a) He is a citizen of India.
b) He is over 35 years of age.
c) He is otherwise qualified for election as a member of the Lok Sabha.
d) He must not hold any office of profit under the Government of India or any State or any other authority subject to the control of any of these governments.
e) However, the offices of the President or the Vice-President or the Governor of a State or a Minister for the union or for any state would not be deemed to be holding an office of profit.
Art. 54 provides for indirect election of the President through an Electoral College consisting of –
a) The elected member of the Lok Sabha and the Rajya Sabha
b) The elected members of the legislative assembly of the States.
c) The members of the legislative assembly of the National Capital Territory of Delhi and of the Union Territory of Puducherry.
Manner of election
a) The election of the President is held in accordance with the system of Proportional Representation by means of the single transferable vote.
b) The voting is done by secret ballot.
Value of a vote and securing parity
a) Art. 55 provides for uniformity in the scale of representation of different states at the election of the President.
b) Besides, there should also be parity between the states as a whole and the union.
c) For this purpose the value of votes of an MLA and an MP is counted under the following formula:
CONDITIONS OF OFFICE
a) The President shall not be a member of either house of Parliament or of a House of the legislature of any State.
b) If a person who is a member of the Parliament or of a State Legislature is elected President he shall be deemed to have vacated his seat in the house on the day he enters upon his office as President.
c) The emoluments and allowances of the president cannot be decreased during his term of office. He is entitled to such emoluments, allowances and privileges as may be determined by Parliament by law.
Term of office
a) The President holds office for a term of 5 years from the date on which he enters upon his office.
b) The President is eligible for re-election any number of times. The Constitution does not impose any limit regarding re-election.
c) Vacant Office – In case for any reason the successor to the President does not enter upon the office then the President shall continue to hold office even after expiration of his term for 5 years till his successor takes oath of office.
The office of the President may terminate before the expiry of the term of 5 years
• Resignation – The President submitting his resignation is addressed to the Vice-President.
• Impeachment – The President being removed from office by the process of impeachment in the manner provided in Art. 61.
Impeachment of the President
a) Article 61 – lays down the procedure for the impeachment of the President. The procedure is quasi judicial as well as political.
b) The only ground for impeachment is violation of the Constitution.
c) The charge against the President may be initiated in any house of the Parliament. The charge must be in the form of a proposal contained in a resolution.
d) The notice for moving the resolution must be signed by not less than one fourth of the total number of members of the House.
e) Advance notice of 14 days is required.
f) The resolution must be passed by a majority of not less than two third of the total membership of the House.
g) After the change is so preferred it is investigated by the House. The President has the right to appear and be represented in such investigations.
h) If after investigation the House passes the resolution by 2/3 majority and if the other House also passes this resolution by the same majority, the effect of the resolution would be that the President shall be removed from his office the date on which the resolution is passed.
Disputes regarding Election
a) Article 71 – provides that all disputes in connection with the election of President or Vice-President shall be inquired into and decided by the Supreme Court.
Existence of vacancies
a) If there exist vacancies in the Electoral College which elects the President, the election cannot be called in question on the ground of such vacancy.
b) Election for the post of the President cannot be postponed on the ground that some legislative assemblies have been dissolved and elections are yet to take place because Article 62 mandates that the election to fill a vacancy must be completed before the expiration of the term of the President.
POWERS OF THE PRESIDENT
A. Executive powers
a) The executive power of the Union is vested in the President. The executive power does not only mean the execution of laws passed by the legislative but also the powers to carry out the business of the Government.
b) However, it is evident that President is not free to use his powers; rather he acts on the advice of the Council of Ministers.
c) The executive powers of the President include administrative powers and military powers.
d) Administratively, the President may not discharge any function as there are ministries responsible for such an act. This way President becomes a formal head and action is taken in his name.
e) The administrative power also includes the power to appoint and remove the high dignitaries of the State. The President shall have the power to appoint –
– The Prime Minister of India.
– Other Ministers of the Union.
– The Attorney-General for India.
– The Comptroller and Auditor General of India.
– The judges of the Supreme Court.
– The judges of the High Courts of the States.
– The Governor of a State
– A commission to investigate interference with water-supplies.
– The Finance Commission.
– The Union Public Service Commission and joint Commissions for a group of States.
– The Chief Election Commissioner and other members of the Election Commission
– A Special Officer for the Schedule Castes and Tribes.
– A Commission to report on the administration of Scheduled Areas.
– A Commission to investigate into the condition of backward classes.
– A Commission on Official Language.
– Special Officer for linguistic minorities.
f) In making some of the appointments, the President is required to consult persons other than his ministers as well. Thus, in appointing the Judges of the Supreme Court, the President shall consult the Chief Justice as he may deem necessary [Art. 124(2)].
g) The President shall also have the power to remove
– His Ministers, individually;
– The Attorney-General of India;
– The Governor of a State;
– The Chairman or a member of the Public Service Commission of the Union or of a State, on the report of the Supreme Court;
– A Judge of the Supreme Court or of a High Court or the Election Commissioner, on an address of Parliament.
B. Legislative Powers
a) Summoning, Prorogation, Dissolution: Indian President shall have the power to summon or prorogue the Houses of Parliament and to dissolve the lower House. He shall also have the power to summon a joint sitting of both Houses of Parliament in case of a deadlock between them. [Arts. 85, 108]
b) The Opening Address: The President shall address both Houses of Parliament assembled together, at the first session after each general election to the House of the People and at the commencement of the first session of each year, and “inform Parliament of the causes of its summons” [Art. 87].
c) The Right to send Messages: Apart from the right to address, the Indian President shall have the right to send messages to either House of Parliament either in regard to any pending Bill or to any other matter, and the House must then consider the message “with all convenient dispatch” [Art. 86(2)].
d) Nominating Members to the Houses: President has been given the power to nominate certain members to both the Houses upon the supposition that adequate representation of certain interests will not be possible through the competitive system of election. Thus,
I. In the Council of States, 12 members are to be nominated by the President from persons having special knowledge or practical experience of literature, science, art and social service [Art. 80(1)].
II. The President is also empowered to nominate not more than two members to the House of the People from the Anglo-Indian community, if he is of opinion that the Anglo-Indian community is not adequately represented in that House [Art. 331].
e) Laying Reports before Parliament: The President is brought into contact with Parliament also through his power and study to cause certain reports and statements to be laid before Parliament, so that Parliament may have the opportunity of taking action upon them.
f) Previous sanction to legislation: The Constitution requires the previous sanction or recommendation of the President for introducing legislation on some matters. These matters are:
I. Assent to legislation and Veto: A Bill will not be an Act of the Indian Parliament unless and until it receives the assent of the President. When a Bill is presented to the President, after its passage in both Houses of Parliament, the President shall be entitled to take any of the following three steps
1. His assent to the Bill;
2. He withholds his assent to the Bill; or
3. He may, in the case of Bills other than Money Bills, return the Bill for reconsideration of the Houses, with or without a message suggesting amendments. A Money Bill cannot be returned for reconsideration
4. In case of (c), if the Bill is passed again by both Houses of Parliament with or without amendment and again presented to the President, it would be obligatory upon him to declare his assent to it (Art. 111).
II. Types of ‘Veto power – From the standpoint of effect on the legislation, executive vetoes have been classified as absolute, qualified, suspensive and pocket veto.
1. Absolute Veto: Refusal of assent to any bill. The bill cannot become law, notwithstanding any vote of Parliament.
2. Qualified Veto: A veto is ‘qualified’ when it can be overridden by a higher majority of the Legislature and the Bill can be enacted as law with such majority vote, overriding the executive veto.
3. Suspensive Veto: A veto is suspensive when the executive veto can be overridden by the Legislature by an ordinary majority.
4. Pocket Veto: By simply withholding a Bill during the last few days of the session of the Legislature, the Executive can prevent the Bill to become law.
g) Disallowance of State Legislation:
I. Besides the power to veto Union Legislation, the President of India shall also have the power of disallowance or return for reconsideration of a Bill of the State Legislature, which may have been reserved for his consideration by the Governor of the State (Art. 201).
C. Ordinance Issuing Power (ART- 123)
a) The President has a very strong position in the sense that he has the power of issuing ordinance. In case there is a matter of urgency and a law is needed for a particular situation, the President can issue ordinance.
b) The 38th Amendment in this regard is a mile stone in the sense that his assent is important.
c) The ordinance can be promulgated by the President when the Houses of Parliament are not in session. The ordinance will have the same effect as of the law of the land.
D. Pardoning Power
a) Article 72 of the Constitution empowers the President to grant pardons to persons who have been tried and convicted of any offence in all cases where the:
– Punishment or sentence is for an offence against a Union Law, offence by a court martial (military court) and the sentence of death.
– The object of conferring this power on the President is to keep the door open for correcting any judicial errors in the operation of law and to afford relief from a sentence, which the President regards as unduly harsh.
b) The pardoning power of the President includes the following:
– Pardon It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications
– Commutation It denotes the substitution of one form of punishment for a lighter form. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment
– Remission It implies reducing the period of sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
– Respite It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
– Reprieve It implies a stay of the execution of a sentence (especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or commutation from the President.
E. Emergency Powers
a) The President also enjoys emergency power. In a federal structure the grip of the Union on the State is not so tight and hence the Constitution framers did provide for the exigencies which may require a tighten grip of the Union on the State.
b) Article 356 gives powers to the President for the extension of his rule in the State. “If the President on receipt of report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on; the President may extend his rule to the State.
c) Article 360 deals with financial emergency, “If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory is threatened … the President can declare financial emergency.”
The 38th Amendment (clause 5) has furthered the strength of the President in this regard as his decision is final and cannot be challenged in the Court of law.
NATURE OF THE OFFICE OF GOVERNOR
a) Constitutional provisions concerning the Governor and the Scope of these provisions shows that there are three main facets of Governor‘s role.
b) The three facets so pointed out are
(i) As the constitutional head of the State operating normally under a system of Parliamentary democracy
(ii) As a vital link between the Union Government and the State Government.
(iii) As a representative of the Union Government in a specific areas during normal times [e.g. Article 239(2)] — appointment of the Governor of a State in charge of an adjoining UT; and in a number of areas during abnormal situations [e.g. Article 356(1)]
c) He is the linchpin of constitutional apparatus and assures continuity of Government.
a) The post of Governor is not an elected one unlike the President who is indirectly elected.
b) The Governor is appointed by the President (Art. 155) and holds office for five years subject to the pleasure of the President.
c) To have an appointed Governor in the states by the President ensures that the Governor, apart from being the head of the state executive would also be an agent of the centre.
a) He should be a citizen of India and 35 years of age.
b) He must not be a member of either House of Parliament or State Legislature.
c) He should not hold any Office of Profit.
a) The oath of the Governor is given by the Chief Justice of the High Court or in his absence the senior most Judge of the High Court.
TERM OF OFFICE
a) The Governor holds for a term of 5 years from the date on which he enters in his office.
b) But his appointment may be terminated earlier because he holds office during the pleasure of the President.
c) The Governor may be removed by an order of the President.
d) The President may transfer a Governor appointed to one state to another for the rest of term.
e) A Governor whose term has expired may be reappointed in the same or any other state. There is no bar to being appointed Governor more than once.
f) The Governor may resign by writing, addressed to the President
Arrangement for discharges of functions
a) The President has been vested with the power to make arrangements for discharging the functions of the Governor in any contingency not provided for in the Constitution (Art. 160).
b) Normally under an exigency, the President gives dual charge to a Governor of States.
c) In some cases the Chief Justice of the State High Court were appointed acting Governor.
POWERS OF THE GOVERNOR
A. Executive powers
a) Governor being the head of the state executive, all executive action is expresses to be taken in the name of the Governor.
b) Appointments –
(i) The Chief Minister and other ministers with the advice of the Chief Minister. He has to appoint the leader of the party having absolute majority in the legislative assembly as the Chief Minister. However, in case of no party having a clear cut majority in the House, the Governor may use his discretion.
(iii) Chairman and the members of the State Public Service Commission.
(iv) Members of the subordinate judiciary (District Judge and below).
(v) Vice-Chancellors of state universities.
c) The Governor is the Chancellor of the universities run by the state.
d) Though the Governor has no power to appoint the Judges of the state High Court, he may be consulted by the President in such appointment.
B. Legislative powers
The Governor is a part of the legislature (Art. 168). In this capacity he performs the following legislative functions:
(i) To summon, prorogue and dissolve the legislative Assembly.
(ii) Right to address the legislature and to send messages to it.
(iii) No Bill can become a law unless the Governor gives assent to it. He can give his assent, withhold his assent or use the pocket veto to a state Bill.
(iv) He nominates one member of the Anglo-Indian community to the state assembly and one-sixth of the members of the legislative council from among persons having special experience in art, science, literature, social service or cooperative movement.
(v) Art. 200: Assent to Bills
(i) When a Bill has been passed by the Legislature of a State, it shall be presented to the Governor who may accept or reject the Bill.
(ii) In the case of Bills other than Money Bills, he may return to the legislature for reconsideration.
(iii) Governor may also reserve the Bill for consideration of the President.
(iv) When a Bill is returned to legislature by the Governor, it must be passed again to be accepted by the Governor.
(v) In essence as per the Article 200, when a Bill passed by the Legislature of a State is presented to the Governor, he has four option
1. he assents to the Bill when it becomes an Act
2. he withholds assent
3. he returns the Bill to the Legislature for reconsideration
4. he reserves time Bill for the consideration of the President
(vi) Art. 201. Bills reserved for consideration
(i) When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent in case of a Money Bill.
(ii) In other Bills, he may return the Bill for repassage— the third option for the President.
(iii) The repassed Bill need not be assented to by the President and he may return it again and again. Thus, it is an absolute veto
(iv) Also, there is no time limit within which the President should take a decision.
(v) There have been instances where Bills have been pending with the President for periods up to six years or more.
(vi) The most recent Bill to be reserved by the Governor for the Presidential assent is the GUJCOC Bill Gujarat Control of Organised Crime Bill for which the President has expressed the need for three changes and returned it.
C. Ordinance making powers
a) Art. 213 empower the Governor to promulgate ordinances during the recess of state legislature.
b) These ordinances will have the same force and effect as a law passed by the state legislature.
c) However, the ordinances are temporary measures to be taken when the state legislature is not in session and a law is urgently required. Therefore, it must be regularized by the approval of the state legislature within six weeks of its next session or else it will cease to operate.
d) The differences between the ordinance making powers of Governor and the President
(i) Largely the powers of the Governor in the promulgation of ordinances are similar to the President. There are the following differences:
1. If the ordinance has contents which in the form of a Bill would require Presidential permission before hand for introduction or
2. If the ordinance has contents which in the form of a Bill would be compulsorily reserved for Presidential assent after passage as a matter of Constitutional requirement— for example, a Bill derogating from the powers of the High Court, or
3. If the ordinance has contents that in the form of a Bill would have inclined the Governor to reserve it for the President- for example, the GUJCOC Bill in the most recent case In all the above cases, the Governor would take the prior consent of the President before passing the ordinance.
D. Financial powers
a) Under Art. 202, the Governor is required to be laid before the House or Houses of the legislature the Budget or the Annual Financial Statement.
b) A money bill cannot be introduced without the recommendation of the Governor.
c) A Demand for Grant cannot be moved without the recommendation of the Governor
E. Judicial or pardoning powers
a) Article 161 confers on the Governor the power to grant pardon, commutation, remission, respite or reprieve to any person convicted of any offence against any law relating to matters to which the executive power of the State extends. This power is available to the President under Art. 72. However, the power of the President under Art. 72 is much wider. The President has the exclusive power to grant pardon in cases where a person has been sentenced to death.
b) The Governor cannot grant pardon in case of death sentence. He can only commute the punishment.
c) The Governor has no power in relation to Court Martial. In regards to suspension remission and commutation of sentence of death the powers of the Governor and President are concurrent.
F. Discretionary powers of the Governor
a) Art. 163 – There shall be a Council of Ministers headed by the Chief Minister to aid and advise the Governor and the Governor shall exercise his powers according to such advice except where the Constitution requires him to act in his discretion.
b) There are two types of situations in which the Governor is expected to use his discretion
(i) Those, which are implied by the nature of Parliamentary democracy and the Constitution.
(ii) Those where the Constitution has expressly imposed special responsibility on the Governor.
IMPLICIT POWERS BY THE CONSTITUTION
a) Choice of Chief Minister in case of a hung Assembly.
b) Asking the Government to prove its strength in the Assembly.
c) Dismissing a Chief Minister who loses the confidence of the House.
d) Recommending President’s Rule (Art.356).
e) Reserving Bills for consideration of the President (Art. 200).
SPECIAL RESPONSIBILITY POWERS OF GOVERNOR
a) Art. 371 (1) – Special responsibility of the Governor of Maharashtra and Gujarat for the establishment of development boards for Vidarbha, Marathwada, Saurashtra and Kutch, etc.
b) Art. 371A – Special responsibility of the Governor of Nagaland with respect to law and order so long as internal disturbances occur in some area of the state. To establish a regional council for Tuensang district to arrange for equitable allocation of Money between Tuensang district and the rest of Nagaland.
c) Art. 371 C (1) – Special responsibility of the Governor of Manipur to secure the proper functioning of a committee of the members of the legislative Assembly consisting of the members representing the hill area.
d) Art. 371F (g) – Special responsibility of the Governor of Sikkim for the peace and for an equitable arrangement for ensuring the advancement of different section of the population of Sikkim.
e) Art. 371H (a) – Special responsibility of the Governor of Arunachal Pradesh with respect to law and order.
f) The 6th Schedule provides that the Governor of Assam shall determine the amount payable by the state of Assam to the district council as royalty accruing form licenses for minerals.