5j. Polity - President

7/23/2019 5j. Polity - President

1/27

Chapter in Detail:

India adopted the Westminster model of democracy where the Parliament issupreme and the political executive composed of the Union Council ofMinisters headed by the Prime Minister is the head of the Government- defacto head. President is the lead of tate and is the nominal head- counterpartof the !ritish monarch- de "ure head.President# as the $ead of the tate# symbolises the nation. In somedemocratic systems# the head of the tate is also the head of the %overnmentand# therefore# he is also the head of the political executive. &he UPresidency represents this form. In !ritain# the monarch is the symbolic head#representin% - the !ritish nation. &he powers of the Government are vested inthe Cabinet headed by the Prime Minister. &he President of India is the first

citi'en and represents the Indian nation and does not# therefore# belon% to anyparticular political party. $e is lar%ely ceremonial in his status.

(rticle )* states that there shall be a President of India.

(ccordin% to (rt. )+# the executive powers of the Union shall be vested in thePresident.

Ques. 1 : Election of the President has became more political in naturerather than constitutional. Examine?

(ns. Constituent (ssembly debated whether the President should be directlyor indirectly elected. ome preferred direct election of the President.&hesu%%estion was re"ected on the followin% %rounds

If President of India is elected directly by people# it will be a partisan

election- the President will represent a particular political party whichdenies the office universal character. $e may not wor, impartially

econdly# a directly elected Chief xecutive will insist on en"oyin% real

powers and not satisfied with a ceremonial role and thus clash with thecouncil of ministers# particularly if the Presidency and the Council ofMinisters come from different parties.

( middle course was chosen by the framers of the Indian Constitution byhavin% an electoral colle%e with elected representatives from parliament andthe state assemblies.


2/27

Article 54 of the constitution sas:

&he President shall be elected by the members of an electoral colle%econsistin% of-

&he elected members of both $ouses of Parliament and

&he elected members of the e%islative (ssemblies of the tates

/includin% 0ational Capital &erritory of 1elhi and the Union &erritory ofPuduchery after the Constitution 23th amendment (ct# 455*6.

In India# no special electoral colle%e is elected# as in the case of (merica /inthe U(# members of electoral colle%e are elected by the people.6 In India theelectoral colle%e is made up of the elected MPs and elected M(s of all states

and the two U&s of 0C& of 1elhi and Puduchery. lection of the President ofIndia is by the system of proportional representation by means of sin%letransferable vote as provided by (rticle ))/+6 of the Constitution.

&he nominated members of Parliament and le%islative assemblies have nori%ht to vote in the election. imilarly# the members of the e%islative Councilsof the tate e%islatures have also been excluded from the electoral colle%e.

Ques. ! : "he #first past the post sstem$ cannot be applied to the

Presidents election. In this context examine the procedure of election of President in India. Doyou think it is fedual is nature?

(ns. &he Constitution provides for the election of the President by the systemof proportional representation by means of the sin%le transferable vote. &wofundamental principles are laid down in (rt. ))

&o secure as far as possible# uniformity in the scale of representation of

different tates of the Union

&o secure parity between the tates as a whole and the Union in order

to do "ustice to federal idea.

%or the purpose of securin& such uniformit and parit the follo'in&method is laid do'n:

ach member of the electoral colle%e who is an elected member of a tatee%islative (ssembly will have a number of votes calculated as follows.


3/27

&otal Population of the tate /by 4524 census6 is divided by total number ofelected M(s. &he resultant number is further divided by 4333. 7ractionsexceedin% one half bein% counted as one8

"otal population of the state

"otal number of elected member ( 1)))

&he value of the vote of an elected member of the assembly of each tate isfound out. &he number of elected M(s is ,nown. &otal number of votesassi%ned to the elected members of all the tate 9 U& assemblies iscalculated. It is divided by total number of elected members of both houses ofthe Parliament to arrive at the value of the vote of an elected MP. &hus#centre-state parity is respected /(rt.))6.Uniformity in the scale of representation of states is arrived at by followin% the

same principle for fixin% the value of the vote of an elected M( for all states.

Proportional *epresentation

(rticle ))/+6 of Indian Constitution re:uires that the President should beelected in accordance with the system of proportional representation bymeans of the sin%le transferable vote.

In the ordinary mode of election ,nown as ;strai%ht votin% systemfirstpast the post system= or ?winner ta,es all system># a candidate %ettin% pluralityof votes- relative ma"ority /more than the nearest rival6 is elected even if# inpercenta%e terms# it means a minority of the electorate. It means he has morevotes than any of his rivals. @ery often such candidates secure far less thansimple ma"ority of votes polled.

&he first past the post= principle cannot be applied for Presidential election forthe reason that the President should have a ma"ority of the votes cast as herepresents the nation. &herefore# proportional representation is prescribedwhere the President is bound to secure a ma"ority of votes.

Proportional Aepresentation as adopted in the Presidential elections is calledthe ?in%le &ransferable @ote


4/27

preferences counted and they are distributed amon% those in the fray. &heprocess continues till such time that a candidate is finally elected. &hus# votesare ?transferable=.

Quota of +otesUnder the Proportional Aepresentation system# a :uota is fixed for bein%electcd. (ny member who secures the necessary :uota of votes is declaredelected. Buota is arrived at by dividin% the total number of valid votes cast

by the members of the electoral college divided by the total numbers of candidates to be electedplus one and one is added to the quotient. The formula may be represented as follos! "

Total number of valid votes cast

Buata --------------------------------- D 4

&otal umber of seats to be filled D 4

upposin% there are 433 valid votin% papers and four seats are to be filled up.(ccordin% to the above formula# :uota is *4. (fter the :uota is fixed# anycandidate whose total number of first preference votes is e:ual to or exceedsthe :uota is declared elected.

Elimination of the ,ottom Candidate

If a candidate is elected in first count# the election is completed. !ut if nocandidate %ets :uota in the first count# the process of selection continues byeliminatin% the candidate who has the least number of first preferences. $issecond preference votes are transfered to those in the fray. &he processcontinues till the candidate is elected./7or the Aa"ya abha elections# there is a small but si%nificant chan%e in thesystem8 In case of ade:uate number not %ettin% the :uota# surplus votes# ifany# from the elected members are transferred to those in the contest6.

"he follo'in& facts ma-e the presidenc a federalinstitution:

lectoral colle%e has e%islative (ssemblies of tates

&here is parity between centre and the tates


5/27

&he election to the offices of the President and the @ice- President arere%ulated by the Presidential and @ice-Presidential lections (ct# 45)*. 7orthe purposes of these elections# it has been the established practice that theecretary-General of the o, abha or the Aa"ya abha is appointed by thelection Commission as returnin% officer alon% with one or more assistantreturnin% officers.

&he nomination for a presidential candidate has to be proposed and secondedby )3 electors each. &he security deposit is As 4)#333 which is forfeited if thecandidate does not %et at least 494Eth of the total valid vote.

(n election petition callin% in :uestion an election to the office of the Presidentmay be presented within +3 days from the date of publication of the result ofelection to the upreme Court by any candidate at such election or any twentyor more electors "oined to%ether as petitioners.

1th Presidential Election

&he lection Commission of India held indirect 4+th presidential elections ofIndia in Fuly *332. mt. Pratibha Patil with E+#44E votes won over hernearest rival hri !hairon in%h he,hawat who secured ++4#+3E votes. mt.Pratibha Patil became the first woman President of India.

hri !hairon in%h he,hawat# @ice President contested but did not resi%nbefore fillin% his nomination papers as it was not an office of profit and there

was no Constitutional need to resi%n. mt. Pratibha Patil# however# resi%nedas Governor of Aa"asthan# before contestin% as it was her personal decisionand there was no Constitutional compulsion.

mt. Patil was the 4*th President and the election was the 4+th one as !abuAa"endra Prasad held the position for two terms- 45)*-E*.

Conscience /ote and the ri&ht to abstain from /otin&

!efore the 4+th Presidential elections# there was a demand from some

political parties that abstention from presidential election should be declaredunconstitutional. &he demand was made as some political parties decided notto participate.

lection Commission ruled that elected MPs and M(s are free to abstainfrom votin% in the Presidential election.


6/27

#ccording to the $lection %ommission& voting at election to the office of President of India is not

compulsory similar to voting at elections to the 'ouse of the People and (tate )egislatures here

also there is no compulsion to vote. The *electoral right of a voter is defined in (ection l+l# ,b-of the Indian Penal %ode to mean the right of a person to vote or refrain from voting at election.

Thus& every elector at the Presidential election has the freedom of making a choice to vote for

any of the candidates or not to vote at the election& as per his free ill and choice.

Political parties cannot issue any direction or whip to their members to vote ina particular manner or not to vote at the election leavin% them with no choice#as that would tantamount to the offence of undue influence within the meanin%of section 424C of the IPC.

lection to the office of President is different from votin% by a member ofParliament or tate e%islature inside the $ouse and that# as held by the$on=ble upreme Court# the provisions of the &enth chedule to the

Constitution of India do not apply to the votin% at the Presidential election.upreme Court in Huldip 0ayar @s Union of India *33E explained that anelector would not attract the penal provisions of the &enth chedule for votin%accordin% to his conscience at the Aa"ya abha election. lectin% a memberto the Aa"ya abha is a non-le%islative activity and not a proceedin% within thee%islature as the apex court observed in the Pashupati 0ath u,til @s 0emChandra Fain case 45. In sum# le%islative activity is within the le%islatures.

&he electors of the electoral colle%e vote at the Presidential election asmembers of the said electoral colle%e and the votin% at such election is

outside the $ouse concerned and not a part of the proceedin% of the $ouse.(ccordin%ly# votin% or not votin% will not come within the ambit ofdis:ualification under the &enth chedule to the Constitution of India /anti-defection law6 and the electors are at liberty to vote or not to vote at thePresidential election as per their own free will and choice. &hus# there isconscience vote.

0umber of /otes for respecti/e state in the 1th Presidential election!)):

0umber of +alue of "otal /alue

&otal elected Members of Parliament8 o, abha /)+6 D Aa"ya abha

/*++6 22E

&otal number of elected members of (ssemblies8 4*3


7/27

&otal number of electors M(s D MPs 5E

&otal number of votes 435*

lection of the President can be held even if some seats in the lectoralColle%e are vacant. uch election cannot be called in :uestion on the %round

of any vacancy existin% for any reason. &he phrase# ;the elected members of

e%islative (ssemblies of tates< means only those who are actually in office

at the time of Presidential lection.

&he elected members of a suspended (ssembly /(rticle +)E6 are entitled to

ta,e part in the Presidential election.

lection of the President by a lame-duc, lectoral Colle%e- where the o,

abha members are not present as the is dissolved at the time of

Presidential election# is an open :uestion and there is no Constitutional or

statutory law in this re%ard.

Bualifications /(rt.)6

( person eli%ible for election as President should be

( citi'en of India

0ot less than thirty-five years in a%e

hould be :ualified to be a member of the o, abha and

hould not hold an office of profit under the Government. &he offices of

the President# @ice-President# Governor of a tate or the Minister for the

Union or a tate# are not offices of profit for this purpose. Certain offices

of profit under the Government have also been declared as not to

dis:ualify the holders thereof for bein% chosen as President. ( Member

of Parliament or of a tate e%islature includin% the respective Presidin%Jfficers can see, 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 tate e%islature as the case may be# on the date on

which he enters upon his office as President.

&erm of Jffice /(rt.)E6


8/27

&he President holds office for a term of five years from the date on which he

enters upon his office. ven after the term expires# he continues to hold his

office until his successor enters upon the office.

&he Presidential election must be held before the expiration of his term of

office. &he lection Commission shall issue the notification on or as soon asconveniently may be# after# the sixtieth day before the expiration of the term of

office of the out-%oin% President.

(ccordin% to (rt. )2# he is eli%ible for reKelection.

&he President may resi%n before the expiration of his term of office by writin% -

under his hand addressed to the @ice-President. &he resi%nation is forthwith

re:uired to he communicated to the pea,er of the o, abha.

President %ets emoluments of As. 4#)3#333 per month.

Impeachment /(rt. E46

&he President may be removed from office before the expiration of his term by

impeachment for violation of the Constitution. &he process is as follows8

&he char%e may be preferred /initiated6 by other $ouse of Parliament.

Conditions are the followin%8-

(tleast fourteen days= notice in writin%

hould be si%ned by not less than one-fourth of the total number of

members of the $ouse and

uch resolution should be passed by a ma"ority of not less than two-

thirds of the total membership of the $ouse in which the resolution

ori%inates.

When a char%e has been so preferred by either $ouse of Parliament# theother $ouse will investi%ate the

charge or cause the charge to be investigated. The President has the right to appear and to berepresented at such investigation.


9/27

If the investi%ation upholds the char%es of violation of Constitution a%ainst thePresident and a resolution is passed by a ma"ority of not less than two-thirdsof the total membership of the other $ouse# President stands removed.

2ath of 2ffice!efore the President enters upon his office# an oath of office is administered tohim by the Chief Fustice of India or in his absence# by the senior-most Fud%eof the upreme Court available# in the form set out in (rt E3 of theConstitution. &he President ta,es oath9affirmation to protect# preserve anddefend the Constitution.

3uccession to Presidenc Art.!6

&he Constitution provides that where a vacancy in the office of the Presidentoccurs by reason of his death# resi%nation or removal or otherwise# the @ice-President acts as the President until the new President enters upon his officeand the election is re:uired to be held within six months from the date ofoccurrence of the vacancy. &he Constitution also provides that when thePresident is unable to dischar%e his functions owin% to absence# illness# orany other cause# the @ice-President shall dischar%e his functions until the dateon which the President resumes his duties.$owever# the Constitution does not provide for cases where a vacancy occursin the offices both of the President and the @ice-President simultaneously# or

where the @ice-President while actin% as# or dischar%in% the functions of# thePresident is unable to do so. &he Constitution has# therefore# empoweredParliament to ma,e such provisions as it thin,s fit for the dischar%e of thefunctions of the President in any contin%ency not provided for in theConstitution. Parliament has accordin%ly# enacted the President /1ischar%e of7unctions6 (ct# 45E5# whereunder in such cases# the Chief Fustice of India or#in his absence# the senior-most Fud%e of the upreme Court dischar%es thefunctions of the President.

When the @ice-President# hri @.@. Giri# who was actin% as the President in

the vacancy caused by the death of the President# 1r. La,ir $usain# resi%nedfrom the office of the @ice-President in 45E5# the Chief Fustice of India# hri M.$idayatullah# dischar%ed the functions of the President.

President$s pri/ile&es

&he privile%es of the President are the followin%


10/27

n"oys immunity for the official acts /(rt. +E46

0o criminal proceedin%s can be instituted a%ainst him for his official and

personal acts while he is in office

Civil proceedin%s can not be instituted for his official acts but in his

personal actions# they can be instituted only after a two months notice.

7ndependence of the 2ffice of the President

&he independence is maintained by the followin% Constitutional provisions

fixity of tenure- ) years term

impeachment process bein% a difficult one

(rt. +E4 and "udicial immunity

Immunity a%ainst criminal and civil proceedin%s

moluments etc are fixed by the Parliament and can not be reduced

while he is in service.

Ques. : Discuss the executi/e and 8udicial po'ers of the President of

7ndia?

(ns. President is the $ead of the executive of the country. &he entireadministration the country is run in his name.

Executi/e or Administrati/e Po'ers

While there is no definition of executive powers in the Constitution# theybasically refer to policy ma,in% policy execution appointment and removal ofhi%h Constitutional di%nitaries for

the purpose and related matters.

#rt. / says that all executive poers of the 0nion are vested in the President. The President can

exercise them on his on or by his subordinates. The President appoints the prime 1inister andon his advice other ministers in the %ouncil.


11/27

President can see, information from the Prime Ministers and also enforcecollective-responsibility of the Council of Ministers which is the centre piece ofpolicy ma,in% in the parliamentary system of democracy /(rt.26.President has si%nificant powers with re%ard to the 7ifth and ixth cheduleprovisions in relation to tribals. $e can declare that an area in a state is ascheduled area.President directly administers the U&s.$owever# the JWC7 of the President# li,e in other fields# are sub"ect to theadvice of the Council of Ministers headed by the Prime Minister /(rt.26.

(ppointments made by the President

President appoints the follo'in&:9

Prime Minister and on his advice rest of the Union Council of Ministers

Governors of tates

Fud%es of the upreme Court and $i%h Courts

Chief lection Commissioners and the two other lection

Commissioners and Ae%ional lection Commissioners# if any

C(G

UPC Chairman and members

Chairmen and members of the statutory commissions li,e 0$AC#

Minorities Commission etc

Chairman and members of the 7inance Commission every five years

pecial Jfficer for in%uistic Minorities.

(ttorney General

&he power of removal in some cases rests with the President. 7or example#the Governor of the state# (ttorney General etc hold office durin% the time theyen"oy the pleasure of the President. Jthers can be removed by elaborateprocedures- C and $C "ud%es can be removed by a parliamentary vote by aspecial ma"ority for ?proved misbehaviour and incapacity= and on that basis thePresident removes them. imilar is the case with C(G and Chief lection


12/27

Commissioner. lection Commissioners are however removed by thePresident on the advice of the Chief lection Commissioner. UPC members#under certain circumstances are removed by him.

Diplomatic Po'ers&he diplomatic powers of the President include the followin%

(ll treaties and a%reements are si%ned by India in the name of the

President

$e appoints $i%h Commissioners of India /ambassadors to

Commonwealth countries are called $i%h Commissioners6 andambassadors and receives the credentials of the ambassadors and

$i%h Commissioners of other countries.

ilitar Po'ers

&hey are the followin%

4. $e is the upreme Commander of 1efence 7orces and

*. War and peace are declared in his name

Ques. 4 : President bein& the constituted head of 7ndia; do ou thin- thatthere is need for 8udicial re/ie' to the 8udicial po'ers of President of7ndia? Examne the statement in li&ht of the increasin& pendenc ofdeath cases in 7ndia?

(ns.

"he President

(ppoints the Chief Fustice and other "ud%es of the of the upreme Court

and $i%h Courts

Aemoves the "ud%es mentioned above if the two $ouses of the

Parliament pass resolutions to that effect by special ma"ority for ?provedmisbehaviour and incapacity= /(rt. 4*6

May see, the advisory opinion of the upreme Court /(rt. 4+6


13/27

erc Po'ers

&he President can issue the followin% orders of mercy to the convictedciti'ens of India /(rt.2*6

Pardon means absolvin% the convict of all %uilt and punishment

Commutation is reduction of punishment from death sentence to life imprisonment

Aemission is :uantitative reduction of punishment without affectin% the nature ofpunishment# for example# * years of ri%orous punishment becomes 4 year of ri%orouspunishment

Aespite means reduction of punishment in view of a special fact# for example#pre%nancy or old a%e

Aeprieve is stay of death sentence or life imprisonment pendin% an appeal forpardon or commutation.

President$s Clemenc Po'ers: Critical Appraisal

&he need for the mercy powers of the President is the followin%

&he importance of (rt. *4 which %uarantees ri%ht to life

7allibility of the "ud%ement of the apex court

&he "udicial verdict may be too harsh and deserves relief

!ased on the same evidence and on some other factors li,e remorse#

record of behaviour and so on# the President can either %ive relief partlyor wholly

&he power so entrusted is a power belon%in% to the people and reposed

in the hi%hest di%nitary of the tate.

&hus# the President acts in a wholly different plane from that of the Court. It isa Constitutional responsibility and is meant for the benefit of the convict aswell as the people at lar%e whose faith in the criminal "ustice system needs tobe sustained.


14/27

&he "udicial power and the xecutive power over sentences are different. &orender "ud%ment is a "udicial function. &o carry the "ud%ment into effect is anxecutive function. &o cut short a sentence by an act of mercy is an exerciseof executive power. &herefore# the pardonin% power of the President is anexecutive power.

very civilised country in its Constitution or in its laws proves for a power to%rant pardon or remission of sentence (rticles 2* and 4E4 of our Constitutionconfer this power on the President and the Governor# respectively. It is settledlaw that this power is to be exercised in accordance with ministerial adviceand not by exercise of the President=s or the Governor=s individual discretion.&he rationale of the pardon power is public faith in the humaneness of law-the President bein% the symbol of people in a republican country li,e# ours.

"he follo'in& are the le&itimate and rele/ant considerations for exercise

of the pardon po'er

seriousness of the offence

there is a shade of doubt about the convict=s %uilt

the health of the prisoner# especially any serious illness from which he

may be sufferin%

post-conviction conduct# character and reputation

remorse and atonement

the effect on the family members of the victim

the period of imprisonment under%one and the remainin% period interest

of society and the convict .

upreme Court has cate%orically ruled that the power of pardon cannot be

exercised for political considerations. It has farther held that considerations ofreli%ion# caste# colour or political loyalty can not come into the field.xercise of power of pardon is not immune from "udicial scrutiny. Courts inexercise of "udicial review have interfered with orders of pardon or remissionwhen it is established that the order was malafide or is arbitrary.


15/27

(ccordin% to (rt. 25# Parliament consists of the President and the two $ousesof Parliament the Council of tates /Aa"ya ahha6 and the $ouse of thePeople /o, abha6. &hus the President is the $ead of executive as well as aconstituent part of Parliament. President is made a component part of theParliament as every !ill passed by the $ouses of Parliament has to bereserved for the assent of the President under article 444.

3ummon; Proro&ue and Dissol/e

President summons from time to time each $ouse of Parliament# may from time to timeproro%ue the $ouses or either $ouse and dissolve the o, abha /(rt.)6. ummonmeans to call the $ouse into session. Proro%ue means to terminate a session. 1issolvemeans to end the life of o, abha and pave way for elections to constitute a new o,abha which is mandatory every five years except durin% national emer%ency.

Address the Parliament and send messa&es

(t the commencement of the first session after each %eneral election to theo, abha and at the commencement of the first session of each year/calendar year6# /&he President addresses both $ouses of Parliamentassembled to%ether and informs Parliament of the causes of its ummons/(rt. 26. $e has also the ri%ht to address either $ouse of Parliament or both$ouses assembled to%ether and send messa%es to either $ouse# whetherwith respect to a !ill then pendin% in Parliament or otherwise /(rt. E6.President has a messa%e twice under this provision since the commencementof the Constitution

Aeturn for re-passa%e Post Jffice !ill by President A. @en,ataramanan

in 4553

Aeturn for repassa%e the Jffice of Profit !ill by President (bdul Halam

in *33E

Art. =

(rticles E and 2 of the Constitution deal with the (ddress by the President.(rticle E confers a ri%ht on the President to address either $ouse ofParliament or both $ouses assembled to%ether# and for that purpose re:uirethe attendance of members. $owever# since the commencement of theConstitution# the President has not so far addressed a $ouse or $ousesto%ether under this provision.


16/27

(rticle 2 deals with a pecial (ddress by the President and provides that thePresident shall address both $ouses of Parliament assembled to%ether at thecommencement of the first session after each %eneral election to the o,abha and at the commencement of the first session of each year and informParliament of the causes of its summons.

(s article 2 ma,es it clear# the (ddress is to be to both $ouses of Parliamentassembled to%ether. In other words# it means that if at the time ofcommencement of the first session of the year# the o, abha has beendissolved and the Aa"ya abha has to meet# then the Aa"ya abha can haveits session without the President=s (ddress. 1urin% the dissolution of the o,abha in 4522 and 4554# the Aa"ya abha had its sessions 7ebruary 4522and Fune 4554# respectively without the President=s (ddress.

&he President=s (ddress to both $ouses of Parliament assembled to%ether isa constitutional obli%ation for the President. It is a statement of the%overnment policy of which# as the Constitutional $ead# he is the symbol. &hePresident represents not only the executive authority but is a symbol of theConstitution.

&he discussion on the (ddress is initiated by a Motion of &han,s moved by amember and seconded by another member and is put to vote. It is adoptedwith or without amendments.

(ppointment of Protem pea,er and Protem Chairman

&he President appoints a protem Chairman of the Aa"ya abha /(rt. 54.46 andprotem pea,er of the o, abha / (rt.5).46 in certain circumstances. ProtemChairman of Aa"ya abha is appointed when the offices of the Chairman andthe 1eputy Chairman are vacant. Protem pea,er is appointed in the new o,abha to swear in the newly elected members.

Administer 2ath

very Member of Parliament# before ta,in% his seat in the $ouse# is re:uiredto ma,e and subscribe the oath or affirmation before the President or before

the person appointed by him in that behalf. /(rt. 556

0omination

medium2 34 &he President nominates to the Aa"ya abha twelve persons havin% special,nowled%e and practical experience in respect of such matters as literature# science# artand social service. /(rt.36 &he President also nominates to the o, abha not more


17/27

than two members to represent the (n%lo-Indian community# if he is of the opinion thatthe community is not ade:uately represented in the o, abha /(rt. ++46

Dis>ualification of embers of Parliament

Grounds of dis:ualification of a Member of Parliament are %iven in (rticle 43*.President is the authority to dis:ualify a member of parliament. (rt. 43+ saysthat the President decides on dis:ualification in consultation with the lectionCommission. uch dis:ualification# accordin% to (rt.43*# can arise from thefollowin%

if a member holds any office of profit under the Government of India or -

the Government of any tate# other than an office declared byParliament by law not to dis:ualify its holder

if he is of unsound mind and stands so declared by a competent court

if he is an undischar%ed insolvent

if he is not a citi'en of India# or has voluntarily ac:uired the citi'enship

of a forei%n tate# or is under any ac,nowled%ment of alle%iance oradhe-rence to a forei%n tate

if he is so dis:ualified by or under any law made by Parliament.

!roadly spea,in%# except for cases of defection and expulsion# President isthe authority to dis:ualify a member of Parliament in consultation with thelection Commission /(rt. 43+6Prior Aecommendation of the President for ome !ills

"he President$s prior recommendation for introduction of a ,ill isre>uired for the follo'in&

introduction of a !ill relatin% to formation of new tates or alteration of

areas# boundaries or names of existin% tates /(rt.+6

Money !ill /(rt. 4436

7inancial. !ill /(6 /(rt. 442.46


18/27

7inancial !ill /!6 after it is introduced but before it is ta,en up for

consideration /*nd Aeadin%6 /(rt. 442.+6

introduction of a !ill or movin% of an amendment affectin% taxation in

which tates are interested or chan%in% the definition of a%riculturalincome.

tate !ills restrictin% freedom of trade /(rt.+36

7t is clear that the abo/e pro/isions centre around either of the t'ofeatures as &i/en belo':9

7ederalism and the ri%hts of the states

Money matters

&he role %iven to the President is to preserve the federal character and ensurethat fiscal system and responsibility is protected.

oin session of Parliament

In the case of disa%reement between the two $ouses on a !ill /other than aMoney !ill and constitution (mendment !ill6# the President summons a "ointsittin% of both $ouses. /(rt. 43.+6 &he President has# after consultation with

the Chairman of the Aa"a abha and the pea,er of the o, abha maderules for the procedure with respect to "oint sittin%s of the two $ouses /(rt.44.+6.

*ules

&he President has# after consultation with the Chairman of the Aa"ya abhaand the spea,er of the o, abha made rules re%ulatin% the recruitment andthe conditions of service of persons appointed to the secretarial staff of therespective $ouses. &he later rules are# however# sub"ect to any law made by

Parliament /(rt. 56.ayin% of tatements# Aeports etc.

&he President causes to be laid before both $ouses of Parliament in respectof every financial year


19/27

statement of the estimated receipts and expenditure of the Government

of India /i.e.# !ud%et6 for that year# /(rt. 44*.6

statements showin% supplementary or additional

grants ,and before the )ok (abha& excess grants- , #rt. 55-.

*eports of constitutional functionaries or bodies such as 9

Comptroller and (uditor-General of India# /(rt. 4)46

7inance Commission# /(rt.*46

Union Public ervice Commission# /(rt.+*+6

Commissions for the cheduled Castes and cheduled &ribes# /(rt.++6

!ac,ward Classes Commission# /(rt.+36

Commissioner for in%uistic Minorities# /(rt. +)3!6

Ques. 5 : #Promul&ation of 2rdinances in 7ndia has been mo/e of acouncil of inisters prero&ati/e$ and does not fit 'ell for theparliamentar democrac. Criticall examine?

(ns. Jrdinance is an executive law.

If at any time# except when both $ouses of Parliament are in session# thePresident is satisfied that circumstances exist which render it necessary forhim to ta,e immediate action# he may promul%ate Jrdinances as thecircumstances re:uire. i,e most actions# it is also exercised on the advice ofthe Union Council of Ministers. (n Jrdinance so promul%ated by the Presidenthas the same force- and effect as an (ct of Parliament. very Jrdinance hasto be laid before both $ouses of Parliament and it ceases to operate at the

expiration of six wee,s from the reassembly of Parliament. It may bedisapproved before the expiration of that period if both $ouses pass aresolutions to that effect.

&he President may issue an ordinance to


20/27

enforce the provisions of a !ill introduced in# and pendin% before a

$ouse or a Committee or

to enforce the provisions of a !ill already passed by one $ouse but not

yet passed by the other $ouse or

on an entirely new matter or

for a temporary purpose.

Jrdinance can not be promul%ated to amend the Constitution.

Jrdinances promul%ated by the Governor of a tate under the PresidentsAule are also laid on the &able in the Parliament in the same manner as

Jrdinances promul%ated by the President.Aule by the ordinance is a%ainst the-spirit of the parliamentary democracy.&herefore# there are safe%uards built into the Constitution li,e -

promul%ation is permitted only when either $ouse is not in session

it can not amend the Constitution

Parliament needs to be explained the reasons for the Jrdinance

It cannot last for more than E wee,s after parliament reconvenes

Parliament K both the houses independently of each other- can pass

resolution see,in% its discont4nuation before the period of E wee,sexpires after the reassembly of the Parliament

Whenever a !ill see,in% to replace an Jrdinance with or without

modification is introduced in the $ouse# a statement explainin% thecircumstances which had necessitated le%islation by Jrdinance# isre:uired to be placed before the $ouse alon% with the !ill

Fudicial review is also a limitation on recourse to ordinance /Cooper=s

case verdict 45236.

Constitutional experts and others have ob"ected to the fre:uent resort to thepower to issue an Jrdinance by the Government# particularly on dates tooFose to a session of Parliament. Jrdinance ra" refers to the practice of a


21/27

%overnment to avoid ma,in% le%islation and instead rely on ordinances asle%islative debate and vote may unsettle the party in power. upreme Courtob"ected to such repromul%ation of ordinances without any %enuinecompulsions.

Jf late# ordinances have become necessary for one additional reason8coalition %overnment# lac,in% in ma"ority in the Aa"ya abha is not in aposition to have the Parliament pass the !ill. !ut international treaties mayre:uire that the Parliament enact le%islation. In such circumstances#Government promul%ates and re-promul%ates the ordinances to ma,e thenecessary law. It should not be considered misuse of the powers.In the Cooper=s case /45236 and (H Aoy case /45*6# the upreme Courtupheld

the poer of courts to revie the 6ustification for the ordinance.

Ques. : #+eto Po'er in 7ndia is not absolute except some instances$.Discuss?

(ns. ?@eto= /atin for ;I forbid


22/27

commit himself either way for any reason. Generally# poc,et veto isused to buy time in circumstances of political fluidity for example# theparty that may succeed may not accept the !ill.

( Constitution amendment !ill shall be assented to by the President /*th

amendment (ct 45246. &he Money !ill can not be returned to the Parliamenthut assent can be withheld.n 45E# the President of India# Gyani Lail in%h exercised poc,et veto withre%ard to Indian Post Jffice /(mendment6 !ill as in his opinion it was violativeof 7undamental Ai%hts in (rt.45 as the !ill authori'ed for interceptin% the mail.President A. @en,ataramanan in 4554 returned it to Aa"ya abha. In otherwords# the former was a poc,et veto and the latter was a suspensive veto.&he bill survived the dissolutions of the o, abha and was withdrawn about adecade later.

President Halam in *33E returned the Parliament /Prevention of1is:ualification6 (mendment !ill# *33E- popularly ,nown as Jffice of Profit !illto emphasise that the !ill needed improvement. It is also a suspensive veto.President @en,ataramanan withheld assent from the MPs /alary# (llowancesand Pensions6 !ill 4554 as it was not introduced with his priorrecommendation.

&hus# the Presidential veto of the above three ,inds can be exercised in thefollowin% circumstances

If the le%islative competence is breached

If the !ill is ill conceived

If the !ill is hastily passed

If he has su%%estions about how to improve the !ill

If 7undamental Ai%hts and other Preambular values are violated

If procedure is not followed

In sum# there are substantive and procedural %rounds for the President toexercise his veto. Generally veto powers are exercised on the advice of theUnion Council of Ministers.


23/27

Emer&enc Po'ers

If the President is satisfied that %rave emer%ency exists whereby the securityof India or any part of its territory is threatened# whether by war or external

a%%ression or armed rebellion# /(rt. +)*6 or there is a failure of constitutionalmachinery in a tate /(rt.+)E6 or a situation has arisen whereby the financialstability or credit of India or of any part of its territory is threatened# /(rt. +E36he issues a Proclamation

for the purpose. These Proclamations need parliamentary approval.

Ques. : #Careta-er &o/ernment is not a constitutional concept$Discuss?

(ns. ( Government that continues to be in office even after the dissolution ofo, abha# pendin% %eneral elections# is a careta,er %overnment. &hesituation may arise for the followin% reasons

resi%nation on its own or

resi%nation on losin% ma"ority or

term is over

It is re:uested to continue to be in power by the President till the new ministryis sworn in. 7or example# after the Government of ri (tal !ihari @a"payee lostma"ority in the in (pril 4555# it had to resi%n and was as,ed to continue as?care ta,er %overnment= by the President till such time that the elections to the4+th were held and a new %overnment was formed.Careta,er %overnment is not a Constitutional concept but a politicalcompulsion as there can not be a Constitutional vacuum because there is noicon for President=s rule at the centre. &he options for the President are thefollowin%

et the incumbent %overnment exit. !ut it will create a constitutionalvacuum and so is not a valid choice.

(s,in% the ministry to continue even after its ma"ority in the is lost

which violates (rt.2).+ that says that the ministry lasts till it en"oys theconfidence of .


24/27

&he President to ta,e over the responsibility of administration for which

there is no Constitutional sanction as (rt. 2.4 clearly spell out that thePresident can act only on the advice of the Council of Ministers.

&he most appropriate option is to as, the incumbent ministry to continue tota,e care of the Government till elections produce a successor.Careta,er %overnments li,e the Charan in%h Ministry in 4525 lasted )months the Gu"ral ministry lasted months in 4552-5 and the @a"payeeministry lasted lon%er in 4555. (n important :uestion is whether crucialdecisions re%ardin% national security forei%n policy international treatyobli%ations li,e patent laws economic policy li,e 71I# support prices forfarmers transfers of senior officials etc could be ta,en by the care ta,er%overnment. In fact# the Har%il tra%edy exposed the nation to internationalhostility when the careta,er %overnment was in power. &here is# thus# the

need to lay down norms %overnin% the careta,er %overnment. &he Presidentmust evolve conventions in such political circumstances for %overnance of thecountry.Aecurrence of the minority %overnments their inherent instability and therelatively lon% periods for which careta,er %overnments are in power forcesthe cerernonial Presidency= to become a ?wor,in% Presidency=. &heconventions for the relationship between the President and the Council alsohave to be redefined in such a context.

Ques. = : #President has the ri&hts to be consulted to encoura&e and to

'arn$. ,rin& out the si&nificance of the statement in li&ht of e/ol/in&political dnamics in 7ndia?

(ns. India is a parliamentary form of democracy modeled after the !ritishsystem where the Council of Ministers is the effective $ead of theGovernment and the President /the !ritish counterpart bein% the Monarch6 isonly the ceremonial $ead of tate without any real powers.

(rt. 2 clearly states that the President of India shall follow the advice %ivenby the Council of Ministers headed by the Prime Minister thou%h he does havethe power to return the advice for reconsideration once at the end of which it

is mandatory for him to accept it.

&here are however circumstances when the President need not %o by theadvice of the Council of Ministers li,e

when it advises that the o, abha be merely because it has lost its

ma"ority


25/27

exercise of veto powers- return of a !ill for repassa%e /suspensive veto6

Buestions about the nature of Indian Presidency

Buestions were raised as to the true nature of the Presidency immediately

after the Constitution came into force. !abu Aa"endra Prasad# the firstPresident of India expressed his opinion that he would act independently ofthe Council of Ministers in two matters.

Givin% assent to the !ills passed by the Parliament

endin% messa%es to the Parliament.

!abu Aa"endra Prasad raised the issue a%ain while layin% the foundationstone for Indian aw Institute buildin% in 45E3 when he said that it was

necessary to loo, into the Constitution to see which provisions re:uired thePresident to act independently of the Council of Ministers.In 45E2# the issue came up on the eve of Presidential elections when re%ionalparties came to power in many states. Jpposition parties asserted that thePresident of India had independent powers and was not a titular head. &hesame controversy was raised by

President Lail in%h exercised poc,et veto on Post Jffice !ill in 45E

President HA 0arayanan did not accept the advice of the Cabinet to

impose President=s rule in !ihar in 455

President (PF Halam returned the Jffice of Profit !ill to the Parliament

for repassa%e in *33E /suspensive veto6

Apex court /erdicts

In the U.0.A. Aao case /452*6 upreme Court concluded that# even after thedissolution of the o, abha# the careta,er Council of Ministers= advice is

bindin% on the President. It is in line with the apex court "ud%ement in 452 inthe hamsher in%h case that the President of India should act on the adviceof the Council and Presidency is a ceremonial institution.

44th Constitution Amendment Act 1@=


26/27

&he Constitution /th (mendment6 (ct 452 made the followin% chan%es inthe powers of the President so as to invest the institution with %reaterstren%th.

(rt. 2 has been amended to ma,e it possible for the President to return

the advice of the Council of Ministers once for reconsideration.

(rt. +)* is amended to the effect that the written advice of the Union

Cabinet /the word Cabinet is found only in (rt.+)* of the Constitution6 isnecessary for the President to proclaim the national mer%ency. It ismeant to ensure that the Prime Minister without the approval of theCabinet does not recommend. (lso# the written advice renders it open to

"udicial review.

!oth the amendments stren%then the President of India and ma,e%overnance more accountable.

Constitutional *ole of the President

President of India# the $ead of the tate# is a formal position. Aeal power restwith the Prime Minister headin% the Council of Ministers K called $ead of theGovernment. (rticle 2 of the Indian Constitution says that the President shallact on the aid and advice of the Council of Ministers. &he role of the $ead oftate is to ?rei%n and not rule=- similar to the !ritish Crown.

!ritish Constitutional expert Walter !a%ehot said that a constitutional monarchhas the ri%ht to he consulted# to encoura%e# and to warn


27/27

(s,in% the Council of Ministers to re-consider the advice /(rt.2. I6

While exercisin% veto power# %enerally suspensive or poc,et but rarely

absolute veto also

1irect the Council of Ministers to prove its ma"ority if there is any

indication that they may have lost it. It is particularly true in the coalitionera.

1is:ualifyin% members of the Parliament in consultation with the C

/(rt. 43+6

In the first five cases mentioned above# it is a case of the president exercisin%powers in his ?discretion=. &he last case leaves him with no discretion as the

advice rendered by the C is final and# bindin%. K It may be said that thePresident of India is a ceremonial institution but assumes certain real powersunder circumstances as mentioned above- hun% parliament# dissolution of theo, abha and veto powers. In the era of coalition Governments# thePresident becomes a ?wor,in% President= as it throws up situations without aprecedent and the President needs to set standards.

5j. Polity - President

Documents