Qualification & Election

Constitutional position
Powers & Functions
Introduction
 Art. 53 of the Constitution states that there shall be a
President of India.
 The President is the Head of the State. Under Art.53, the
Executive power of the Union is vested in the President
which he exercises either directly or through subordinate
officers in accordance with the provisions of the
Constitution.
 In Indian Parliamentary practice, the President is the
nominal executive or the Constitutional Head. The Council
of Ministers headed by the Prime Minister is the real
executive.
 The executive power is vested in the President which he
exercises with the aid and advice of the council of ministers.
 The executive functions comprises of :
i) determination of policy
ii)carrying into execution
• this includes initiation of legislation,
maintenance of order, promotion of social & economic
welfare, direction of foreign policy- in short, the
carrying on of the general administration of the state.
Election of President & qualifications
 Qualification for election as President Art 58:
 a person to be eligible for the president should be-
 at least 35 years of age,
 a citizen of India and
 should be qualified to be a member of the Lok Sabha. A
person is also not qualified to stand for election as
President if he holds office of profit under the govt of India
or govt of any State or under any authority under the
control of any governments.
 As per Art 59 the conditions of the President’s office are
that they cannot be members of any legislature and if they
are such members at the time of their election or
appointment they are deemed to have vacated their seats in
such legislature when they enter upon their office.
Election of the President Art 54
 The president of India is not directly elected by the
people.
 Art 54 provides that the President shall be elected by an
electoral college consisting of the:
 a) elected members of both houses of Parliament
 b) elected members of the legislative assemblies of the
state.
 The nominated members of the Houses at the Centre
and the states do not have voting rights in the election
of President.
Manner of Election of the President Art 55
 The election of President shall be held in accordance
with the system of proportional representation by
means of the single transferable vote.
 The system adopted for voting is secret ballot.
 The constitution provides that as far as practicable
there shall be uniformity in the scale of representation
among the states inter-se as well as parity between the
states as a whole and the Union at the election of the
President.

 For the purpose of securing such uniformity among the
states, the parity between the Union and states, the
following formula is adopted:
 every elected member of the legislative assembly of a state
shall have as many votes as there are multiples of 1000 in
the quotient obtained by dividing the population of the
state by the total number of the elected members of the
Assembly. If by this division, the remainder is 500 or more,
it will be counted as if vote of each member is increased by
one. Thus, the number of votes which a member of
legislative assembly is entitled to cast in the Presidential
election is based on the ratio of population of the state.
 The number of votes which elected members of
Parliament is entitled to cast shall be obtained by dividing
the total number of votes of the legislative assemblies of
all the states obtained under the above formula, by total
number of the elected members of both Houses of
Parliament. If by this division the remainder exceeds one-
half it will be counted as one. This formula secures parity
of votes between the members of Parliament, and of the
legislative assemblies of the state.
Powers & Functions of the President
 Powers enjoyed by the President can be classified into
Executive powers, Legislative powers, Financial
Powers, Judicial Powers, Military powers, Emergency
Powers and Diplomatic powers.
Executive Powers of President
 Executive Powers: All executive actions of the Central Govt are
expressed to be taken in the name of the President. (Art 77)
 The President appoints the governors of the states ( Art 155), the judges
of the Supreme Court and High Court of the States ( Art 124(2), Art. 217).
The Prime Minister of India is appointed by the President. The President
also appoints other ministers in consultation with Prime Minister.( Art.
75)
 The President appoints the Attorney General of India Art 76(1), the
Comptroller and Auditor General of India ( Art 148), the Chairman of
the Finance Commission ( Art 280), the Chief Election Commissioner &
other Election Commissioners etc. ( Art 324(2)).
 The President also appoints the Chairperson, Vice-chairperson and
other members of the National Commission for Scheduled Castes &
Scheduled Tribes. ( Art 338)
 The President is responsible for the administration of the Union
Territories. The President appoints the Chief Commissioners &
Lieutenant Governors of the Centrally administered areas.
 The Chairman & Members of the UPSC are also appointed by the
President.( Art 316).
Legislative powers
 The President also enjoys legislative powers. He is an integral part of
Indian Parliament. Parliament consists of the President & the two
houses- the Lok Sabha or the Lower House & the Rajya Sabha or Upper
House.
 The President has the power to summon & prorogue both Houses of
Parliament. He can dissolve the House of the People before the expiry of
its term. (Art 85(2) )
 The President convenes joint sessions of both Houses of Parliament &
addresses or sends messages to either or both of them.( Arts. 86 & 87)
 A Bill does not become an Act without the assent of the President. A bill
passed by both Houses of the Parliament is sent to the President for his
assent. The President may give his assent to the Bill or withhold his
assent to the Bill except a money Bill. The President may also return a Bill
to the Parliament for its reconsideration.
 Art 117 :money bills can be introduced in the Lok Sabha only on the
recommendation of the President.
 Under Art. 240 the President can make regulations for the peace,
progress & good government of the Union territories.
Legislative powers: Ordinance making power of
President Art 123
 Art. 123: gives power to the President to promulgate Ordinances when
“both Houses of the Parliament are not in session and the President is
satisfied that circumstances exist which render it necessary for him to
take immediate action.
 the power conferred upon the President the power to promulgate
Ordinances will enable the executive to deal with a particular situation
because it cannot resort to the ordinary process of law because the
legislature is not in session.
 Ordinance has the same force as the law made by Parliament. The
Ordinance has to be placed before both Houses of Parliament when it
reassembles. Art 123 (2) (a)
 The Ordinance lapses or ceases to operate at the expiration of six weeks
from the reassembly of the Parliament or before the expiration of that
period, if the Parliament disapproves of it. If it is then approved by both
the Houses of Parliament, it will cease to operate after six weeks of the
date of meeting of Parliament. Art 123 (2) (a).
 Ordinance can be withdrawn at any time by the President . Art 123 (2) (b).
 An ordinance promulgated by the President has the same
force & effect as an Act of Parliament subject to following
conditions:
 1. An Ordinance may be promulgated at a time when both
Houses of Parliament are not in session. If one House is
sitting, but the other is not , an ordinance may be issued.
 2. the President must be satisfied that circumstances exist
which makes it necessary for issuing an Ordinance.
 3. every Ordinance has to be laid before both Houses of
Parliament. It ceases to operate at the expiration of six weeks
from the reassembly of the Parliament; or if before the
expiration of that period resolutions disapproving the
Ordinance are passed by both Houses.
 4. an ordinance made by the President shall be subject to the
same limitations as a law made by Parliament.
 The question whether an Ordinance was subject to
judicial review was considered by the Court in R.C.
Cooper v. UOI 1970 SC, wherein the court held that
the Ordinance making power was subject to judicial
review if the facts & circumstances of the case do not
establish a genuine satisfaction made by the President
for the promulgation of Ordinance.
 In A.K. Roy v. UOI 1982 SC, the SC held that judicial
review of the President’s satisfaction regarding the
necessity to issue an Ordinance is not totally excluded.
The satisfaction of the President is not a Purely
political question & kept beyond judicial review.
 In D.C. Wadhwa v. State of Bihar 1987 SC, the SC held
that the exceptional power of law making through
Ordinance cannot be used as a substitute for the
legislative power of the Parliament & therefore the
courts will invalidate the Ordinances which are re-
promulgated time & again without being brought
before the Parliament as required in cl.(2) of Art.123.
 In T.Venkata Reddy v. State of A.P 1985 SC, the SC
held that the propriety, expediency & necessity of a
legislative Act are for the determination of the
legislative authority & are not for determination by the
courts.
Financial Powers
 The annual financial statement is placed by the President
before both Houses of the Parliament (Art 112)
 The annual financial statement shows the estimates of
revenues & expenditures of the Central Govt for the
following financial year.
 The proposal for taxation and expenditure cannot be made
without the approval of the President.
Military powers
 The President of India is the Supreme Commander-in-
Chief of the Army, Navy and the Air Force of the Union.
He has the power to declare war.
 Art 53(2) vests the supreme command of the defence forces
in the President.
 There are two limitations to this power:
 1. military power of the President is subject to the general
executive power of the President.
 2. exercise of supreme command can be regulated by law.
 Thus, the war power vested in Parliament would enable the
Parliament to give directions to the President with regard
to the exercise of power of command of defence forces &
the power to carry on military campaign.
Emergency Powers
 The President of India exercises extraordinary powers in times
of emergency.
 Proclamation of National Emergency by President of India
under Art 352: The President of India may issue a
Proclamation of National Emergency when the security of
India or any part thereof is threatened by war, armed rebellion
or external aggression.
 Failure of Constitutional machinery in state under Art.356: In
Case of failure of Constitutional machinery in a State, the
President of India is authorised to make a Proclamation to
that effect. During such an emergency, the President may
assume to himself the executive powers of the State.
 Proclamation of Financial Emergency by President Art
360: the President may also issue a Proclamation of
financial emergency if he is satisfied that the financial
stability of India is threatened. All money bills passed
by the state legislatures are to be reserved for the
consideration of the President.
Diplomatic powers
 The President also enjoys the diplomatic powers. He
appoints the diplomatic representatives of India to the
foreign states.
 The President receives ambassadors, High
Commissioners and diplomatic envoys from foreign
nations. All treaties and international agreements are
concluded in the name of the President.
 The President represents India in international affairs.
He has the power to conclude treaties with foreign
states.
Judicial Power: Pardoning power of the President Art.72
 Under Art 72, President is vested with the power to grant pardon,
reprieves, respites or remissions of punishment or to suspend,
remit or commute sentences of any person convicted of any
offence
 In all cases where the punishment or sentence is by a Court
Martial
 In all cases where the punishment or sentence is for an offence
against any law relating to a matter to which the executive power
of the Union extends
 In all cases where the sentence is a sentence of death.
 Pardon cannot be demanded as a matter of right. It is an act of
grace.
 A pardon not only removes the punishment but also places the
offender in the same position as if he had never committed the
offence.
 The effect of the pardon is to clear the person from all infamy and
from all consequences of the offences for which it is granted and
from all statutory or other disqualifications upon conviction.
 Along with the power of pardon, the President can also
grant:
 reprieves i.e. temporary suspension of the punishment
fixed by law.
 respites i.e. postponement to the future the execution of a
sentence.
 Commutation i.e, changing a punishment to one of a
different kind than that originally proposed
 Remission, i.e. reduce the amount of punishment without
changing the character of punishment.
 The President can grant pardon and reprieves only in the
foll cases:
 Offences against Union laws
 In all cases where the punishment or sentence is by a court
martial;
 In all cases of sentence of death.
 In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of
A.P. & Ors 2006 SC , it was held by the Supreme Court that it is a
well-set principle that a limited judicial review of exercise of
clemency powers is available to the Supreme Court and High
Courts. Granting of clemency by the President or Governor can
be challenged on the following grounds:
 The order has been passed without application of mind.
 The order is mala fide.
 The order has been passed on extraneous or wholly irrelevant
considerations.
 Relevant material has been kept out of consideration.
 The order suffers from arbitrariness.
 In Maru Ram v. Union of India 1981 SC, the Constitutional
Bench of Supreme Court held that the power under Article 72 is
to be exercised on the advice of the Central Government and not
by the President on his own, and that the advice of the
Government binds the head of the Republic.
 In Kehar Singh v Union of India 1989 SC, the SC held that the
grant of pardon by the President is an act of grace and, therefore,
cannot be claimed as a matter of right. The power exercisable by
the President being exclusively of administrative nature, is not
justiciable.
 The following are the propositions which emerge from the
various decisions of the courts:
 The exercise of the power by the President under Art 72 is
primarily a matter of his discretion & the courts would not
interfere with his actual decision on the merits
 The courts exercise a very limited power of judicial review to
ensure that the President considers all relevant materials before
coming to his decision.
 The President can, in the exercise of his power examine the
evidence afresh. In doing so he is not sitting as a court of appeal.
His power is independent of the judiciary. He can, therefore
afford relief not only from a sentence which he regards as unduly
harsh but also from an evident mistake.
 The President is not bound to hear a petitioner for mercy before
he rejects the petition
Constitutional Position of the President
 The President enjoys the same position as King under the
English Constitution. He is the nominal or Constitutional Head.
 The President of India has been given wide and far reaching
powers which he enjoys both during normal & emergency times.
 President’ position is one of great authority & dignity but at the
same time strictly constitutional. The President is bound in
every case to act on the aid & advice tendered by the Prime
Minister & Council of ministers.
 In Ram Jawaya Kapur v. State of Punjab 1955 SC, it was held that
though the executive power is vested in the President, the
President is only a formal or Consitutional Head.
 The real power is vested in the council of ministers on whose aid
& advice the President exercises his functions.
 The executive is responsible for the formulation of govtal policy
& transmission into law.
 As per Art 74(1), 75(2), 75(3)- President cannot exercise
executive powers without the aid & advise of the Council of
Ministers even after the legislature is dissolved.
 Wherever Constitution requires satisfaction of the
President for exercise of any powers/functions- the
satisfaction required is not the personal satisfaction of the
President but the satisfaction of the council of ministers.
 However, there are few exceptions to this
 1. choice of PM is restricted by the consideration that PM
should command majority in the House.
 2. dismissal of govt which lost majority in the House, but
refuses to quit office.
 3. dissolution of the House where an appeal to the country
has become necessary.
 The Constitutional position of President in the exercise of
his discretion is based on British practice.
Impeachment of President & Procedure Art 61
 Article 61 of the Constitution lays down the procedure for the
impeachment of the President.
 The president can be removed from his office by a process of
impeachment for the ‘violation of the Constitution’.
 The impeachment charge against him may be initiated by
either House of Parliament.
 The charge must come in the form of a proposal contained in
a resolution signed by not less than one-fourth of the total
number of the members of the House, and moved after
giving at least 14 days’ advance notice. Art 61(2) (a)
 Such a resolution must be passed by a majority of not less
than two-thirds of the total membership of the House. Art
61(2) (b).
 The charge is then investigated by the other House.
Art 61(3)
 The president has the right to appear, and to be
represented at such investigation.
 If the other House after investigation passes a
resolution by a majority of not less than two-thirds of
the total membership of the House declaring that the
charge is proved, such resolution shall have the effect
of removing the President from his office from the date
on which the resolution is so passed. Art 61(4).