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[Burning Issue] President of India: Election, Powers and Surrounding Debates

Context

  • Recently, India got Droupadi Murmu elected as her 15th President.
  • However, several opposition leaders negatively commented on the President’s post in India as a ‘rubber stamp’ and ‘ceremonial head’ only with no powers. This reignited the debate around the President’s powers and position in India.
  • This also makes the post and the process of election of President of India important for the upcoming UPSC mains 2022 examination and Preliminary examination in 2023.

About the President Post in India

Former PM Jawaharlal Nehru on the post of President of India- “President is the “Head that neither reign nor governs” but holds a position of “authority or dignity” 

Why do we need a President in India?

  • The Constitution of India has provided for a Parliamentary form of government that has two executive heads- nominal and real executive.
  • Consequently, President has been made the Nominal head of the executive; the council of ministers headed by the prime minister is the real executive. The President has to exercise his powers and functions with the aid and advice of the council of ministers.
  • The logic behind having a nominal head is to provide continuity to the government. The Parliamentary system of government is inherently unstable and the government may go if it loses the vote of confidence. So, President acts as the head of the state during this period.
  • Another reason to have a President is to have a “neutral head” representing the views of all the parties. His institution is a symbol of a “nonpartisan” institution. (this is the reason we see opposition MP’s visiting President against ruling government actions and asking him to take appropriate action)

Dr. BR Ambedkar summed up the post of President in the following ways:

 “The title of the functionary(President) reminds of the President of United States. But beyond the identity of titles, there is nothing in common between the two. Under Indian Constitution, the President occupies the same position as the king under the English Constitution.

Election Procedure for President of India

Electing the President

  • The provisions of the election of the President are laid down in Article 54 of the Constitution of India.
  • The Presidential and Vice-Presidential Election Act 1952 led to the establishment of this Constitutional provision.

Qualifications to become the President of India

The qualification of be the President of India are given below:

  • He/ She must be an Indian citizen
  • A person must have completed the age of 35.
  • A person must be qualified for election as a member of the House of the People.
  • Must not hold a government (central or state) office of profit
  • A person is eligible for election as President if he/she is holding the office of President or Vice-President.

Actual course of election

  • The President of India is elected indirectly by an Electoral College following the system of proportional representation utilizing a single transferable vote system and secret ballots.
  • MPs and MLAs vote based on parity and uniformity values.

Electoral College composition-

 Legislative Assemblies of the States:

  • According to the provision of Article 333, every state’s Legislative Assembly must consist of not less than 60 members but not more than 500 members.

Council of States:

  • 12 members are nominated by the President of India based on skills or knowledge in literature, arts, science, and social service to act as the members of the Council of States.
  • In total, 238 represent act as representatives from both the States and Union Territories.

House of the People:

  • The composition of the House of People consists of 530 members (no exceeding) from the state territorial constituencies.
  • They are elected through direct election.
  • The President further elects 20 more members (no exceeding) from the Union Territories.
  • Uniformity in the scale of representation of states
  • To maintain the proportionality between the values of the votes, the following formula is used:

Value of vote of an MLA= total no. of the population of the particular state/ number of elected MLAs of that state divided by 1000.

Single vote system

  • During the Presidential election, one voter can cast only one vote.
  • While the MLAs vote may vary state to state, the MPs vote always remain constant.
  • MPs and MLAs vote balance
  • The number of the total value of the MPs votes must equal the total value of the MLAs to maintain the State and the Union balance.

Quotas:

  • The candidate reaching the winning quota or exceeding it is the winner.
  • The formula sued is ‘Winning quota total number of poll/ no.of seats + 1’.

Voters’ preference:

  • During the Presidential election, the voter casts his vote in favor of his first preferred candidate.
  • However, in case the first preference candidate does not touch the winning quota, the vote automatically goes to the second preference.
  • The first preferred candidate with the lowest vote is eliminated and the votes in his/her favor are transferred to the remaining candidates.

Why need Proportional representation?

  • The President of India is elected through proportional representation using the means of the single transferable vote (Article 55(3)).
  • It allows the independent candidates and minority parties to have the chance of representation.
  • It allows the practice of coalition with many voters under one government.
  • This system ensures that candidates who are elected don’t represent the majority of the electorate’s opinion.

Why is President indirectly elected?

  • If Presidents were to be elected directly, it would become very complicated.
  • It would, in fact, be a disaster because the public doesn’t have absolute clarity of how the President-ship runs or if the candidate fits the profile of a President.
  • Another reason why the direct election system isn’t favourable is that the candidate running for the President’s profile will have to campaign around the country with the aid of a political party.
  • And, this will result in a massive political instability.
  • Moreover, it would be difficult and impossible for the government to hand out election machinery (given the vast population of India).
  • This will cost the government financially, and may end up affecting the economy as well.
  • The indirect election system is a respectable system for the First Man of India (rightly deserving).
  • The system/method of indirect electing of the President also allows the states to maintain neutrality and minimize hostility.

Impeachment of President of India

  • Article 61 provides for the Impeachment of President on the grounds of violation of the Constitution. But the Constitution does not define the phrase ‘violation of the Constitution’. It is a quasi-judicial process.
  • The President may be removed before the expiry of the term through impeachment for violating the Constitution of India by the Parliament of India.
  • The process may start in either of the two houses of the parliament.
  • The house initiates the process by levelling the charges against the President.
  • The charges are contained in a notice that has to be signed by at least one-quarter of the total members of that house.
  • The notice is sent up to the President and 14 days later, it is taken up for consideration.

Procedure

  • A resolution to impeach the President has to be passed by a two-thirds majority of the total number of members of the originating house.
  • It is then sent to the other house.
  • The other house investigates the charges that have been made. During this process, the President has the right to defend oneself through an authorised counsel.
  • If the second house also approves the charges made by special majority again, the President stands impeached and is deemed to have vacated their office from the date when such a resolution stands passed.
  • No President has faced impeachment proceedings so the above provisions have never been used.

Powers and functions of the President of India

The powers and functions of President has been divided into several categories like:

Executive Powers

  • Every executive action is taken in the name of President..
  • He makes rules for the business transaction of executive.
  • He appoints a number of important executive members like CAG, chairman UPSC, governors of states etc.

  Legislative Powers-

  • He holds the powers to summons or prorogues and dissolve the Lok Sabha
  • Joint sittings of both houses are called by President in case of a deadlock.
  •  He addresses the Indian Parliament at the commencement of the first session after every general election
  • Appointment of speaker, deputy speaker of Lok Sabha, and chairman/deputy chairman of Rajya Sabha are made by him.
  • 12 members of the Rajya Sabha are nominated by him.
  • Several bills such as money bills are introduced with his prior permissions.

Financial Powers of President

  • He causes Union Budget to be laid before the Parliament
  • Contingency Fund of India is controlled by President.
  • Finance Commission is constituted by him every year.

Judicial Powers of President

  • Appointment of Chief Justice and Supreme Court/High Court Judges are made by him.
  • Under article 143, he can seek advice from supreme court on a matter of public importance.

Pardoning powers in India

  • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment. There are five different types of pardoning that are mandated by law.
  • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
  • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
  • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

Emergency Powers of President:

  • On advice of PM, President declares national emergency under Article 352, President’s rule in state under article 356 and financial emergency under article 360.

Ordinance Making Power

  • Article 123 deals with the ordinance-making power of the President. He promulgates an ordinance on the recommendation of the union cabinet when either of the houses of the parliament is not in session.

Veto Power of the President.

Article 111 in India’s Constitution governs the Veto powers of the President. Indian President has the following veto powers-

  • Absolute Veto – Withholding of assent to the Bill passed by the legislature.
  • Suspensive Veto – Which can be overridden by the legislature with an ordinary majority.
  • Pocket Veto – Taking no action on the Bill passed by the legislature.

Discretionary powers of the President

Indian constitutions do not explicitly provide the President with any discretionary powers. However, he has few situational discretions under the below-mentioned situations:

  • Selection of the prime minister when no party has a clear majority in the Lok Sabha or when there is vacancy in Prime Minister’s office due to sudden death of PM.
  • Dismissing of the Council of Minister when it loses vote of confidence.
  • Dissolution of the Lok Sabha if the council of minister has lost its majority vote.

Issues related to President of India

Despite sitting at the helm of the Constitution, the Presidential office has been the regular subject of criticism in the country because of the following reasons:

Being a Titular head only

  • As per the mandate of Article 74 of the Constitution, the President is the Constitutional head of the Union Government and all executive actions are taken in his name.
  • But in actual practice, it is the Prime Minister who makes the decisions and simply informs the President who is bound to act on his advice.

Being a Political Puppet/Rubber Stamp of Council of Minister

  • President has been several times is termed as the rubber stamp of the government as he has to give approval to all executive decisions.
  • For example, in 1975, the then President Fakhruddin Ali Ahmed, readily nodded to then PM Indira Gandhi’s demand for a declaration to impose a National Emergency.
  • After 44th constitutional amendment act, the scope of reconsideration of a bill passed by parliament by President was reduced to just once.
  • BUT it does not mean that the President is merely a rubber stamp. A President with a  strong constitutional morality can make a difference. Under Article 78 of the Constitution the President has a Constitutional right to seek information from the Prime Minister. For example,

Former President K. R. Narayanan exercised his referral powers two times. He sent the advice of the Cabinet for its reconsideration related to the imposition of the President’s rule in the States of U.P. and Bihar during the Gujral and Vajpayee governments respectively and saved those governments.

  • Eminent jurist Professor M. P. Jain: “The influence of the President depends on his personality. A man of character and ability can exert a potent influence on the affairs of the government with his advice, help, knowledge, and experience to arrive at decisions on matters affecting the well-being of the people”

Issue of Presidential activism

  • It is a situation where the President asserts his discretionary powers and does not act according to the aid and advice of the council of ministers. India has a long history of activist Presidents.
  • For example, Rajendra Prasad’s public criticism of government, returning of PEPSU bill in 1954. Similarly, KR Narayanan, APJ Abdul Kalam are also considered as activist Presidents.
  • Many times, constitutional scholars have justified Presidential activism as it has helped in preserving federalism and preventing misuse of article 356.
  • But from the perspective of legal experts, Presidential activism is not desirable in the parliamentary form of government. According to the author of the book “parliament in India” James Manor, the Constitution of India sanctions judicial activism but it doesn’t talks about Presidential activism. President is not an institution to hold the government accountable.

Misuse of Pardoning powers

  • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
  • This power is being widely abused by the President. Former President Pratibha Patil misused the power to great extent as evident form the fact that within 28 months of her Presidentship, she granted a record of 30 pardons which was equal to 90% of all pardons ever made by previous Presidents of India.

Choice of Presidential candidate:

  • Many a times, the appointment of Presidential candidate is to appease particular community or section of the society. Also, he is not chosen directly by the people of the India.

Use of Office of President as reward for loyalty

  • It is considered as office of reward for your life long allegiance to particular party or family.

Despite above criticisms, the President in India plays several crucial roles such as:

  • Safeguard the foundation of parliamentary democracy in India.
  • Involved in situation with no set precedent – appoint prime minister when no party has clear majority in lok sabha or when PM dies suddenly and there is no obvious successor.
  • Custodian for safety of Constitution– He is a preserver, defender and protector of the Constitution of the country.

    In the words of former President of India R. Venkatraman, “the President in India is like an emergency lamp which comes to power only when the main switch is off”

Conclusion

  • Thus, from above we can conclude that the post of President in India can be both ceremonial as well as active depending upon the nature of the person entering the office.
  • All the Presidents in India by now has acted well according to their Constitutional mandates and helped protect the Constitution of India.

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