Union Executive: President | Constitutional Law - CLAT PG PDF Download

Introduction

• The Union government of India is made up of three main parts: the  executive  , the  legislature  , and the  judiciary  . This division is important for maintaining the balance of power, which is a key principle in a republic.
• The  executive branch  is responsible for the day-to-day administration of the government. It  executes  and  enforces laws  made by the legislature and interpreted by the judiciary.
• The Union executive includes the  President  , the  Vice-President  , and the  Council of Ministers  , with the  Prime Minister  as the head, who assists and advises the President.

President

Article 52: The President of India 

• The Constitution mandates the office of the President of India as the  constitutional and republican head  of the country.
• The President represents both the  Union and the States  within the parliamentary system of government.
• In the event of a vacancy due to  death, resignation, removal, or other reasons  , the Vice President will serve as the acting President.
• The vacancy must be filled within a period of  six months  .

Article 53: Executive Power Of The Union

 (1)  The executive power of the Union is vested in the President, who can exercise it directly or through subordinate officers as per the Constitution.

 (2)  The President holds supreme command over the Defence Forces of the Union, with the exercise of this command regulated by law.

 (3)  This article does not:

•  (a)  Transfer any functions conferred by law on State Governments or other authorities to the President.

•  (b)  Prevent Parliament from conferring functions on authorities other than the President.

The executive authority of the Union is  vested in the President  , who can exercise it directly or through subordinate officers as per the Constitution. This authority encompasses not only policy determination but also its execution, covering a wide range of responsibilities including:

•  General Administration  : Involves the overall management of the State.
•  Initiation of Legislation  : Proposing new laws.
•  Maintenance of Order  : Ensuring law and order in the country.
•  Promotion of Social and Economic Welfare  : Implementing policies for public health, housing, employment, welfare, education, transport, defence, finance, etc.
•  Direction of Foreign Policy  : Managing international relations and foreign affairs.
•  Subordinate Legislation and Administrative Justice  : Making rules and ensuring justice in administrative matters.

The President's executive power is to be exercised in accordance with the Constitution. The division of functions among the three branches of government (executive, legislative, and judicial) is not absolute, and the executive may also perform legislative or judicial functions when necessary.

 Supreme Command of Defence Forces 

Article 53(2) grants the President  supreme command of the defense forces  . However, this military power is subject to the general executive power and can only be exercised under regulations established by laws made by Parliament.

 Delegation of Executive Functions 

Article 53(3) specifies that while the President holds the executive power of the Union, Parliament can confer functions on authorities other than the President. However, powers explicitly granted to the President by the Constitution cannot be transferred to any other authority by Parliament.

Article 54: Election of the President 

The President of India is elected by an  electoral college  comprising:

• The  elected members  of both Houses of  Parliament  .
• The  elected members  of the Legislative Assemblies of the  States  .

 Explanation:  In this context, “State” also includes the  National Capital Territory of Delhi  and the Union Territory of  Pondicherry  .

 Key Points about the Presidential Election 

• The President of India is elected indirectly, which means that the voters do not choose the President directly.
• The  electoral college  that elects the President is made up of elected members from different levels of government:
•  Members of Parliament  : These are the elected representatives from the two Houses of Parliament - the Lok Sabha (House of the People) and the Rajya Sabha (Council of States).
•  Members of State Legislative Assemblies  : These are the elected representatives from the legislative assemblies of the various states in India.
• The system of indirect election is in line with the  Cabinet system of government  established by the Constitution. In this system, the President is the nominal head of the government, while the real power is held by the Cabinet.
• Even if there are no elected members in a State Legislative Assembly due to its dissolution, this does not prevent the election of the President. The election can still proceed to fill the presidential vacancy.

Article 55: Manner of Election of President 

The process of electing the President of India is outlined in Article 55 of the Constitution. It emphasizes the need for uniformity in the representation of different States and ensures a fair and proportional voting system.

 Key Points of Article 55 

•  Uniformity in Representation:  Article 55 aims to achieve uniformity in the scale of representation of different States during the election of the President.
•  Determining Votes:  The number of votes for each elected member of Parliament and State Legislative Assemblies is calculated to ensure parity between States and the Union.
•  Proportional Representation:  The election follows the system of proportional representation through the single transferable vote method.
•  Secret Ballot:  Voting in the Presidential election is conducted by secret ballot to maintain confidentiality.

 1. Uniformity in Representation 

• Article 55 stresses the importance of uniformity in how different States are represented in the Presidential election. This ensures that no State is disproportionately represented compared to others.

 2. Determining Votes 

• The votes for each elected member of Parliament and State Legislative Assemblies are calculated based on the population of the State and the total number of elected members.
•  a)  Every elected member of a State's Legislative Assembly gets votes based on the population of the State divided by the number of elected members, multiplied by one thousand.
•  b)  If there is a remainder of five hundred or more after this calculation, each member's votes are increased by one.
•  c)  For members of Parliament, their votes are calculated by dividing the total votes assigned to State Legislative Assembly members by the total number of elected members in both Houses of Parliament.

 3. Proportional Representation 

• The election of the President is conducted using the system of proportional representation by means of the single transferable vote. This system ensures that the election reflects the proportional strength of different groups within the electoral college.

 4. Secret Ballot 

• Voting in the Presidential election is done by secret ballot, ensuring that the choices of the voters remain confidential and free from external influence.

 Conclusion 

Article 55 of the Indian Constitution outlines the process for electing the President, emphasizing uniformity in representation, proportionality in vote allocation, and the use of secret ballots. This framework ensures a fair and balanced election process, reflecting the diverse interests of all States and the Union.

Article 56: Term of Office of the President

 Term Duration 

• The President serves a  five-year term  from the date of assuming office.

 Provisions for Resignation and Removal 

• The President can resign by writing to the  Vice-President  .
• The President can be removed by  impeachment  for violating the Constitution.

 Continuation in Office 

• The President remains in office until a  successor  is elected, even after the term ends.

 Resignation Process 

• Resignation letters to the  Vice-President  are forwarded to the  Speaker of the House of the People  .

 Key Points 

• President's term is  five years  .
• Can resign or be impeached.
• Continues until a new President is in place.
• Resignation communicated to the Speaker.

Article 57: Eligibility for Re-Election 

A person who has held the office of President is eligible for re-election, subject to the provisions of the Constitution.

 Key Points 

• A former President can be re-elected to the same office.
• There is no limit on the number of times a person can be elected as President.

Article 58: Qualifications for Election as President 

Article 58 of the Indian Constitution outlines the qualifications and disqualifications for a person to be elected as the President of India.

 Qualifications for Election as President 

•  Citizenship:  The candidate must be a citizen of India.
•  Age:  The candidate must be at least 35 years old.
•  Membership Qualification:  The candidate must be qualified to be elected as a member of the House of the People (Lok Sabha).

 Disqualification for Election as President 

• A person is not eligible for election as President if they hold any office of profit under the Government of India, the Government of any State, or any local or other authority under the control of these governments.

 Exemptions from Disqualification 

• The disqualification does not apply to the President, the Vice-President of the Union, the Governor of any State, and Ministers of the Union or any State.

Article 59: Conditions of President's Office

• The President of India cannot be a member of either House of Parliament or a House of the Legislature of any State.
• If a member of these bodies is elected President, they vacate their seat upon assuming the office of President.

 Prohibition of Other Offices 

• The President is not allowed to hold any other office of profit during their term.

 Official Residence and Entitlements 

• The President is entitled to use their official residence without paying rent.
• They are also entitled to emoluments, allowances, and privileges as determined by Parliament.
• Until such provisions are made, the President will receive the emoluments and allowances specified in the Second Schedule.

 Protection of Emoluments and Allowances 

• The emoluments and allowances of the President cannot be diminished during their term of office.

Article 60: Oath or Affirmation by the President 

• Before taking office, every President and anyone acting as President must make an oath or affirmation in front of the Chief Justice of India, or the seniormost Judge of the Supreme Court if the Chief Justice is unavailable.
• The oath or affirmation states that the President will:
•  Faithfully execute  the office of President.
•  Preserve, protect, and defend  the Constitution and the law.
•  Devote themselves to the service and well-being  of the people of India.
• This process ensures that the President commits to upholding the Constitution and serving the citizens of India before officially starting their duties.

Article 61: Procedure for Impeachment of the President 

1. When a President is to be impeached for violating the Constitution, the charge can be brought forward by either House of Parliament.
2. No charge can be brought unless:

• The proposal to bring the charge is part of a resolution moved after at least  14 days' notice  in writing, signed by at least  one-fourth  of the total members of the House.
• The resolution is passed by a majority of at least  two-thirds  of the total membership of the House.

3. Once a charge is preferred by either House of Parliament, the other House is responsible for investigating the charge. The President has the right to appear and be represented during this investigation.
4. If the investigation results in a resolution passed by a majority of at least  two-thirds  of the total membership of the House that investigated the charge, declaring that the charge against the President is upheld, this resolution will lead to the removal of the President from office.

 Key Points about Impeachment Process for the President: 

• The process is initiated when a President is accused of violating the Constitution.
• Either House of Parliament can bring forward the charge.
• A notice period of  14 days  is required before moving the resolution.
• A minimum of  one-fourth  of the members must support the motion.
• The resolution needs to be passed by a  two-thirds majority  .
• The House that passes the motion does not investigate; the other House does.
• If the charge is upheld, the President is removed from office.

Article 62: Time of Holding Election

•  Election to Fill Vacancy Due to Term Expiration:  An election to fill a vacancy caused by the expiration of the President's term must be completed before the term ends.
•  Election for Vacancy Due to Death, Resignation, or Removal:  If a vacancy occurs due to the President's death, resignation, or removal, an election to fill the vacancy must be held as soon as possible, and no later than six months from the date of the vacancy.
•  Term of Office for Elected President:  The person elected to fill a vacancy in the President's office is entitled to hold office for a full term of five years, starting from the date they assume office, as per Article 56.
•  Fixed Term of Office:  The President holds office for a fixed term of five years. If a vacancy occurs, an election must be conducted before the expiration of the current President's term. The outgoing President can continue in office until the successor assumes office, as outlined in Article 56(1)(c).
•  Acting President:  In case of a vacancy due to death, resignation, removal, or other reasons, the Vice-President will act as President until a new President is elected.

Article 72: President's Power to Grant Pardons and Alter Sentences

Article 72 of the Indian Constitution empowers the President to grant pardons, reprieves, respites, or remissions of punishment, as well as to suspend, remit, or commute sentences under certain circumstances.

 Key Provisions of Article 72 

•  Pardons and Related Powers:  The President can grant pardons, reprieves, respites, or remissions of punishment, and can also suspend, remit, or commute sentences in specific cases.
•  Scope of Power:  The President's power applies to cases involving Court Martial sentences, offences against Union laws, and death sentences.
•  Limitations:  The power of Court Martial officers and State Governors to suspend, remit, or commute sentences is not affected.

 Understanding Pardons 

•  Pardon:  A pardon is an act of grace that cannot be claimed as a right. It places the offender in an innocent position before the law, releasing them from the punishment imposed. All civil rights are restored, and a pardon can be granted before or after conviction.
•  Types of Pardons:  Pardons can be absolute or conditional. In conditional pardoning, the pardon becomes effective only after the grantee has performed a specified act.

 Other Forms of Relief 

•  Reprieve:  A temporary suspension of the punishment fixed by law.
•  Respite:  A postponement of the execution of a sentence to a future date.
•  Commutation:  Changing a punishment to a different type than originally proposed.
•  Remission:  Reducing the amount of punishment without changing its nature.

 Judicial Oversight 

• The Supreme Court has emphasized that the powers under Article 72 should be exercised sensibly and not arbitrarily.
• The President's power falls within the judicial domain and is subject to judicial review.