- A52 - 78
- Part V deals with union executive
- President
- Vice Prez
- PM
- COM
- Attorney General of India
- Prez
- Head of Indian state
- First citizen of India
- Symbol of unity, integrity, solidarity of the nation
Table of Contents hide
Election
- Indirectly through electoral college of
- Elected members of
- Parliament = LS & RS
- State legislative assemblies
- UTs legislative assemblies of Delhi & Puducherry
- Non-participants
- Nominated members of
- parliament
- State Assembly
- UT's legislative assembly
- Members - elected & nominated
- State legislative council
- Members of dissolved assemblies
- Nominated members of
- Elected members of
- Uniformity among states & parity b/w centre and state
- Uniformity
- Value of vote of MLA = Total population of state / Total elected MLA x 1000
- Parity
- Value of vote of MP = Total value of all MLA / Total elected MPs
- Uniformity
- System of proportional representation with simple transferable vote (secret ballot)
- Must secure fixed quota of votes
- Electoral Quota = [Total number of valid votes polled/(1+1)] + 1
- Voters indicate their preferences by marking 1, 2, 3, 4
- Phase 1
- 1st preference vote > Electoral quota then won
- Else phase 2
- Phase 2
- Least preferred candidates removed
- and his 2nd preference votes are transferred as 1st preference votes of other candidates
- This process continues until votes cross electoral quota
- Must secure fixed quota of votes
- SC decision on disputes in election of prez is final
- Reason for indirect election
- Nominal head not rival power house for PM + COM
- Direct elections = costly, time consuming
- Technical Issues
- proportional representation is misnomer bcos it is used for two or more seats not single seat like prez, so use preferential vote system or alternate vote system
- No single transferable vote since every voter has plural votes
Qualification
- Citizen of India ( unlike USA every citizen not only naturalised citizen)
- > 35 years old
- Eligible to be elected as MP of LS
- No office of profit except
- Prez
- Vice Prez
- Governor
- Any minister of union or state
- Nomination of candidate needs
- >50 electors as proposers
- >50 electors as seconders
- Rs.15k security deposit with RBI (forfeited if didn't secure 1/6th votes)
- To discourage non-serious candidates
Oaths or Affirmation
- Administered to CJI
- In his absence = senior-most judge of SC
- Oath
- faithfully execute office
- preserve, protect and defend the constitution and the law
- devote to service and well-being of people
Conditions of president's office
- Not a member of parliament or state legislature
- If such members elected = deemed to have vacated
- No office of profit
- Entitled to use Official residence(Rashtrapathi Bhavan) without payment
- Perks determined by parliament
- Perks can't be diminished during his term
- Personal immunity from legal liability for his official acts
- Criminal immunity during the office
- Civil proceeding immunity subject to 2 months notice
Term
- 5 years
- can resign to Vice prez
- Can be Impeached
- Eligible for re-election any no of times(unlike US prez = twice)
Impeachment
- only for violation of the constitution
- but violation not defined in constitution
- Impeachment initiated in any house of parliament
- Charges signed by 1/4th members
- 14 days notice to prez
- Special Majority - 2/3rd of total membership of both houses
- Quasi-judicial process
- Nominated members also can participate though not in election
- elected member of UTs of Delhi & Pondicherry don't participate though they participate in election
- No prez impeached so far
Vacancy in prez's office
- Circumstances
- tenure expires
- resigns
- impeached
- death
- disqualified as election declared void by SC
- Elections held before expiration date, if not possible outgoing prez continues after 5 years until election - prevents interregnum
- Vacant due to death, resignation, impeachement..etc
- within 6 months election
- Vice-prez acts as prez until election
- If Vice-prez not available then CJI
- If CJI not available senior-most judge of SC
Powers and function
- Executive power
- Legislative power
- Financial power
- Judicial power
- Diplomatic power
- Military power
- Emergency power
Executive Power
- All actions of govt in his name
- Appoints
- PM + COM and holds office during his pleasure
- Attorney general and holds office during his pleasure
- CAG
- CEC & other Election comissioners
- Chair + members of UPSC
- Governors
- Chair + members of FC
- Can appoint commission to investigate into conditions of SCs, STs & OBC
- Can appoint inter-state council
- Administers UTs through admins appointed by him
- Can declare any area scheduled area and can administer scheduled areas and tribal areas
Legislative Power
- Summons or prorogue the parliament the parliament
- Summons joint sittings (speaker of LS presides)
- Dissolves LS
- Addresses Parliament in 1st session of each year or 1st session after general election
- Can appoint any member of LS to preside if speaker and dy.speaker is absent, similarly in RS
- Nominates 12 member to RS - literature, science, art and social science
- Disqualifies MP after consulting EC
- Prior recommendations to - expenditure on consolidated fund of India, alteration of boundaries of states or creation
- Bills sent to prez after passing in parliament
- give assent
- withhold assent
- return (except money bill)
- if passed again with or without amendments - give assent
- Bill sent to prez after passing in state legislature
- give assent
- withhold assent
- return (except money bill)
- if passed again with or without amendments - no obligation to give assent
- Promulgate ordinance - Approved by parliament within 6 weeks after reassembly
- Lays report of
- CAG
- UPSC
- FC
- others to parliament
- Make regulations for A&N, Lakshadweep, D&N, D&D
- In case of Puducherry only if assembly suspended or dissolved
Financial Powers
- Money bills need prez's prior recommendation
- Lays before parliament - Budget or Annual financial statements
- No demand for grants without his recommendation
- Spends from contingency fund of India to meet unforeseen expenditure
- Constitutes FC every 5 year for C-S revenue sharing
Judicial Power
- Appoints
- CJI
- SC Judges
- HC Judges
- Can seek advice from SC on law but advice not binding
- Can grant - all cases of court martial, death sentence, or punishment for against Union of India
- Pardon
- Reprieve
- Respite
- Remission
- Suspend
- Remit or Commute
Diplomatic Power
- Represents India in International forums
- All treaties and agreements concluded on his behalf but subject to parliament's approval
Military Power
- Supreme commander of defence forces
- Declare war or conclude peace subject to parliament's approval
Emergency Power
- National Emergency - A352
- Presidents Rule - A356 & 365
- Financial Emergency - A360
Veto Powers
- A111 - Bill presented to prez for his assent
- Assent
- Withhold - "Absolute Veto"
- Return Bill (Except Money Bill) - "Suspensive Veto"
- Objective of veto
- To prevent hasty ill-considered legislation
- To prevent unconstitutional legislation
- But no veto on constitutional amendment bill (24th CAA - 1971)
- Types of Veto
- Absolute Veto - withhold assent
- Qualified Veto - overridden by higher majority (Not available for Indian prez but US prez)
- Suspensive Veto - Overridden by ordinary majority
- Pocket Veto - takes no action - neither assent or withhold or return
Absolute Veto
- Withholds assent - bill doesn't become act
- Usual scenarios
- Private member Bill
- After old cabinet resigns and new cabinet advises prez
- E.g
- 1954 - Dr.Rajendra Prasad withheld assent to PEPSU Appropriation Bill
- 1991 - R Venkataraman withheld assent to Salary, Allowances and Pension of Members of Parliament (Amendment Bill)
Suspensive Veto
- Returns a bill (except money bill)
- Returned bill passed again with or without amendments with simple majority, prez need to assent
- Money Bill either given assent or withheld
Pocket Veto
- No time limit for assent or withhold or return
- USA - 10 days time to return
- Pocket of Indian prez bigger than US prez
- E.g
- 1986 - Zail Singh pocket vetoed Indian Post Office (Amendment) Bill
Presidential Veto over State Legislature
- State Bills become act after assent of
- Governor
- Or Prez if governor reserves it
- A200 - Governor has 4 alternative for state Bills
- Assent
- Withhold
- Return (not money bill)
- Reserve for prez's consideration
- A201 - Prez has 3 alternatives for bills reserved by governor
- Assent
- Withhold
- Return (not money bill)
Ordinance making power of the president
- A123 - prez can promulgate ordinance during the recess of Parliament (not found in USA/UK)
- Only when both or either of the house not in session
- Not a parallel power of legislation
- Only if prez satisfied that circumstances exist for ordinance
- Cooper Case - 1970 - SC can question in case of malafide intention
- 1975 - 38th CAA prez satisfaction final & court can't question
- 1978 - 44th CAA said SC can question
- After parliament reassembles
- Approved within 6 weeks - Ordinance becomes act
- Else ceases after 6 weeks
- Ceases even before 6 weeks if both houses pass resolution disapproving it
- If summoned to reassemble on different dates - 6 weeks from later of those dates
- So max life of ordinance - 6 months(max gap b/w two sessions) & 6 weeks
- Ordinance making power not discretionary but on advice of COM + PM
- Can be retrospective
- Can not be issued to amend constitution
- Only when both or either of the house not in session
- Ordinance power misused - Bihar govt promulgated 256 ordinance and many re-promulgated for upto 14 years - D C Wadhwa Case 1987
Pardoning power of President
- A72 - pardoning power to prez on following convictions
- Punishment for offence against union law
- Punishment by court martial or military court
- Death sentence
- Objective
- To correct any judicial errors
- To afford relief to unduly harsh punishment
- Powers
- Pardon - Completely absolves from all sentences, punishment and disqualification
- Commutation - Substitute with lighter punishment
- Remission - Reduction in period of sentence without change in character
- Respite - Lesser sentence due to special fact like physical disability or pregnancy
- Reprieve - Temporarily stay execution of sentence (esp. death) to provide time, so convict can seek pardon or commutation
- Powers of Governor
- Has all the above powers
- But can't pardon death sentence but can commute, remission, respite or reprieve death sentence
- Can't pardon sentences by court-martial or military court
Constitutional position of president
- Prez is nominal executive = needs aid & advice of COM + PM(A74)
- Real executive = PM + COM
- 42nd CAA 1976 - Prez bound by advice of COM + PM
- 44th CAA 1978 - Prez can return a matter for reconsideration but reconsidered advice is binding
- Prez has no constitutional discretion but has situational discretion
- Appointment of PM
- when no party has clear majority
- If PM dies and no obvious successor
- Dismissal of COM when it can't prove confidence of LS
- Dissolution of LS if COM lost its majority
- Appointment of PM