10. Union Government

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Office of Indian President

President is part of “Union Executive”.

Union Executive comprises of:

President

Vice-President

Prime Minister

Council of Minister

Attorney General of India.

President is also part of Parliament which also includes Upper house and Lower House.

Article 52 – The President of India

There shall be a President of India. Thus, Indian President is a Constitutional Post. Word “Shall” implies that this post can not be left vacant.

Article 56 – Term of office of President

•The President shall hold office for a term of five years from the date on which he enters upon his office. (not from election results) However,

(a)the President may, by writing under his hand addressed to the Vice-President, resign his office. (Oath is before CJI)

(b)the President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in article 61;

(c)   the President shall, ir-respective of the expiration of his term (5 years), continue to hold office until his successor enters upon his office.

•Any resignation addressed to the Vice-President shall forthwith be communicated by him to the Speaker of the House of the People.

Article 58 – Qualifications for election as President

•No person shall be eligible for election as President unless he—

(a)is a citizen of India,

(b)has completed the age of 35 years, and

(c)is qualified for election as a member of the House of the People (Lok Sabha).

A person shall not be eligible for election as President if he holds any office of profit under Union/State Government or under any local or other authority subject to the control of any of the said Governments.

Following offices will not be considered as “Office of Profit”-

  1. President – (eligible for re-election: Article 57 says that President shall be eligible for re-election. This provision does not mention the number of times a President can be re-elected. Thus, a person can be elected as President any number of times. )

2. Vice-President

3. Governor of any state

4.Minister – Union or State.

Nomination of a candidate for election to the office of President must be subscribed by at least 50 electors as proposers and 50 electors as seconders.

Article 59 – Conditions of President’s office

•The President shall not be an MP or MLA, If an MP or MLA is elected as President, then he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.

•Thus, an MP or MLA can fight in elections to the President. But, if he wins, then he has to choose one. If he enters in the office of President, then his seat in the house shall be deemed to be vacated. The President shall not hold any other office of profit. The President shall be entitled to:

•Official residences without payment of rent (i.e. Rashtrapati Bhawan), and such emoluments, allowances and privileges as may be determined by Parliament by law and if such a law is not passed then as are specified in the Second Schedule.

•The emoluments and allowances of the President shall not be diminished during his term of office.

Article 60 – Oath or affirmation by the President

•Every President and every person acting as President or discharging the functions of the President shall make and subscribe in the presence of the Chief Justice of India or, in his absence, the senior-most Judge of the Supreme Court available, an oath or affirmation. In his oath, he swears:

  1. to faithfully execute the office;
  2. to preserve, protect and defend the Constitution and the law and
  3. to devote himself to the service and well-being of the people of India.

•The Oath of Governor is also same u/a 159 with only one exception: He takes oath in presence of Chief Justice of high court or in his absence, the senior-most judge of high court.

Article 61 – Procedure for impeachment of the President

•When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament. Violation of Constitution’ is not defined.

•Any house (not Lok Sabha only) can initiate impeachment charges. However, such charges can only be initiated if following conditions are satisfied —

(a)such charge is contained in a resolution;

(b)at least 14 days’ notice in writing is given to President;

(c)before introduction, such resolution is signed by not less than one-fourth of the total number of members of the House.

•If such resolution has been passed by a majority of not less than two-thirds of the total membership of the House, then the resolution of impeachment will move to other house.

•After that, the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented at such investigation.

•If as a result of the investigation, second house also passes a resolution by a majority of not less than two-thirds of the total membership of the House, then the President is removed from his office as from the date on which the resolution is so passed.

•Thus President is removed as soon as Second house also passes resolution. There is no need to wait for election.

•The majority required for impeachment of President i.e. a majority of not less than two-thirds of the total membership of the House, is the highest majority required for any resolution in Indian Parliament. (called as “Absolute Majority”)

•Members of state assemblies and members of UTs of Delhi and Puducherry are not given participation in impeachment process, although they participate in election of President.

•But, nominated members of both the houses of Parliament can participate in impeachment, although they don’t participate in election of President.

•Vice-President acts as President until new President is elected.

•Thus President is removed as soon as Second house also passes resolution. There is no need to wait for election.

Article 65 – The Vice-President to act as President or to discharge his functions during casual vacancies in the office, or during the absence, of President

•In the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or removal, or otherwise, the Vice-President shall act as President until the date on which a new President is elected.

Article 62 says that in case of vacancy, elections to the office of President shall be held within 6 months of occurrence of such vacancy. Thus, Vice-President can hold President’s office for maximum 6 months, in case of Vacancy.

•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.

•Here the period can exceed 6 months.

•Any other cause includes foreign visit etc.

•While discharging the functions of President, the Vice-President shall have all the powers, immunities, emoluments, allowances and privileges that are available to President.

•In case the office of Vice-President is also vacant, the CJI acts as the President. If CJI is also absent, then senior most judge of SC acts as the President.

Article 70 – Discharge of President’s functions in other contingencies

•Parliament may make such provisions as it thinks fit for the discharge of the functions of the President in any contingency not provided for in Constitution.

Election of Indian President

Article 54 – Election of President

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

(a)the elected members of both Houses of Parliament; and

(b)the elected members of the Legislative Assemblies of the States.

(c)State includes the National Capital Territory of Delhi and Puducherry. (Thus, elected members of these union territories shall also participate in elections.)”

Thus, following cannot participate:

  1. Citizens.
  2. Nominated members of Lok Sabha and Rajya Sabha.
  3. Nominated members of State legislative assemblies.
  4. All members of state legislative councils.
  5. Nominated members of Delhi and Puducherry assemblies.

Why no Direct election for President:

President is not real executive.

Direct election has huge cost on exchequer.

If both President and PM are directly elected, then chances of conflict increases.

MPs and MLAs can vote in President’s election by virtue of their membership to house. Thus, if any member loses his membership of the house or house is dissolved, they cannot vote.

Article 62 – Time of holding election to fill vacancy in the office of President and the term of office of person elected to fill casual vacancy, If vacancy is due to expiration of the term of office  – Elections shall be completed before the expiration of the term.

•If vacancy occurs due to his death, resignation or removal, or otherwise – Election shall be held in no case later than six months from, the date of occurrence of the vacancy.

•The person elected to fill the vacancy shall be entitled to hold office for the full term of five years from the date on which he enters upon his office.

Article 55 – Manner of election of President

The Objective is to secure uniformity:

•Among the States.

•Between the States as a whole and the Union.

•The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.

•Each voter (MP and MLA), while casting his vote, is required to indicate his preferences by marking 1,2,3 and so on against the name of candidates.

•Initially, first preference votes are counted. If any candidate secures required quota, he is declared elected.

•If this does not happen, then, first preference votes of last candidate are cancelled and his 2nd preference votes are transferred as they are 1st preference. This process continues till a candidate secures the required quota.

•Successful candidate has to get one vote more than 50% of total votes given. This will ensure absolute majority to one candidate.

Shortcomings

•No participation to distinguished Nominated personalities of Rajya Sabha and Nominated anglo-Indians of Lok Sabha.

•No participation to citizens – party politics can’t be checked.

•No single transferable votes.

•Secret Ballot – Internal whip by parties, if any members votes against wishes of Party leadership.

Article 71 – Matters relating to, or connected with, the election of a President or Vice-President

•All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be decided by the Supreme Court whose decision shall be final.

•If the election of a person as President or Vice-President is declared void by the Supreme Court, then acts done by him, on or before the date of the decision of the Supreme Court, shall not be invalidated by reason of that declaration.

•Parliament may by law regulate any matter relating to or connected with the election of a President or Vice-President.

•The election of a person as President or Vice-President shall not be called in question on the ground of the existence of any vacancy among the members of the electoral college electing him.

Privileges

  • President is immune from criminal proceedings from official or personal acts.
  • Civil proceeding with regards to personal acts can be launched after two months.
  • Legal liability on account of official actions is null.

However his official conduct can be reviewed by court, tribunal or body authorized by either house of parliament when proceeding for impeachment are being conducted.

Powers and functions:

  1. All executive actions of state are taken in his name. Powers of the president have to be exercised with the advice of the PM + council of ministers [42nd amendment]; the 44thamendment gave the president power to advice the PM + council to reconsider the advice but if the same advice is made again he has to follow it.
  2. He can make rules specifying which orders and instruments made and executed in his name shall be authenticated.
  3. He can makes rules for more convenient transaction of business of union government and allocation of said business among ministers.
  4. He appoints PM and council of ministers and the attorney general, they occupy office during his pleasure. He appoints CEC and EC’s, CAG, Chairman and members of UPSC + finance commission + governors of state + interstate councils + administrators of UT’s.
  5. He can declare scheduled areas and tribal areas and has powers of administration of these areas. He can appoint members of SC + ST+ Womens+ OBC+ Minorities commission + Officer of Linguistic minorities.
  6. He appoints administrators to UT’s called chief commissioner, lieutenant governor or administrator.

Legislative powers of president include:

  1. Dissolving Lok Sabha. Summoning and proroguing house of parliament.
  2. Summon joint sitting of both houses to resolve deadlocks.
  3. He can send messages to the House of parliament regarding bills or otherwise.
  4. He can nominate 12 members to Rajya Sabha from fields of art, science, literature and social service.
  5. He can nominate two members of Anglo Indian community to Lok Sabha if he feels community isn’t adequately represented.
  6. He decides questions of disqualification of MP’s after advice of EC which is binding.
  7. Money bills and bill leading to alteration of boundaries of state or UT’s needs his approval before they can be introduced in the house.
  8. He lays the reports of UPSC, EC, and CAG before the house of parliament.

Ordinance making powers:

  1. He can promulgate ordinances when parliament [both houses or any one house] isn’t in session however such ordinances have to be laid before parliament within 6 weeks of its reassembly. Thus they are temporary laws. The president should be satisfied of the need to take immediate action. President’s satisfaction is subject to judicial review.
  2. Ordinance can be made only on Union list matters and Fundamental rights can’t be abridged by them.Constitutional amendments can’t be made by ordinance.
  3. Ordinances can be made by him only on advice of PM + council of ministers. It can give retrospective effect or repeal a law or tax law or other ordinance too.
  4. He can legislate by making regulations for Puducherry but only when its legislature isn’t in session or dissolved.

Misuse of Ordinance making powers: Enemy Property Ordinance, 2017

Ordinance making powers are a legacy from the Indian Council Act, 1861 which gave the executive power to circumvent the legislature in making a law. However the decision to pass the Enemy property ordinance for the fifth time after failing to get the law passed through parliament is a abuse of the powers.

The ordinance was passed specifically to nullify a decision of the Supreme court. A special article was inserted to allow the current custodian of the enemy property to dispose it by sale notwithstanding any judgment on it. This allows the government from having to hand over property to original owners.

Article 123 of the constitution clearly specifies that ordinance making powers are an emergency resort but the executive has turned it into a parallel law making source. The ordinance also redefines “enemy subject” and includes in its purview “even legal heirs of the enemy subject”.

Thus even Indian born heirs of the original owners are kept away from their ancestral property. The Ordinance thus is in complete contravention of Right to Property of these people. This must be examined for legal validity by courts.

Veto Power:

A bill can become an act only if it has received president’s assent. When a bill is given to the president he can:

  1. Give his assent [compulsory for constitutional amendments]
  2. Take no action on bill of legislature / Pocket veto. [only for ordinary bills / money bills]
  3. Withhold his assent / Absolute veto [only for ordinary bills / money bills]
  4. Return the bill for reconsideration / Suspensive veto. However if the bill is again passed by parliament then he has to give his assent to it. [ only for ordinary bills ]

Qualified veto i.e. legislature can override presidential decision to return bill by a higher majority than what passed the bill isn’t available in Indian system unlike USA.

Above powers are also applicable to bills reserved for his assent by the governor; However for such State bills he can return them for reconsideration any number of times.

Financial Powers:

  1. Money bills can be introduced in house only after his assent.
  2. He constitutes a finance commission after every five years.
  3. He causes to be laid the annual financial statement before parliament.
  4. No demand for grant can be made except on his recommendation.
  5. He can make advances out of the contingency fund of India for meeting unforeseen circumstances.

Judicial Powers:

  1. He appoints judges of SC and HC’s.
  2. He can grant pardon [remove sentence and conviction], remit [reduce sentence but not its character], reprieve [stay on execution for a temporary period], commute [substitute sentence with a lighter form] or respite [award lesser sentence due to special factors of convict] sentence of a convict sentenced under union law, court martial or sentenced to death under any law.
  3. He can seek advice from the SC on any question of law or fact; such advice is not binding on him.

Diplomatic Powers:

He negotiates international treaties and agreements of India. However they are subject to the approval of parliament.

Military Powers:

He is the supreme commander of defence forces. He appoints chiefs of army, navy and air force. He declares war or concludes peace subject to parliament’s approval.

Discretionary power:

1. He can decide appointment of PM when no party has clear majority.

A caretaker government cant take a policy decision and president can decide what is policy decision.

2. Dismiss the council of ministers when it loses majority in Lok Sabha

3. Dissolve the Lok Sabha if the council of ministers has lost the support in the house

Vice-President of India

Eligibility to become Vice-President of India

As per article 66, the candidate contesting for election of Vice-President of India should fulfill the below conditions:

  • He must be a citizen of India
  • He must have completed age of 35 years
  • He cannot hold an office for profit.
  • He must be qualified to become a member of Rajya Sabha.

Thus, while presidential candidate should be qualified to become a member of Lok Sabha, Vice-presidential candidate should be qualified to become a member of Rajya Sabha. In reality it does not make much difference because minimum age for Lok Sabha MP is 25 years and that of Rajya Sabha MP is 30 years. This condition has been already overridden because both presidential and vice-presidential candidates should have completed 35 years.

Election, term of office, removal, Oath

Like Presidential election, election of vice president is held via system of proportional representation by means of the single transferable vote {indirect election}. However, Vice President is elected by Lok Sabha and Rajya Sabha MPs. The MLAs or MLCs have no role to play here. This sounds to be an anomaly but it is justified by giving logic that Vice President works as president of the whole country in rare occasions when President is not available. In normal circumstances, his work is to preside the Rajya Sabha.

Joint Sitting in Election of Vice-President

The original constitution laid down the method of election of Vice President of India by members of both Houses of Parliament assembled at a joint meeting. However, later it was felt that the requirement that both houses should assemble at a joint sitting for the election of the Vice-President, is unnecessary and has practical difficulties. So, this difficulty was removed via 11th amendment in 1961. Since then, the method of voting is same as that in case of election of President.

Doubts and Disputes in election

The doubt and dispute arising out of election of President and / or Vice President can be challenged in the Supreme Court.

Term and removal

The term of office of the Vice President is five years. The term may end earlier by resignation which should be addressed to the President. The term may also terminate earlier by removal. The Vice President can be removed by a resolution by the members of the Rajya Sabha. To move such resolution, a 14 days’ notice is to be given. Such a resolution, though passed by the Rajya Sabha only, but must be agreeable to the Lok Sabha. There is no need of impeachment of Vice President for removal.

Functions of Vice President

Vice President is the executive Chairman of the Rajya Sabha and cannot hold any other office of the profit. However, during the period when he/ she acts as the officiating President of India, he / she shall not act as chairman of the Rajya Sabha and shall not be entitled to the salary or allowances payable to the chairman of the Rajya Sabha. Article 65 says that in case the President is unable to discharge his/ her duties for reasons such as illness, resignation, removal, death or otherwise, the Vice President shall carry out functions of the President. In such case, he/ she shall be entitled for the salary, allowance and all privileges of the President.

Notable points about President and Vice-President

  1. While office of President is designed on British model, office of Vice-President of India is designed on lines of American Vice-President.
  2. While presidential candidate should be qualified to be a Lok Sabha MP, Vice-Presidential candidate should be qualified to be a Rajya Sabha MP.
  3. While the president takes the oath of office to preserve, protect and defend the Constitution, Vice President takes oath of true faith and allegiance to the Constitution.
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