Union Executive- 1

Introduction

Chapter I of Part V of the Constitution deals with the Union Executive (Arts. 52-78). In modern democracies there are two principal patterns of executive government - the presidential form and the cabinet (parliamentary) form. India follows the cabinet form. The Union Executive comprises the President, the Vice-President, the Council of Ministers and the Attorney-General of India.

Constitution of India

Election of the President

• The framers of the Constitution opted for parliamentary democracy, a modified form of the British cabinet system. The President is the constitutional head but, in practice, acts on the aid and advice of the Council of Ministers.
• Executive powers of the Union are vested in the President (Art. 53), while real executive responsibility rests with the Council of Ministers which is responsible to the Lok Sabha (Art. 75(3)).
• The President is required to act according to the advice of the Council of Ministers, headed by the Prime Minister (Art. 74(1)).
• Articles 54 and 55 lay down the manner of election of the President. The President is chosen by an indirect election - an electoral college.
• The electoral college consists of:
  • The elected members of both Houses of Parliament.
  • The elected members of the Legislative Assemblies of the States.
  • The elected members of the Legislative Assemblies of the Union Territories of Delhi and Pondicherry.
• Art. 55 requires that, so far as practicable, there shall be uniformity of representation of the different states in the election of the President. This is achieved by giving to each MLA a vote whose value is proportionate to the population he represents.

Value of Votes - MLA and MP

The value of the vote of an MLA is determined to reflect the population represented by the Assembly. The usual formula used (as provided in the Constitution and practice) is:

The value of an MP's vote is fixed so as to provide parity between the Union and the States. The total value of votes of all MLAs of all States is divided by the total number of elected MPs to arrive at the value of each MP's vote.

Method of Voting and Quota

• Art. 55 prescribes that the election of the President is by secret ballot and shall be by proportional representation by means of a single transferable vote.
• To be elected, a candidate must obtain the quota. For single vacancy elections under the single transferable vote system a standard formula used for the quota is:

Electors indicate preferences among the candidates. First-preference votes are counted first; if a candidate reaches the quota, he is declared elected. If no one reaches the quota, the candidate with the least votes is eliminated and his votes are transferred according to next preferences. This process continues until one candidate attains the quota.

Criticism of the Election Method

Indirect election of the President is criticised for not directly following the democratic ideal of universal franchise. Supporters argue direct election would be impractical in a vast and diverse country - it would involve great cost, time and energy - and that the President in India is largely a ceremonial head while real executive power belongs to the Council of Ministers; therefore indirect election is consistent with the practical balance of powers.

Election Disputes

Disputes arising from presidential elections are adjudicated by the Supreme Court under Art. 71. The Constitution (as amended) excludes disputes arising from vacancies in the electoral college (see relevant amendment provisions).

Elections in India - Qualifications and Related Matters

Qualifications

• For election as President, Art. 58 prescribes that a person must:
  • be a citizen of India;
  • have completed 35 years of age;
  • be qualified for election as a member of the Lok Sabha;
  • not hold any office of profit under the Government of India or the Government of any State.

Term of Office

• The President holds office for five years from the date on which he enters upon his office (Art. 56), and is eligible for re-election (Art. 57).
• The President may leave office before the expiry of the term by:
  • resignation in writing addressed to the Vice-President; or
  • removal by impeachment for violation of the Constitution (Art. 61).
• Art. 61(1) specifies the sole ground for impeachment as "violation of the Constitution".

Conditions of Office

• The President shall not be a member of either House of Parliament or of a House of the Legislature of any State. If a member of such a House is elected President, he shall be deemed to have vacated his seat on assuming office. The President shall not hold any other office of profit (Art. 59(1)).

Impeachment

• The President may be impeached for violation of the Constitution (Art. 61).
• The procedure for impeachment includes:
  • Initiation by either House of Parliament;
  • Presentation of charges in the form of a resolution signed by one-fourth of the total strength of the initiating House and moved after at least 14 days' notice;
  • Passage of the resolution by a majority of not less than two-thirds of the total membership of that House;
  • Investigation of the charges by the other House; and
  • If the other House also passes the resolution by a majority of not less than two-thirds of its total membership, the President is removed. The President has the right to appear and be represented at the investigation.

Vacancy

• Art. 62 deals with vacancies in the office of the President which may arise by:
  • expiry of the term of five years;
  • death;
  • resignation;
  • removal by impeachment;
  • setting aside of the election or other causes.
• If a vacancy is due to expiry of term, an election must be completed before the expiration of the term (Art. 62(1)); if delayed, the outgoing President continues in office until his successor assumes charge.
• If a vacancy arises for any other reason, an election must be held as soon as possible and in no case later than six months from the date of occurrence of the vacancy. Until a new President is elected, the Vice-President acts as President (Art. 65(1)).
• Where the President is temporarily unable to discharge his functions (e.g. due to absence or illness), the Vice-President discharges those functions until the President resumes duty.

Order of Succession

• On a vacancy in the office of the President the succession order laid down by Parliament is:
  • Vice-President of India;
  • Chief Justice of India; and
  • Other Justices of the Supreme Court in the order of seniority.

Powers and Duties of the President

The executive power of the Union is vested in the President. Executive power includes execution of laws passed by Parliament and administration of the State. All executive actions of the Union are taken in the name of the President. The Constitution vests various powers and functions in the President under several heads, subject in many cases to the aid and advice of the Council of Ministers.

Administrative Powers

Lady Justice

• The President is the formal or titular head of the executive; all executive actions of the Union are formally expressed to be taken in his name.
• Officers of the Union are subordinate to the President and he has a right to be informed of the affairs of the Union (Art. 78 and related provisions).
• The President has the power to appoint and remove high dignitaries of the State, including:
  • The Prime Minister and other Ministers;
  • The Attorney-General of India;
  • The Comptroller and Auditor-General of India;
  • Judges of the Supreme Court and High Courts;
  • Governors of States;
  • Members of the Union Public Service Commission and State PSCs; and
  • The Chief Election Commissioner and other Election Commissioners.
• Though the President formally appoints these officers, in practice he normally acts on the advice of the Council of Ministers.

Military Powers

• The supreme command of the defence forces is vested in the President. He appoints the chiefs of the Army, Navy and Air Force and can confer honours; the power to declare war or conclude peace is exercised in his name, subject to law and parliamentary control.
• The exercise of military powers is regulated by laws made by Parliament and by ministerial responsibility.

Diplomatic Powers

Indian military powers 

• The President represents India in international relations, appoints and receives ambassadors and high commissioners. Treaties and international agreements are entered into in his name, subject to ratification and parliamentary scrutiny where required.

Legislative Powers

• The President is an integral part of Parliament and his assent is necessary for a bill to become law.
• Main legislative powers include:
  • The power to summon and prorogue Houses of Parliament and to dissolve the Lok Sabha;
  • The power to address Parliament and to send messages to either House;
  • The right to nominate members to Parliament (historically 12 members to the Rajya Sabha and 2 members of the Anglo-Indian community to the Lok Sabha);
  • Power to cause reports and statements to be laid before Parliament;
  • The power to promulgate ordinances when Parliament is not in session; and
  • The right to recommend or sanction the introduction of certain classes of bills (for example, money bills require the President's recommendation).
• Note: The reservation of Anglo-Indian seats in Parliament and state legislatures was discontinued by the One Hundred and Fourth Constitutional Amendment Act, 2019. This amendment removed the nomination of two Anglo-Indian representatives to the Lok Sabha and similar nominations to State Legislatures. (The amendment and its legislative history are recorded in the statute book.)

Financial Powers

• The annual Union Budget is laid before Parliament in the name of the President. A money bill can be introduced only on the President's recommendation.
• The President also has a role in fiscal matters such as distribution of tax receipts between the Centre and the States and other financial provisions as prescribed by the Constitution.

Judicial Powers

• The President has the power to grant pardons, reprieves, respites or remissions of punishment and to suspend, remit or commute sentences in certain cases; this clemency power includes the power to commute death sentences.
• The President appoints judges of the Supreme Court and High Courts and therefore plays an important role in judicial appointments.
• The President may refer certain questions of law or fact to the Supreme Court for its opinion under the advisory jurisdiction; such advice of the Supreme Court is not binding on the President but carries great constitutional weight.

Emergency Powers

• The Constitution empowers the President to proclaim three types of emergency:
  • A national emergency on grounds of war, external aggression or armed rebellion;
  • A President's rule (state emergency) when constitutional machinery fails in a State;
  • A financial emergency when the financial stability or credit of India is threatened.