President: Qualification, Election, Powers, Removal

President

• Elected for 5-year term & eligible for re-election.
• Executive head of India & all the executive powers of the union shall be vested in him
• Supreme commander of the arm forces
• 1^st citizen of India & occupies 1^st position under warrant of precedence

Executive powers vested in president shall be exercise on advice of COM responsible to the parliament, however, 42^nd amendment made it obligatory for the president to accept advice of COM.

Election of President: Article 54

The President of India is elected indirectly by the Electoral College according to secret ballot by the system of proportional representation through single transferable वोट। The President of India is elected by an electoral college consisting of:

• Elected members of the two Houses of Parliament and Legislative Assemblies of the States
• States includes national capital territory of Delhi and the Union territory of Pondicherry.

Do Not Participate

• Nominated members of both the houses of the parliament & of state legislative assemblies
• All the members of legislative council of states

There shall be uniformity in the scale of representation of the different states at the election of the President as follows:

• Value of vote of an MLA of a state: (Population of state / Total number of elected members of state legislative assembly) * 100
• Value of vote of an MP: (Total value of votes of MLAs of all states/ Total number of elected members parliament) * 100

• Hence, value of vote of MLA of UP is highest & value of vote of MLA of Sikkim is lowest.
• By 42^nd amendment, census of 1971 was to be followed till 1^st census after 2000, but in 2000, Union cabinet extended the same till 1^st census after 2026 by 81^st amendment 2001.

For a candidate to be President, one must fulfill electoral quota

Electoral Quota: (Total number of valid votes polled / 2) + 1

• Candidate with last position gets eliminated & 2^nd preference of all ballots, who ranked eliminated candidate 1st, is added to all accordingly. This process is followed till someone fulfil electoral quota.
• Dispute regarding election of president (Article 71) or vice president is inquired & decided by supreme court whose decision is final.
• Article 71 further states that no such disputes can be raised on the grounds of any vacancy in electoral college.

Article 58 → Qualification for election of President

• Must be citizen of India
• Must be of 35 years of age
• Must be qualified for election for member of house of the people (LS)
• Must not hold any office of profit under Gov. of India or Gov. of any state or any local or other authority.

Following persons shall not be deemed to hold any office of profit, hence are qualified for being a candidate for presidential election:

• President
• Vice President
• Governor of any state
• MP / MLA

• Nomination of a candidate for election to the office of President must be subscribed by atleast 50 electors as proposers & 50 electors as seconders
• Every candidate has to make a security deposit of Rs. 15000 in RBI, liable to be forfeited in case candidate fails to secure 1/6^th of the votes polled

Conditions to Presidential Office

• Shall not be member of any house of the parliament or state legislature & if he is, then must vacate the seat
• Shall not held any other office of profit
• Parliament law 2008: Pay of Rs. 1,50,000 monthly & official residence without pay.
• Pension of 9 lakhs / annum

Immunities to the President

• Personal immunity from legal liabilities for his official acts
• Immune from any criminal proceeding during his terms of office means cannot be imprisoned or arrested, However, civil proceedings can be instituted in his term of office w.r.t his personal acts, giving 2 months of notice prior to the proceedings

Oath by President (Article 60)

• President takes oath in presence of chief justice of Supreme Court “To preserve, protect & defend the constitution & law”.

Terms of office of President (Article 56)

• President shall hold the office for terms of 5 years from the date he enters upon his office. Even after expiry of his terms, he shall continue in office until his successor enters upon his office
• May resign his office before the expiry of his normal terms of 5 years by writing to the vice president

Article 61 (Impeachment of the President)

Power of impeachment of president lies in parliament only for violation of the constitution & can be removed from his office before the period of 5 years (Quasi-judicial process)

• Impeachment resolution can be initiated in any house of the parliament
• Resolution initiated must be signed by 1/4^th of the candidate of the initiating house
• Before the resolution is passed, a 14 days’ notice must be given to the president
• Such a resolution must be passed by majority of not less than 2/3^rd of total membership of the initiating house
• Then the other house of the parliament also called investigating house investigates the charges by itself
• President has the right to appear & to be represented at such investigation to defend himself
• If as a result of investigation, other house also passes a resolution supported by not less than 2/3^rd of total membership of the house, President stands removed from his office, from the date investigating house passed the resolution
• Other than impeachment, no other penalty can be imposed on the president for violation of the constitution

Process of impeachment of President is deficient on following accounts:

• Term ‘violation of constitution is very vague term & has not been defined anywhere in the constitution’.
• Elected members of legislative assemblies have no role to play in impeachment proceeding while they have a role in election of the president
• Nominated members of parliament have the right to deliberate & vote when the resolution of impeachment is under consideration while they have no vote in election of president
• Procedure & authority to investigate the charges against president have not been specified nor any definite time period has been specified

Vacancy in President’s Rule

• In case, office of president falls vacant due to death, resignation or removal of President, Then Vice president or in his absence Chief justice of India or in his absence Senior most judge of SC becomes the president until next elections are held & new president assumes the office
• President’s office can remain vacant for max. of 6 months
• If president is not able to discharge his duties due to sickness or absence or due to any other reason than the vice president discharges the functions of President (VP is entitled to the same allowances & privileges of President during this period)

Article 53: Executive powers of the union shall be vested in president & shall be exercised by him either directly or indirectly or through officers subordinate to him, But always in accordance with the constitution.

Executive powers → Powers of carry out administration of affairs of the state, except functions of legislature & judiciary

Administrative Powers of president

Powers to appoint

• Prime minister of India
• Attorney General of India
• Comptroller & Auditor general of India
• Judges of Supreme Court & High court
• Governor of the states
• Finance commissioner & its members
• Members of UPSC & Joint commissions for group of states
• Chief election commissioner & its members
• Chairman & members of SC & ST of commissions

• In fact every appointment of union government is made in the name of president or under his authority.
• He directly administers the Union territories through administration appointed by him
• President can declare any area as scheduled area & has powers w.r.t administration of schedule areas & Tribal areas.

Power to remove

• His ministers’ individually
• Attorney general of India
• Governor of the state
• Chairman of UPSC or state administration on report of SC
• Judges of SC or HC
• Chief election commissioner
• Comptroller & auditor general of India
• Finance commissioner

(Removal mainly based on the address of the parliament)

Legislative Powers

• Summons the houses of parliament atleast twice a year, Prorogue either house & can dissolve Lok sabha
• Nominates 12 members of Rajya Sabha & may nominate 2 representatives of Anglo Indian community to Lok Sabha
• May address either house seperately or jointly or can send messages to them. At the commencement of 1^st session of parliament annually, President delivers an address corresponding to queens speech from the throne in British parliament.
• Every bill passed by parliament must receive presidential assent before it can become an act. President may give his assent or withhold or return it for reconsideration along with his own suggestions (Except money bill and constitutional amendment bill)
• But if the bill is passed again with or without the amendments President is bound to give his assents to it

President makes certain reports & statements to be laid before parliament as stated below:

• Annual financial statement (Budget) & supplementary statement
• Auditor General Report relating to accounts of government of India
• Recommendation made by finance commission
• Report of UPSC, explaining the reasons where any advice of the commission has not been accepted
• Report of National commission for SCs & STs
• Report of special officers for linguistic minorities

Certain bills (Bill for formation of new states or alteration of boundaries of states, money bill, financial) needs presidential recommendations for introduction in parliament

Veto powers of the President

Absolute Veto: Power of president to withhold his assent to a bill passed in parliament. The bill then ends & does not become an act. If before passing assent to a bill, ministry resigns & a new COM is formed, then on its advice President can use his veto powers against the bill . (In 1954, Rajendra prasad withheld his assent to PEPSU appropriation bill)

Suspensive Veto: Power of president to return a bill passed in parliament for reconsideration (except money Bill)

Pocket Veto: No time frame for President to give his assent or refuse i.e. pocket a bill for infinite times (Not for constitutional amendment bill as 24^th amendment 1971, made it obligatory for the president to give his assent to constitutional amendment bill

Ordinance making powers of the President

Ordinances – interim or temporary legislation laws → President can issue ordinances only on subjects’ parliament can legislate or make laws with same limitations as of parliament

President promulgate ordinances (authoritive order) under article 123 mainly when either or both the houses of parliament are not in session & immediate action is needed

A Presidential ordinance has same force & effect as an act of parliament. However, it must be laid down before both the houses of the parliament & must be approved by both the houses within 6 weeks from re-assembly of houses. Failure to comply with this condition or parliamentary disapproval within 6 weeks period will make ordinance invalid

Judicial Powers (Basically Pardoning Powers)

• Where the punishment or sentence is by court martial
• Where the punishment is for offence against union law
• In all cases where sentence is death sentence “Only authority for pardoning a death sentence”

Pardon: Can rescinds both conviction & sentence + can absolve the offender from all offences & disqualification

Reprieve: Can make stay of execution of a sentence (esp. of death) for pardon or commutation

Remission: To reduce amount of sentence without changing its character (ex. 6 months for 1 year)

Respite: Awarding a lesser sentence instead of a prescribed penalty in view of special facts (ex. in case of pregnant women offender)

Commutation: Substitutes one form of punishment for another or lighter character

Emergency Powers

National Emergency → Article 352 → On grounds of threat to security of India or any part of it , By war, external aggression or armed rebellion

Presidential Rule → Article 356 → Proclamation for taking over the administration of a state, when state government cannot carry out administration in state in accordance with provisions of the constitution

Financial Emergency → Article 360 → When financial stability of credit of India or any part thereof is threatened

“Any proclamation under the emergency powers of the president, in order to be in operation beyond a certain period, should be approved by parliament within the period so specified by parliament”.

Financial Powers

• It is only on the permission of president that annual financial statement (Budget) is laid down before the parliament.
• Recommends the introduction of money bill & financial bill in parliament.
• Constitutes finance commission after every five years.
• Controls contingency fund for unforeseen expenses like flood, drought, war etc.
• Places report of CAG before parliament & recommendations of Finance commission

Military Powers

• Supreme commander of armed forces
• Has power to declare war & peace
• But his military powers are subjected to the regulations of law, therefore, parliament has the real power to regulate or control the exercise of such powers

Diplomatic Powers

• Sends & receive ambassadors & other diplomatic representatives.
• All treaties & international agreements are negotiated & amended in the name of president, though subjected to ratification by parliament. 

President’s Position

• Whenever constitution requires the satisfaction of the president, it is not his personal satisfaction, but is the satisfaction of COMs
• It is obligatory for the president to always have a C.O.M
• Even after dissolution of lower house (Lok Sabha) of parliament, COMis in existence to aid & advice the president in exercise of his executive powers
• If he ignores the advice of COMs or acts contrary to advice of COMs, he can be impeached for violation of constitution

42^nd amendment, 1976 →Amended article 74 & made advice of COMs binding for the president

44^th amendment 1978 → Further amended 74^th article that President may require COMs to reconsider an advice but is bound to act after reconsideration.

Though president is not connected with decision making power of the cabinet, yet article 78 A, casts on PM to keep President informed of all cabinet decisions, concerning administration of affairs of the union & proposal for लेजिस्लेशन। Under some circumstances, president has to act as per his own wisdom, sense of justice & discretion:

• Appointment of PM, under situation when no single political party commands clear majority support of lok sabha
• Appointing a PM in case of vacancy due to sudden death & availability of no acknowledged leader, due to inability of legislature party to do so and absence of settled seniority among cabinet members; name of PM is proposed from outside
• Dissolution of Lok sabha on advice of COMs which has lost the support of majority members of lok sabha or against whom a motion of no confidence has been passed
• Dismissing ministries, in case COMs has lost the confidence of lower house of the parliament but still refuses to resign.