Constitutional Provisions Related to President of India

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Constitutional Provisions Related to President of India | Overview

• Introduction
• Election and Required Qualification of the President of India
• Tenure and Impeachment of the President of India
• Powers and Privileges of the President of India
• Conclusion

The provisions from Article 52 to 62 of the Constitution are the provisions related to the President of India. The Part V of the Constitution under Union has Chapter I which talks about the Executive has listed out the qualification, election and impeachment of the President of India. The powers have been defined in various different Articles of the Indian Constitution. The President of India is known to be the head of state of the Republic of India and is also the formal head of the executive, legislature and judiciary of India and is also the commander-in-chief of the Indian Armed Forces.[1]

Introduction

Rajendra Prasad was the first President of independent India.[2] Article 52 of the Indian Constitution provides that there shall be a President of India. The Indian constitution accords with the president, the responsibility and authority to defend and protect the Constitution of India and its rule of law.[3] Without any variation, if any action is taken by the executive or legislature organs of the constitution shall become law only after the assent of the President and the President shall not accept any actions of the executive or legislature which are unconstitutional.[4]

The President is the foremost, most empowered and prompts defender of the Constitution, who has the pre-emptive power for ensuring constitutionality in the actions of the executive or legislature and the role of the judiciary in upholding the Constitution of India is the second line of defence in nullifying any unconstitutional actions of the executive and legislative entities of the Indian Union.[5]

Election and Required Qualification of the President of India

Article 58 of the Constitution of India provides for the qualification of the election of the President of India. According to the clause (1) a person is only eligible for the election of the President until and unless he is a citizen of India, he has completed the age of thirty-five years and is qualified for the election as a member of the House of People.

According to the clause (2), a person is not eligible for the election of President if he already holds any office of profit under the Government of India or the Government of any of the State or under any local or other authority which is subject to the control of any of the said Governments. For the purposes of this article, 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.[6]

In the leading case of Peter Samuel Wallace v. Union Of India And Ors,[7] it was held that the requirements not fulfilled by the petitioner were alleged by him as unconstitutional and he could, therefore, still claim that he is a duly nominated candidate though the Returning Officer may take the view that his nomination did not fulfil the requirements of the law.

Article 54 of the Constitution of India, the President should be elected by the members of the Electoral College which consists of the elected members of both the Houses of the Parliament and by the elected members of the Legislative assemblies of the State. The explanation the “State” includes the National Capital Territory of Delhi and the Union territory of Pondicherry.

Article 55 of the Constitution of India, defined the manner of election of the President. According to clause (1), there needs to be uniformity in the scale of representation of the different States at the election of the President.

The clause (2) of the Article provides that in order to secure this type of uniformity aiming the States the number of votes which each elected member of the Parliament and of the Legislative Assembly of each State is entitled to cast at such election needs to be determined in the manner such that every elected member of the Legislative Assembly of a State shall have as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the State by the total number of the elected members of the Assembly;

if, after taking the said multiples of one thousand, the remainder is not less than five hundred, then the vote of each member referred to in sub-clause (a) shall be further increased by one; 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 under sub-clauses (a) and (b) by the total number of the elected members of both Houses of Parliament, fractions exceeding one-half being counted as one and other fractions being disregarded.

The clause (3) of the Article provides that the election of the President should be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.

Article 71(1) provides that all doubts and disputes arising out of or in connection with the election of a President or Vice President shall be inquired into and decided by the Supreme Court whose decision shall be final. In Narayan Bhaskar Khare v. The Election Commission of India,[8] and in N. P.Ponnuswami v. Returning Officer, Namakkal Constituency,[9] it was held by the Supreme Court that the doubts and disputes in connection with an election cannot be raised by way of a writ petition before the election is held even in the Supreme Court and it is only after the election is held and in an election petition that the Supreme Court can resolve these doubts and disputes.

The locus standi for raising such doubts and disputes is possessed only by a candidate who alone can file an election petition. He could have become a candidate. It is his own willful default which is responsible for not becoming a candidate. In our view, therefore, he does not have any locus standi to question the validity of the Presidential election scheduled to be held on August 17, 1974, irrespective of the grounds which he may wish to urge to invalidate the said election. For, all such grounds could be urged by him only in an election petition filed in the Supreme Court.

Tenure and Impeachment of the President of India

Article 56 of the Indian Constitution provides for the term of the President of India. According to the clause (1) of the Article, the president can hold the office for five years from the date on which he has entered upon his office, provided that the President resigns the office by providing the same in writing to the Vice President, or has been removed from the office through the process of impeachment. According to the clause (2) of the Article, any resignation which has been provided to the Vice President should be communicated to the Speaker of the House of the People.

Article 61 of the Constitution provides the provision of procedure of impeachment of the President. The clause (1) of the Article provides that when a President is to be impeached for violation of the Constitution, these charges shall be preferred by either House of Parliament. The clause (2) of the Article provides that no such charge shall be preferred unless:-

1. the proposal to prefer such charge is contained in a resolution which has been moved after at least notice of fourteen days in writing signed by not less than one-fourth of the total number of members of the House has been given of their intention to move the resolution, and
2. such resolution has been passed by a majority of not less than two-thirds of the total membership of the House.

The clause (3) of the Article provides that when a charge has been so preferred by either House of Parliament, the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented at such investigation.

The clause (4) of the Article provides that if as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total membership of the House by which the charge was investigated or caused to be investigated, declaring that the charge preferred against the President has been sustained, such resolution will be having the effect of removing the President from his office as from the date on which the resolution is so passed.

Powers and Privileges of the President of India

The President of India has been vested with enumerable powers, functions and privileges.

1. Executive Power

Article 53 of the Constitution provides for the executive power of the President under which he has the supreme command on the Defense Forces and the President can regulate any or every law regarding the same. Under this power, the President has the power to sign or veto legislation, command the armed forces, ask for the written opinion of their Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors.[10]

In Amritlal v. F.N. Rana,[11] it cannot, however, be assumed that the legislative functions are exclusively performed by the legislature, executive functions by the executive and judicial functions by the judiciary alone. The constitution has not made absolute or rigid divisions of function between the three agencies of the State.

2. Legislative Power

The President along with the council of ministers is both members of the parliament and participates intimately in the legislative making process. The President has the power to convene and prorogue to dissolve Lok Sabha. The President has the power to pass a bill and his assent is required for the transforming a bill passed by the two houses into an act.[12]

The President has ordinance making power which empowers the President to promulgate ordinance as the circumstances which appear to require When both houses of the parliament are not in session; he is satisfied that the circumstances exist which render it necessary for him to take immediate action.[13]

In B.K. Sardarilal v.Union Of India,[14] it was held that argument can be of any use to the petitioner. The constitutional prohibition contained in clause (2) of Article 77 is absolute and, therefore, cannot be given a go-by by an admission that the respondents may choose to make. Conferment of jurisdiction and power on courts is regulated by provisions of law and not by the admissions made by the parties.

3. Judicial Powers

The President has the power to appoint the Chief Justice of Supreme of Court of India and other judges on the advice of the Chief Justice. The President can dismiss the judges if and only if the two Houses of the Parliament decides to pass resolutions to that effect that too by a two-thirds majority of the members present.

The President also has the right to grant pardon. The president enjoys the judicial immunity and also no criminal proceedings can be initiated against the president during the term in office of the president is not answerable for the exercise of his/her duties.[15]

4. Emergency Powers

The President has Emergency powers according to Article 352, 356 and 360. President may proclaim a state of emergency in the whole or part of India if he feels that a grave situation has arisen in which the security of India on part of its territory might get threatened by war or external aggression or rebellion.[16] During the financial emergency, the President gets the financial powers as well.

Conclusion

It has been observed that although the President of India has enormous powers he can only exercise them with the advice of Prime Minister and Council of Ministers as provided under Article 73 and 74 of the Constitution. It is important to note that the President is the first citizen of India who is the protector of the entire nation per se.

[1] Chapter 17, Laxmikanth. M, Indian Polity, Tata McGraw-Hill Education India, ISBN: 9781259064128, 9781259064128

[2] Jai, Janak Raj (2003),  Presidents of India, 1950–2003,  Regency Publications, ISBN: 978-81-87498-65-0

[3]  Sharma, Brij Kishore, Introduction to the Constitution of India, (2007) PHI Learning, ISBN: 978-81-203-3246-1.

[4] Ibid.

[5] Singh, Mahendra Prasad (2019), “Ambedkar: Constitutionalism and State Structure”, In Roy, Himanshu; Singh, Mahendra Prasad (Eds.). Indian Political Thought: Themes and Thinkers, Noida: Pearson India Education Services,  ISBN 978-93-325-8733-5

[6] Article 58, the Indian Constitution, 1950

[7]  AIR 1975 Delhi 112, 11 (1975) DLT 155

[8] (1957) S.C.R. 1081, (1)

[9] (1951) S.C.R. 218, (2)

[10] Singh, M.P, Constitution of India, Lucknow: Eastern Book Co, 1990

[11] 1964 AIR 648, 1964 SCR (5) 294

[12] https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1574&context=uclrev

[13] Article 123, the Constitution of India, 1950

[14] ILR 1968 Delhi 534

[15] Supra.

[16] Article 352, the Constitution of India, 1950

1. Introduction to the Constitution of India, 1950(Opens in a new browser tab)
2. Constituent Assembly – Journey And Challenges(Opens in a new browser tab)