Articles (52 to 78 and 123)
The Union Executive consists of the President, the Vice-President, the Ministers and the Attorney General
The President of India (Article 52)
President: The Head of Union Executive provides that there shall be a President of India. Article 53(1) declares the President to be the head of the Union Executive. It provides that the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him. However, he shall exercise this power in accordance with the provisions of the constitution.
Election of President
Qualifications for Election as President (Article 58):
Article 58 lays down the following qualifications which a person possesses for being eligible for election as President –
- He must be a citizen of India.
- He must have completed the age of thirty-five years.
- He must be qualified for election as a member of the House of People.”
- He must, therefore, be registered as a voter in a Parliamentary Constituency.
- He must not hold any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Government.
Explanation attached to Article 58 declares that for the purposed Article 58, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State.
Office of Profit (OOP)
Article 102 (1)(a) declares a person disqualified if he holds office of Profit. The underlying idea beyond this requirement is that the employee should be free from any pressure from the Government, so that there is no conflict of interest in the discharge of his independent duties as an elected person.
Meaning of OOP
It is neither defined in the Constitution, nor in RPA 1951.
- In Mahadeo vs Shantabai, SC referred to Webster Dictionary where in the Word office means a function or duty assigned to someone, especially as an essential part of his work or Position.
- In 1964, the Supreme Court in Satrucharla Chandrasekhar Raju vs. Vyricherla Pradeep Kumar Dev and Another ruled that the test for determining whether a person holds an office of profit is test of appointment. Several factors are considered in this determination including factors such as:
- Whether the government is the appointing authority.
- Whether the government has the power to terminate the appointment.
- Whether the government determines the remuneration
- What is the source of remuneration, and
- The power that comes with the position.
- In Pradyut Bordoloi Vs Swapan Roy (2001): SC has added 2 more factor to test the office of OOP:-
- Whether the body in which the office is held has Government powers like releasing Money, Granting License.
- Whether the Office enables a holder to influence by way of Patronage.
Constitution provisions about holding an ‘office of profit, exemptions under the law
- Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the central or state government.
- The Constitution specifies that the number of ministers including the Chief Minister has to be within 15% of the total number of members of the assembly (10% in the case of Delhi, which is a union territory with legislature).
- Provisions of Articles 102 and 191 also protect a legislator occupying a government position if the office in question has been made immune to disqualification by law.
- In the recent past, several state legislatures have enacted laws exempting certain offices from the purview of office of profit. Parliament has also enacted the Parliament (Prevention of Disqualification Act) which has been amended several times to expand the exempted list.
- It was reported in 2015 that all the 60 MLA OF Nagaland Assembly had joined the ruling alliance.
- The Nagaland Chief Minister appointed 26 legislators as parliamentary secretaries in July 2017.Goa, an assembly of 40 MLAs, exempted more than 50 offices from the ordinance issued in June last year.
- Puducherry, an assembly of 33 MLAs, exempted more than 60 offices by passing an amendment bill in 2009.
- In Delhi, the 21 parliamentary secretaries added to the seven ministerial posts would constitute 40% of the 70-member legislature.
- In 2019, Punjab cabinet has passed ordinance to exclude appointment of advisor to CM from ambit of OOP.
The Second Judicial Reforms Commission has opined that by exempting numerous offices from disqualification without any clear rationale, Articles 102 and 191 have been violated in spirit.
- The Calcutta High Court has observed that the appointment of MLAs as parliamentary secretaries was an attempt by state governments to bypass the constitutional ceiling on the number of ministers.
- In 2009, the Bombay High Court also held that appointing parliamentary secretaries of the rank and status of a cabinet minister is a violation of Article 164 (1A) of the Constitution. The Article specifies that the number of ministers including the Chief Minister should not exceed 15% of the total number of members in the assembly.
Posts which are not OOP
SC in “Smt Kanta Kathuria vs Manak chand surana”, held that there must be an office which existed independently of the holder of the office.
Thus the court held that appellant appointed as special Government pleader, to conduct arbitration case between the Government of Rajasthan and Modern Construction was appointed only to assist the Government advocate in the particular case was not holding office since the engagement did not exist independently of the office.
The Bhargava committee has made following recommendations regarding offices of profit:
- Offices in purely advisory bodies should not be treated as offices of profit, irrespective of any remuneration attached with the office.
- If the officeholder is the Head or Member of such organisation where close coordination between the Council of Ministers and the organisation is essential for functioning of the Government, the office should not be treated as an office of profit.
President-Electoral College (Article 54)
- Article 54 provides: “The President shall be elected by the members of the electoral college consisting of-
- the elected members of both Houses of Parliament; and
- the elected members of the Legislative Assemblies of the States”
- The term “State” in Article 54 does not include a Union Territory. The Constitution (Seventieth Amendment) Act, 1992 has inserted a nation at the end of Article 54 to the effect that “in this Article and in article 55 State’ includes the National Capital Territory of Delhi and the union Territory of Pondicherry. It may be noticed that only elected members of the Houses of Parliament that of the Legislative Assemblies of the States are the members of the Electoral College. The Nominated Members do not take part in the election the President.
Manner of Election (Article 55 (1) & (2))
- Article 55 requires that, as far as practicable, there shall be maintained uniformity in the scale of representation among the States inter se as well as between the States as a whole and the Union. To achieve such uniformity and parity, Article 55 contains the formula to be adopted at the election of the President for determining the number of votes which each member of the Electoral College shall be entitled to cast.
- The formula provided is that every elected member of the Legislative assembly of a State shall have as many votes as there are multiples of one hand in the quotient obtained by dividing the population of the State by the total number of the elected members of the Assembly.
- Article 55 provides that each elected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the States by the total number of the elected members of both the Houses of Parliament.
System of Election [Article 55(3)]
- Clause (3) of Article 55 provides that the election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote.
- The object for adopting this system is to elect that candidate found to be more popular among the electors. This system is adopted when there are more than two candidates in the election of the President. In such a case, if simple majority rule is applied, then a candidate getting less than 50 per cent of votes cast in the election, would be declared elected. While according to system of proportional representation, the candidate to be declared successful once he/she obtains an absolute majority votes.
- Quota to be obtained by the candidate to be declared successful:
Total valid votes cast/Number of candidates to be elected+ 1
Grounds for rejection of the nomination of a candidate in the Presidential election
A nomination paper may be rejected by the Returning Officer on the following grounds under Section 5E of the Presidential and Vice-Presidential Elections Act, 1952:
- On the date of scrutiny of nominations, the candidate is not eligible for election as President under the Constitution; or
- if any of the proposers or seconders is not qualified to subscribe a nomination paper, i.e., he is not an elector at the election; or
- if it is not subscribed by the required number of proposers and/or seconders; or
- if the signature of the candidate or any of the proposers or seconders is not genuine or has been obtained by fraud; or
- if the nomination paper is not presented in person by the candidate or any of his proposers or seconders or if it is not delivered to the Returning Officer, within the hours and dates prescribed for the purpose or at the place appointed for the purpose, or the candidate has failed to make the required security deposit in the prescribed manner
Time for Holding Election of the President (Article 62)
- Clause (1) of Article 62 provides that “an election to fill a vacancy caused by the expiration of the term of President shall be completed before the expiration of the term.”
- Clause (2) of Article 62 further provides that “an election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal or otherwise shall be held as soon as possible after, and in no case later than six months from the date of occurrence of the vacancy.” It is further provided that the person elected to fill the vacancy, shall, subject to the provisions of Article 56, be entitled to hold office for the full term of five years from the date on which he enters upon his office.
- It has been ruled that Article 62 is mandatory in nature. It requires that the election of the President must be completed before the expiration of the term of the earlier President. To fill a vacancy in the office of the President by reason of his death, resignation, removal or otherwise, the election must be completed before the expiration of six months from the date of occurrence of the vacancy. The term “otherwise” in Article 62(2) refers cases where the vacancy in the President’s office is caused by reason of his becoming disqualified to hold office or where his election is declared void.
Election of US President
Step 1: Primaries and Caucuses
- There are many people who want to be President, each with their own ideas about how the government should work. People with similar ideas belong to the same political party. This is where primaries and caucuses come in. Candidates from each political party campaign through the country to win the favour of their party members.
- Beginning in February the main voting events Primaries and Caucuses will lead to a selection of delegates who will represent the people at the upcoming conventions. The main focus will be on the results from Iowa New Hampshire Nevada and South Carolina which can usually determine who the final presidential nominee for each party will be.
- In a Caucus: Party members select the best candidate through a series of discussions and votes.
- In a Primary: Party members vote for the best candidate that will represent them in the general election.
Step 2: National Conventions
- Each party holds a national convention to select a final presidential nominee. State delegates from the primaries and caucuses selected to represent the people will now “endorse” their favourite candidates and the final presidential nominee from each party will be officially announced at the end of the conventions. The presidential candidate also chooses a running mate (Vice Presidential candidate). The presidential candidates campaign throughout the country to win the support of the general population.
Step 3: General Election
- People in every state across the country vote for one President and Vice President. When Americans go to the polls in November they will select their favourite presidential candidate and their running mate.
- When people cast their vote, they are actually voting for a group of people called electors. Except in the states of Maine and Nebraska, if a candidate receives the majority of the votes from the people of a state then the candidate will receive all electoral votes of that state.
- The presidential nominee with the most electoral votes becomes the President of the United States.
Step 4: Electoral College
- The Electoral College is a process in which electors or representatives from each state in number proportional to the state’s population cast their vote and determine who will be president.
- Each state gets a certain number of electors based on its representation in Congress. There are a total of 538 electors selected according to each state’s policy. Each elector casts one vote following the general election, and the candidate who gets more than half (270) wins.
- The newly elected President and Vice President are inaugurated in January.
Election of French President
Who can vote? The President is elected by direct universal suffrage: -Universal: All French citizens aged 18 and over can vote, whether residing in France or not, Direct: Votes are directly attributed to the candidates
What are the main stages in the election?
7 weeks before the second round/21 March: The official list of candidates is published To officially be a candidate, contenders must, among other things, be nominated by at least 500 elected representatives (e.g. mayors, deputies).
4 weeks before the second round/10 April Official electoral campaign: There is an upper limit on spending which is monitored by a committee – Once the official campaign has begun, each candidate must have strictly the same amount of airtime on TV and radio.
2 weeks before the second round/23 April 1st round of the election: The French people go to the polls: if no candidate wins over 50% of the vote, a second round is organized.
Second round/7 May 2nd round of the election: Only the two candidates with the most votes qualify for the 2nd round. The candidate with the absolute majority of votes cast is elected. Blank or spoilt votes are not taken into account.
Advantages of Double voting system:
- First and foremost, the Two-Round System (TRS) allows voters to have a second choice for their chosen candidate, or even to change their minds on their favoured choice between the first and the second rounds. It thus shares some features with preferential systems like the Alternative Vote (AV) in which voters are asked to rank candidates, while also enabling voters to make a completely fresh choice in the second round if they so desire.
- Secondly, it encourages diverse interests to coalesce behind the successful candidates from the first round in the lead-up to the second round of voting, thus encouraging bargains and trade-offs between parties and candidates.
- TRS also enables the parties and the electorate to react to changes in the political landscape that occur between the first and the second rounds of voting.
- In addition, TRS systems lessen the problems of ‘vote splitting’, the common situation under First Past the Post (FPTP) elections where two similar parties ‘split’ their combined vote between them, thus allowing a less popular candidate to win the seat.
- Finally, because electors do not have to rank candidates with numbers to express their second choice, TRS may be better suited to countries with widespread illiteracy than systems which use preferential numbering like the AV or the Single Transferable Vote
Challenges of Double voting system: It places considerable pressure on the electoral administration to run a second election soon after the first, significantly increasing the cost of the overall election process and the time between the holding of an election and the declaration of a result; this can lead to instability and uncertainty.
The TRS also places an additional burden on the voter, and sometimes there is a sharp drop-off in turnout between the first round and the second. In addition, the TRS shares many of the disadvantages of a First Past the Post (FPTP) system, without its countervailing simplicity. Research has shown that the TRS in France produces the most disproportional results of any Western democracy.
Term of office of President (Article 56)
- Article 56 provides that the President shall hold office for a term of five was from the date on which he enters upon his office. However, he may, by writing under his hand and addressed to the Vice-President, resign his office at any time before the completion of his term of five years.
- The President may also be removed for the violation of the Constitution, by impeachment, in the manner provided in Article 61.
Eligibility of Re-Election (Article 57):
- Article 57 says that a person who holds, or who has held, office as President, shall be eligible for re-election to that office.
- The Constitution thus does not place any bar on the re-election of the same person to the office of the President.”
Conditions of President’s Office (Article 59)
- Article 59 lays down the following conditions for the office of the President-
- The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
- The President shall not hold any other office of profit (c) The President shall be entitled without payment of rent to the use of his official residence, which is commonly known as Rashtrapati Bhawan.
- The President is entitled to such emoluments, allowances and privileges as may be determined by Parliament, by law. The emoluments and allowances of the President cannot be diminished to his disadvantage during the term of his office.
Oath of Affirmation by the President (Article 60):
- Every President and every person acting as President or discharging the functions of the office of the President is required by Article 60, to make and subscribe in the presence of the Chief Justice of India, or, in his absence, the senior-most Judge of the Supreme Court available.
Form of Oath
The President shall take the oath swearing in the name of God that he will faithfully execute the office of the President (or discharge the functions of the office of the President) of India and will, to the best of his ability. preserve, protect and defend the Constitution and the law” and that he will, devote himself to the service and well-being of the people of India.”
Procedure for Impeachment of the President-Removal of the President (Article 61)
- Article 56(1)(b) provides that the President may be removed from his office for the violation of the Constitution by impeachment” in the manner provided in Article 61. The only ground on which the President can be removed from his office is the violation of the Constitution. The procedure contained in Article 61, to be followed for the impeachment of the President, is as follows-
- The proposal to prefer a charge against the President for violating the Constitution may be preferred or initiated in either House of Parliament only.
- The proposal to prefer such charge must be contained in the form of a resolution.
- The resolution can be moved in either house of Parliament only after the expiry of a notice of 14 days. The notice must be in writing and signed by not less than one-fourth of the total number of members of the House in which the resolution is to be moved. The notice must express the intention to move such a resolution.
- Such resolution must be passed by the House in which it is initiated by a majority of not less than two-thirds of the total membership of the House.
- When the resolution is passed by the House in which the charge has been preferred, the other House shall investigate the charge or cause the charge to be investigated. During this investigation, the President shall have the right to appear and to be represented.
- If after such investigation, the House, in which the charge against the President is investigated, passes a resolution by a majority of not less than two-thirds of the total membership of the House, declaring that the charge preferred against the President, has been sustained, such resolution shall have the effect of removing the President from his office as from the date on which the resolution is so passed.
Privileges of the President (Article 361)
Article 361 provides the following privileges for the President:
- The President is not answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of those powers and duties. However, the conduct of the President may be brought under review by any Court or body which may be appointed or designated by the House of Parliament for the investigation of the charge against the President in the impeachment proceedings taken under Article 61.
- No criminal proceedings, whatsoever, shall be instituted or continued against the President in any court during the term of his office.
- No process for the arrest or imprisonment of the President shall be issued from any court during the term of his office.
- No civil proceedings in which the relief is claimed against the President shall be instituted during the term of his office in any court in respect of any act done or purported to be done by him in his personal capacity, whether before or after he has entered upon his office as President, until a notice in writing has been given to the President and two months have elapsed since the service of that notice.
Doubts and Disputes in respect of the Election of the President (Article 71)
- Article 71 (1) declares that all doubts and disputes arising out of or in connection with the election of the President shall be inquired into and decided by the supreme court whose decision is final.
- If the election of the President is declared void by the Supreme Court, Clause (2) declares the acts done by him in the exercise of his powers and performance of the duties of the office of President, shall not be invalidated by reason of the declaration of his election as void.
- Clause (3) of Article 71 empowers the Parliament to regulate by lay any matter relating to or connected with the election of the President. In the exercise of the powers so conferred, Parliament enacted the Presidential a Vice-Presidential Elections Act, 1952. The Act regulates various matters is respect of the election of the President and that of the Vice-President. The Act has been amended by the Amendment Acts of 1974 and 1997.
- The Act, 1997 requires that the name of the Presidential candidate m be proposed by at least 50 electors and be seconded by 50 other electors It is to discharge light minded persons from contesting the Presidential election The Act further provides that the election petition for challenging the election of President can be filed either by a candidate at the election or 20 electors joining together in the petition.
- Clause (4) of Article 71 declares that the election of a person as President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the Electoral College electing him.”