected on the following grounds

  • if President of India is elected directly by people, it will be a partisan process- the President will represent a particular political party which denies the office universal character. He may not work impartially
  • Secondly, a directly elected Chief Executive will insist on enjoying real powers and not satisfied with a ceremonial role and thus clash with the council of ministers, particularly if the Presidency and the Council of Ministers come from different parties.

A middle course was chosen by the framers of the Indian Constitution by having an electoral ollege with elected representatives from parliament and the,state assemblies.

Election of the President

Article 54 of the constitution says:-

 The President shall be elected by the members of an electoral college consisting of -

• The elected members of both Houses of Parliament and

• The elected: members of the Legislative Assemblies of the States (including National Capital Territory of Delhi and the Union Territory of Puducherry after the Constitution 70th amendment Act, 1992)."

In India, no special electoral college is elected, as in the case of America( in the USA, members of electoral college are elected by the people and the body ceases to exist once the election is over.) In India the electoral college is made up of the elected MPs and elected MLAs of all states and the two UTs of NCT of Delhi and Puduchery . The membes act in their non-legislative and elective capacity while electing the President.Eleciion of the President of India is by the system, of proportional representation by means of single transferable vote as provided by Article 55(3) of the Constitution. This system is chosen for the following reasonrln this system, there is a quota as we will see ahead. Any candidate to be elected will have to obtain the quota. In the case of the president ', the quota works out to 50% plus l of the valid votes cast- that is simple majority. It is necessary for the president to get more than 50% of valid votes as he/she represents the nation and can not be elected by a plurality ( largest number of votes though not majority) of votes as in the Lok Sabha elections. If none of the contestants gets majority/quota- election will be complete only when there is a round off election with the top two candidates going into the next and final rou8nd- as in the case of the French Presidential elections in May 2012 when Francois Hollande and Nicolas Sarkozy did. The process is tedious and not warranted for a ceremonial head. Therefore, the proportional system is chosen. Under this, there is no second round of voting but only counting of second preference of votes as we will see ahead. .

The nominated members of Parliament and legislative assemblies have no right to vote in the election. Similarly, the members of the Legislative Councils of the State Legislatures have also been excluded from the electoral college.

Procedure for the Election of the President

The Constitution provides for the election of the President by the system of proportional representation by means of the single transferable vote. Two fundamental principles are laid down in Art.55

  • to secure as far as possible, uniformity in the scale of representation of different States of the Union
  • to secure parity between the States as a whole and the Union in order to do justice to federal idea.

For the purpose of securing such uniformity and parity the following method is laid down:

Each member of the electoral college who is an elected member of a State Legislative Assembly will have a number of votes calculated as follows:

Total Population of the State (by 1971 census) is divided 6y total number of elected MLAs. The resultant number is further divided by 1000. Fractions exceeding one half being counted as one:        

Total population of the state / (Total number of elected member x 1000 )  

 

The value of the vote of an elected member of the assembly of each State is found out. The number of elected MLAs is known. Total number of votes assigned-to the elected members of all. the State /UT assemblies is calculated. It is divided by total number of elected members of both Houses of the Parliament to arrive at the value of the vote of an elected MP. Thus, centre-state parity is respected(Art.55)

Uniformity in the scale of representation of states is arrived at by following the same principle for fixing the value of the vote of an elected MLA for all states.

Proportional Representation

Article 55(3) of Indian Constitution requires that the President should be elected in accordance with the system of proportional representation by means of the single transferable vote.        '     >

In the ordinary mode of election known as "straight voting system", or ' first past the post system' or 'winner takes all system ', a candidate getting plurality of votes- relative majority( more than the nearest rival) is elected- even if, in percentage terms, it means only a plurality of the electorate. It means he has more votes than any of his rivals. Very often such candidates secure far less than simple majority of votes polled.

The 'first past the post’ principle can not be applied for Presidential election for the reason that the President should have a majority of the votes cast as he represents the nation. Therefore, proportional representation is prescribed where the President is bound to secure a majority of votes.

Proportional Representation as adopted in the Presidential elections is called the "Single Transferable Vote", which means that each elector has only one vote but it is transferable. He expresses his preferences in the single vote that he casts- first preference, second preference etc. A candidate, to be elected, requires to obtain a quota. If no candidate gets quota on the basis of first preference votes, the candidate who gets the least number of votes is eliminated. Those who voted for him as first preference will have their second preferences counted and they are distributed among those in the fray. The process continues till such time that a candidate is finally elected. Thus, votes are 'transferable’.

Quota of Votes

Under the Proportional Representation system, a quota is fixed for being elected. Any member who secures the necessary quota of votes is declared elected. Quota is arrived at by dividing the total number of valid votes cast by the members of the electoral college divided by the total numbers of candidates to be elected plus one and one is added to the quotient. The formula may be represented as follows: -

IAS,UPSC,President of India

 

Supposing there are 100 valid voting papers and four seats are to be filled up. According to the above formula, quota is 21. After the quota is fixed, any candidate whose total number of first preference votes is equal to or exceeds the quota is declared elected.

Elimination of the Bottom Candidate

If a candidate is elected in first count, the election is completed. But if no candidate gets quota in the first count, the process of selection continues by eliminating the candidate who has the least number of first preferences. His second preference votes are transfered to those in the fray. The process continues till the candidate is elected.

(For the Rajya Sabha elections, there is a small but significant change in the system: In case of adequate number not getting the quota, surplus votes, if any , from the elected members are transferred to those in the contest.)

VVGiri

VV Giri was elected in 1969. He was independent candidate sponsored by Mrs.Gandhi who fell out with the old guard in the Congress party. Sanjeev Redy was the choice of the old guard. In the 1969 election , no candidate was declared elected after the counting of first preference votes. In that year, the candidates were V.V.Giri, T4.S. Reddy, C.D. Desmukh and others. V.V.Giri got" 4, 01,515 first preference votes. Reddy and Desmukh got 3, 13,548 and 12,799 first preference votes respectively. Giri was short of 16,654 votes to get absolute majority .After the counting of second preference votes,- Giri got 4, 20,077 votes which was more than absolute majority. Giri was declared elected as the President of India.

The following facts make the presidency a federal institution:

  • Electoral college has Legislative Assemblies of States
  • There is parity between centre and the States

The election to the offices of the President and the Vice- President are regulated by the Presidential and Vice-Presidential Elections Act, 1952. For the purposes of these elections, it has been the established practice that the Secretary-General of the Lok Sabha or the Rajya Sabha is appointed by the Election Commission as returning officer along with one or more assistant returning officers.

The nomination for a presidential candidate has to be proposed and seconded by 50 electors each. The security deposit is Rs 15,000 which is forfeited if the candidate does not get at least 176th of the total valid vote.

An election petition calling in question an election to the office of the President may be presented - within 30 days from the date of publication of the result of election- to the Supreme Court by any candidate at such election or any twenty or more electors joined together as petitioners.

14th Presidential election

The 14th indirect presidential election, in order to elect the 13th president, was held in India on 19 July 2012. The two leading candidates for the office of the presidency are former Finance Minister Pranab Mukherjee from West Bengal and former Speaker of the Lok Sabha, P. A. Sangma from Meghalaya. Returning Officer was Rajya Sabha Secretary-General, Vivek Agnihotri.

On 22 July, Mukherjee was declared the winner. Mukherjee gained 373,116 MP votes and 340,647 MLA votes for a total of 713,763 votes to win the election. He defeated Sangma, who got 145,848 MP votes and 170,139 MLA votes for a total of 315,987 votes.

Pranab Mukherjee was the 13th President and the election was the 14th one as Babu Rajendra Prasad held the position for two terms- 1952-62.

Apex Court verdict December 2012

Sangma has challenged Mukherjee’s election on grounds that Mukherjee was holding offices of profit as chairman Indian Statistical Institute , Kolkata and as also the leader of the Congress Party in Lok Sabha when he had filed his nomination and entered the Presidential race.

The Supreme Court dismissed Purno Sangma's petition. A five-judge bench of the apex court which is mandatorily set up to hear such pleas decided by 3:2 majority that the petition did not deserve to be entertained for detail trial, which if ordered would have entailed possible cross exam ination of Pranab Mukherjee.

Chief Justice Altamas Kabir, who led the 3 to 2 majority ruling, held that Sangma's petition is not maintainable for regular hearing.

Earlier, the Attorney General had opposed the plea of Sangma on the issue of office of profit."An office of profit is an office which must be under the Government, which enjoys the power to appoint and remove and some salary or emoluments must be attached to the post," Vahanvati said, adding that this was not the case with the post of Chairperson of Indian Statistical Institute (ISl)."No pecuniary benefits was attached to the post of Chairman of IS1" the law officer, who is assisting the court, said.   

Conscience vote

Elected MPs and MLAs are free to abstain from voting in the Presidential election. They can vote the way the choose. There can not be a whip issued by the party . Such a whip amounts to influencing the voter and is illegal. Thus, there is conscience vote in the Presidential elections.

Memmebrs of the electoral college- elected MPs and MLAs do not act in their legislative capacity and therefore are not subject to anti-defection law in the Tenth Schedule • to the Constitution of India . Electors are at liberty to vote or not to vote at the Presidential election as per their own free will and choice. Thus, there is conscience vote.

Election of the President can be held even if some seats in the Electoral College are vacant. Such election cannot be called in question on the ground of any vacancy existing for any reason. The phrase, "the elected members of Legislative Assemblies of States" means only those who are actually in office at the time of Presidential Election.-The elected members of a suspended Assembly (Article 356 ) are entitled to take part in the Presidential election.

Election of the President by a lame-duck Electoral College- where the. Lok Sabha members are not present as the LS is dissolved at the time of Presidential election , is an open question and there is no Constitutional or statutory law in this regard. However, it is inconceivable.

Qua!ifications(Art.58)

A person eligible for election as President should be

  • a citizen of India
  • not less than thirty-five years in age
  • should be qualified to be a member of the Lok Sabha and
  • should not hold an office of profit under the Government. The offices of the President, Vice-President, Governor of a State or the Minister for the Union or a State, are not offices of profit for this purpose. Certain offices of profit under the Government have also been declared as not to disqualify the holders thereof for being chosen as President. A Member of Parliament or of.a State Legislature including the respective Presiding Officers can seek election to the office of the President but if any one of them is elected President, he is deemed to have vacated his seat in Parliament or the State Legislature as the case may be, on the date on which he enters upon his office as President.

Term of office (Art.56)

The President holds office for a term of-five years from the date on which he enters upon his office. Even after the term expires, he continues to hold his office until his successor enters upon the office.

The Presidential election must be held before, the expiration of his term of office. The Election Commission shall issue the notification on or as soon as conveniently may be, after, the sixtieth day before the expiration of the term of office of the out-going President.

According to Art.57, he is eligible for re-election.

The President may resign before the expiration of his term of office by writing under his hand addressed to the Vice-President. The resignation is forthwith required to be communicated to the Speaker of the Lok Sabha.

President gets emoluments of Rs. 1,50,000 per month .

Impeachment(Art.61)

The President may be removed from office before the expiration of his term by impeachment for violation of the Constitution. The process is as follows:

The charge may be preferred( initiated) by either House of Parliament. Conditions are the following:

  • atleast fourteen days' notice in writing
  • should be signed by not less than one-fourth of the total number of members of the House and
  • such resolution should be passed by a majority ofnot less than two-thirds of the total membership of the House in which the resolution originates.

 

When a charge has been so preferred by either House of Parliament, the other House will investigate the charge or cause the charge to be investigated. The President has the right to appear and to be represented at such investigation.

If the investigation upholds the charges of violation of Constitution against the President and a resolution is passed by a majority of not less than two-thirds of the total membership of the other House , President stands removed.

Oath of office

Before the President enters upon his office, an oath of office is administered to him by the Chief Justice of India or in his absence, by the senior-most Judge of the Supreme Court available-, in the form set out in Art. 60 of the Constitution'. The President takes oath/affirmation to protect, preserve and defend the Constitution.

Succession to Presidency(Art.62)

The Constitution provides that where a vacancy in the office of the President occurs by reason of his death, resignation or removal or otherwise, the Vice-President acts as the President until the new President enters upon his office and the election is required to be held within six months from the date of occurrence of the vacancy. The Constitution also provides that when the President is unable to discharge his functions owing to absence, illness, or any other cause, the Vice-President shall discharge his functions until the date on which the President resumes his duties .

However, the Constitution does not provide for cases where a vacancy occurs in the offices both of the President and the Vice-President simultaneously, or where the Vice-President while acting as, or discharging the functions of, the President is unable to do so. The Constitution has, therefore, empowered Parliament to make such provisions as it thinks fit for the discharge of the functions of the President in any contingency not provided for in the Constitution . Parliament has accordingly, enacted the President (Discharge of Functions) Act, 1969, whereunder in such cases, the Chief Justice of India or, in his absence, the senior- most Judge of the Supreme Court discharges the functions of the President.

When the Vice-President, Shri V.V. Giri, who was acting as the President in the vacancy caused by the death of the President, Dr. Zakir Husain, resigned from the office of the Vice- President in 1969, the Chief Justice of India, Shri M. Hidayatullah, discharged the functions of the President.

President’s privileges

The privileges of the President are the following

  • he enjoys immunity for the official acts ( Art.361)
  • no criminal proceedings can be instituted against him for his official and personal acts while he is in office
  • civil proceedings cannot be instituted for his official acts but in his personal actions, they can be instituted only after a two months notice.

 

Independence of the office of the President

The independence is maintained by the following Constitutional provisions

  • fixity of tenure-5 years term
  • impeachment’process being a difficult one
  • Art.36l and judicial immunity
  • Immunity against criminal and civil proceedings
  • Emoluments etc are fixed by the Parliament and cannot be reduced while he is in service.

 

Powers of The President

President is the Head of the executive of the country. The entire administration of the country is run in his name.    

Executive or Administrative Powers

While there is no definition of executive powers in the Constitution, they basically refer to policy making; policy execution; appointment and removal of high Constitutional dignitaries for the purpose and related matters.

Art.53 says that all executive powers of the Union are vested in the President. The President can exercise them on his own or by his subordinates. The President appoints the prime Minister and on his advice other ministers in the Council.

President can seek information from the Prime Ministers and also enforce collective responsibility of the Council of Ministers whibh is the centre piece of policy making in the parliamentary system of democracy(Art.78)

President has significant powers with regard to the Fifth and Sixth Schedule provisions in relation to tribals. He can declare that an area in a state is a scheduled area.

President directly administers the UTs.

However, the powers of the President, like in other fields, are subject to the advice of the Council-of Ministers headed by the Prime Minister(Art.74)

Appointments made by the President

President appoints the following:-

  • Prime Minister and his advice rest of the Union Council of Ministers
  • Governors of States
  • Judges of the Supreme Court and High Courts
  • Chief Election Commissioners and the two other Election Commissioners and Regional Election Commissioners, if any
  • CAG
  • UPSC Chairman and members
  • Chairmen and members of the statutory commissions like NHRC, Minorities Commission etc
  • Chairman and members of the Finance Commission every five years
  • Special Officer for Linguistic Minorities.
  • Attorney General

The power of removal in some cases rests with the President. For example, the Governor of the state, Attorney General etc hold office during the time they enjoy the pleasure of the President. Others can be removed by elaborate procedures- SC and HC judges can be removed by a parliamentary vote by a special majority for 'proved misbehaviour and incapacity1 and on that basis the President removes them. Similar is .the case with CAG and Chief Election Commissioner. Election Commissioners are however removed by the President on the advice of the Chief Electian.Commissioner. UPSC members, under certain circumstances are removed by him.

 

Diplomatic Powers -

The diplomatic powers of the President include the following

  • All treaties and agreements are signed by India in the name of the President
  • He appoints High Commissioners of lndia( ambassadors to Commonwealth countries are called High Commissioners) and ambassadors; and receives the credentials of the ambassadors and High Commissioners of other countries.

Military Powers

They are the following                                                                     '

  1. He is the Supreme Commander of Defence Forces and
  2. War and peace are declared in his name

Judicial powers

The President

  • appoints the Chief Justice and other judges of the of the Supreme Court arid High Courts
  • removes the judges mentioned above if the two Houses of the Parliament pass resolutions to that effect by special majority for 'proved misbehaviour and incapacity’(Art. 124)
  • may seek the advisory opinion of the Supreme Court(Art. 143)

Mercy powers

The President can issue the following orders of mercy to the convicted citizens of India(Art.72)

  • Pardon means absolving the convict of all guilt and punishment
  • Commutation is reduction of punishment from death sentence to life imprisonment
  • Remission is quantitative reduction of punishment without affecting the nature of punishment, for example, 2 years of rigorous punishment becomes 1 year of rigorous punishment
  • Respite means reduction of punishment in view of a special fact, for example, pregnancy or old age
  • Reprieve is stay of death sentence or life imprisonment pending an appeal for pardon or commutation.  

President’s clemency powers: Critical appraisal

The need for the mercy powers of the President is the following

  • The importance of Art.21 which guarantees right to life
  • Fallibility of the judgement of the apex court
  • The judicial verdict may be too harsh and deserves relief
  • Based-on the same evidence and on some other factors like remorse, record of behaviour and so on, the President can either give relief partly or wholly
  • The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State.

Thus, the President acts in a wholly different plane from that of the JCourt. It is a Constitutional responsibility and is-meant for the benefit of the convict as wellas the'people at large whose faith in the criminal justice system needs to be sustained.

The Presidential power of mercy is not considered a judicial power as the President does not hear’ any arguments; also, the power is exercised on the advice of the Union Cabinet.

The personality of the President and his/her value system is also a factor in the exercise of mercy powers. For example, former President KR. Narayanan( 1997-2002) is known as a 'no hanging President”.

Every civilised country in its Constitution or in its laws provides for a power to grant pardon or remission of sentence. Articles 72 and 161 of our Constitution confer this power on the President and the Governor, respectively. It is settled law that this power is to be exercised in accordance with ministerial advice and not by exercise of the President’s or the Governor’s individual discretion. The rationale of the pardon power is public faith in the humaneness of law- the President being the symbol of people in a republican country like ours.

The following are the legitimate and relevant considerations for exercise of the pardon power

  • seriousness of the offence
  • there is a shade of doubt about the convict’s guilt
  • the health of the prisoner, especially any serious illness from which he may be suffering « post-conviction conduct, character and reputation
  • remorse and atonement
  • the effect on the family members of the victim
  • the period of imprisonment undergone and the remaining period
  • interest of society and the convict

Supreme Court has categorically ruled that the power of pardon cannot be exercised for political considerations. It has further held that considerations of religion, caste, colour or political loyalty can not come into the field.

Exercise of power of pardon is not immune from judicial scrutiny. Courts in exercise of jud icial review have interfered with orders of pardon or remission when it is established that the order was mala fide or is arbitrary.

Delay is a sad fact in deciding on these cases for clemency. Delay of 12 years occurred in considering the mercy pleas of the three death-convicts in the Rajiv Gandhi assassination case with their pleas being ultimately rejected in August ,2011 by the President of India. Afzal Guru was sentenced to death by the Supreme Court in 2005 and the government hanged him in 2013..In 1983, the Supreme Court of India observed that a self-imposed rule should be followed by the executive authorities that every such petition should be disposed of within a period of three months from the date it is received.

There is no mercy plea pending with the" President by 2013 April.

The document President of India (Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC is a part of the UPSC Course Polity and Constitution (Prelims) by IAS Masters.
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