The President of India: Eligibility, election process, privileges and relation with Council of Minister

In this article we made a comprehensive note on President of India comprising brief history, qualification, election process, privileges and relation with Council of Minister

 

Introduction

 

In the Preamble to the Constitution, India is declared to be a “Sovereign, Socialist, Secular, Democratic, Republic”. Being a republic, there can be no hereditary monarch as the head of the State in India, hence the institution of the President.

 

Historical Evolution

 

The office of the President of India traces its roots back to the Constitution of India, adopted in 1950. Dr. Rajendra Prasad, a prominent freedom fighter and one of the architects of independent India, became the first President, setting a precedent for the position. Since then, the office has been occupied by illustrious individuals from diverse backgrounds, each contributing to the nation's growth and development in their unique capacities.

 

Eligibility

 

The qualifications required to become the President of India are outlined in the Constitution of India under Article 58. According to the Constitution, a person aspiring to hold the office of the President must fulfil the following criteria:

 

1. Citizenship: The individual must be a citizen of India.
2. Age: The minimum age for eligibility is 35 years.
3. Qualifications for Members of Parliament: To be eligible for the office of President, a person must qualify for election as a member of the Lok Sabha (House of the People), the Rajya Sabha (Council of States), or both.
4. No Government Office or Profitable Employment: The candidate should 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 Governments.
5. Sound Mind and Not Insolvent: The person should be of sound mind and not declared to be insolvent.
6. Election by an Electoral College: The President is elected by an Electoral College, which consists of elected members of both houses of Parliament (Lok Sabha and Rajya Sabha) and elected members of the Legislative Assemblies of States and Union territories.
7. Oath or Affirmation: Before entering upon his/her office, the President is required to make and subscribe in the presence of the Chief Justice of India an oath or affirmation to faithfully execute the office of the President and to preserve, protect, and defend the Constitution and the law.

 

These qualifications ensure that the President of India is a person of integrity, capable of upholding the Constitution and discharging the duties of the highest office in the country. The selection process ensures that the President represents the will of the people and is chosen from among individuals with a demonstrated commitment to public service and the nation's welfare.

 

Election of the President

 

The Office of the President of India is created by Article 52 of the Constitution. The President is elected not directly by the people, but by the method of indirect election. The constitution makers were faced with the question whether the President should be elected directly by the people or not? Ultimately, they chose the indirect election procedure so as to as to emphasize the ministerial character of the executive that the effective power resides in the Ministry and not in the President as such

 

It would have been anomalous to have the President elected by adult suffrage directly by the people and not to give him any real and substantive power. Also, the method of direct election would have been very costly and energy consuming. There was also the fear that a directly elected President may emerge, in course of time, as a centre of power in his own right.

 

On the other hand, the framers of the Constitution did not want the President to be elected merely by Parliament alone as that would have been a very narrow basis, and Parliament being dominated by one political party would have invariably chosen a candidate from the party. In that case, the President would not have commanded national consensus.

 

The President is elected by an electoral college, consisting of the elected members of both House of Parliament and the State Legislative Assemblies [Article 54], S.K. Singh Vs. V.V. Giri, AIR 1979 SC 2097, in accordance with the system of proportional representation by means of single transferable vote by secret ballot [Article 55(3)]. The votes cast by all members of the electoral college are not of uniform value. Votes are apportioned amongst them according to the following two principles:

 

(1) As far as practicable there is uniformity in the scale of representation of the different States at the presidential election (Art 55(1)]. To achieve this result, a member of the electoral college from a State Legislative Assembly has as many votes as are obtained by the following formula [Article 55(2)(a)]

 

 

                       State population                                                           1      

    ⸻⸻⸻⸻⸻⸻⸻⸻⸻⸻    Χ     ⸻

Total Number of elected member in the State Legislative Assembly                     1000          

 

 

This formula secure to a member of State Legislative Assembly votes in the ratio of the population of the State and thus, a small State having a relatively larger legislature cannot swamp the votes of a large State, having comparatively a smaller legislature.

 

(2) There is a parity of votes between the elected members of the House of Parliament, and of the State Legislative Assemblies, so that the former command the same number of votes in the electoral college as the latter. This result is achieved by the following formula which gives the number of votes available to a member of Parliament in the electoral college [Article 55(2)(c)]

 

Total number of votes assigned to the members of the State

Legislative Assemblies in the Electoral College

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Total number of elected member of the wo Houses of Parliament

 

The President's election is not to be called in question on the ground that any vacancy exists in the electoral college electing him [Article 71(4)].

 

In its advisory opinion in In re, Presidential Poll AIR 1974 SC 1682 the Supreme Court has ruled that the election of the President can be held when a State Assembly has been dissolved under Article 356 and its members are unable to participate in the election.

 

Article 71(4) protects President’s election from being challenged on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him. The language at this provision is wide enough to cover vacancies arising in the electoral college because a State Assembly is dissolved.

 

Disputes Concerning Presidential Election (Impeachment proceeding & procedure)

 

All doubts and disputes arising in connection with the election of the President are to be decided by the Supreme Court whose decision is final (Article 71).

 

When one House thus prefers a charge, becomes incumbent on the other House to investigate the same. Investigation may be made either by the House itself or by some other agency as the House may direct; The President has the right to appear and be represented at such investigation [Article 61(3)].

 

If after investigation, the House passes a resolution by a majority of not less than 2/3 of its total membership declaring that the charge preferred against the President has been sustained, it would have the effect of removing the President from his office from the date on which the resolution is so passed [Article 61(4)]

 

The power to impeach might possibly be invoked in the event of the President acting independently of or contrary to ministerial advice, or for “treason, bribery or other high crimes or misdemeanours. Impeachment is a political instrument; what constitutes violation of the Constitution is a matter to be decided by the House which tries the charge and the House is essentially a political organ. There is no difficulty in the House interpreting the phrase violation of the Constitution in a wider sense and regard a violation of the conventions, usages and spirit of the Constitution as violation of the Constitution. When forms are maintained and the spirit is sapped away the Constitution is violated.

 

The idea of impeachment seems to have been borrowed from the U.S. Constitution. According to Art. II, section 4 of the U.S. Constitution, the President can be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes or misdemeanours.

 

Though the idea of impeachment has been borrowed from the U.S.A., it has been given an entirely new orientation in India, as will be clear from the following features:

 

i) The President in India can be impeached only for violation of the Constitution and not for any criminal offence.

 

ii) In India, impeachment can be tried by either of the two Houses of parliament, and not necessarily by the Upper House i.e., Rajya Sabha.

 

(iii) There is no provision for the Chief Justice of India to preside at such sitting of the House when the charge against the President is being investigated.

 

(iv) For conviction, in the U.S.A., votes of 2/3 of the member of the Senate present are needed. whereas, in India, votes of at least 2/3 of the total membership of the House is required. Therefore, in India, conviction on impeachment is more difficult.

 

Presidential Privileges

 

The ambit of the immunity is very extensive. No court can compel the President to exercise or not to exercise any power, or to perform or not to perform any duty, nor can a court issue any writ in respect of the president's official acts or omissions. He is not amenable to any mandate, writ or direction from any court. No court can compel him to show cause or defend his action. In the case of official acts, an absolute immunity from the process of the court is given to the President (Article 361)

 

The immunity extends to acts or omissions which may be incidental to, as well as to any act purporting to be done by the President, in the exercise and performance of the powers and duties of his office. The words “purporting to be done” are of very wide scope. Even though the act is outside, or in contravention of the Constitution, the President is protected as long as the act is professed to be done in pursuance of the Constitution. (Biman C. Bose Vs. H.C. Mookerjee, 56 CWN 651)

 

When any official act of the President is challenged on the ground of malafides, the immunity under Art. 361 extends to him and he cannot be called upon personally to defend himself against such an allegation. Nevertheless, the validity of the act can be questioned and the Government has to defend it.

 

Relationship of President with Council of Minister's (Prime Minister)

 

Article 74 and 75 which deal with the composition and status of the Council of Ministers are sketchy and very generally worded. The framers of the Indian Constitution left these matters undefined so that these may be regulated by practice and conventions. The conventions operating in Britain, where a similar pattern of government prevails, are very relevant to India and can be adapted suitably to meet the conditions prevailing here. The Supreme Court has emphasized upon the importance of conventions to Interpret these constitutional provisions in the following words.

 

It was said that we must interpret Article 73(3) according to its own terms regardless of conventions that prevail in the United Kingdom. If the words of a article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. But it must be remembered that we are interpreting a Constitution and not an Act of Parliament, a constitution which establishes a Parliamentary system of Government with a cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the constitution was framed.

 

According to Article 74(1), there shall be a Council of Minister with the Prime Minister at its head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

 

The provision that there shall be a Council of Ministers is mandatory and at no point of time can the President dispense with this body. The Council of Ministers remains in office even when the Lok Sabha is dissolved. The Supreme Court has refused to accept the contention in U.N.R. Rao that during the dissolution of the Lok Satiba, there need be no Council of Ministers and that the President can rule with the help of advisers.

 

This argument was based on the hypothesis that when there is no Lok Sabha, the responsibility of the Council of Ministers to this House cannot be enforced and so there need be no Council of Ministers when there is no House. The Supreme Court rejected the argument that, in the context, the word “shall” in Article 74(1) should be read as “must”. Just as Article 52 (“there shall be a President of India”) is mandatory so is Art. 74(1).

 

The Constituent Assembly did not choose the Presidential system of Government. Accepting the argument that Art. 74(1) is not mandatory would change the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise him in the exercise of his functions. In the absence of the Council of Ministers, nobody would be responsible to the Lok Sabha. The President would be able to rule with the aid of the advisor till he is impeached. Therefore, The Court ruled that the word “shall” in Art, 74(1) sought to be read as meaning “shall” and not “may”. Accordingly, the president cannot exercise the executive power without the aid and advice of the Council of Ministers. It is thus clear that the President cannot function without a council of Minister at any time.

 

It may be noted that the Supreme Court has emphasized upon the theme of responsible government in India in a number of cases. Ram Jawaya Vs. State of Punjab AIR 1955 SC 549. Thus, the Supreme Court has made a sterling contribution towards the promotion and strengthening of parliamentary system of government in the country.

 

What is the legal sanction behind the provision making ministerial advice binding on the President? Prima facie, the provision is cast in mandatory terms as the use of the word “shall” act in accordance with the advice of Council of Ministers would seem to indicate. But, legalistically speaking, the provision is at best merely of a directory nature because it legally enforceable through a count action.

 

No action can be brought against the President personally because of the ban placed on such legal action by Article 361. Further, according to Article 74(2), the courts are barred from enquiring into what advice, if any, has been given by the Ministers to the President. Whatever advice the Cabinet or a Minister has given to the President is confidential, and the courts can neither take any cognizance thereof nor enquire as to what advice has been given by the Ministers to the President. The courts are, therefore, helpless in the matter in view of this constitutional provision. Thus, the matter lies outside the purview of the courts and any relief through the courts in such a situation does not seem to be possible.

 

The only sanction behind the provision would thus seem to be political, and ultimately, there is the fear of impeachment of the President if he violates Article 74(1) on a crucial matter by not acting on ministerial advice. This may be regarded as “violation of the constitution” in terms of Art. 56(b). But, as has already been discussed above, impeachment is a very complicated and cumbersome procedure, and it can be resorted to only by a very strong government having 2/3^rd majority in one House and support of 2/3^rd of total membership in another House. The Constitution stipulates that to remove the President from office it is necessary to pass the motion by not less than 2/3^rd of the total member of the House.

 

For all these reasons, the only conclusion is that the part of Article 74(1) which makes the ministerial advice binding on the President is merely directory in nature. In Briain, it is a convention that the monarch acts on the advice of the Minister. In India, an attempt has been made to codify this convention, but, in effect, it still remains a convention, and does not become a legally enforceable injunction.

 

Non-Justiciability of Cabinet Advice.

 

The courts would be barred from embarking upon an inquiry as to whether any, and if so what, advice was tendered by the Council of Minister to the President, because of Art. 74(2), from inquiring, for example into the grounds which might have weighed with the Council of Ministers in advising the President to issue a proclamation under Article 356. State of Rajasthan Vs. Union of India, AIR 1977 SC 1361.

 

But the courts can compel production of the materials on which the decision of the Council of Ministers is based as such material does not form part of the advice. Therefore, the correspondence between the Chief Justice of India, the Chief Justice of the concerned High Court and the Central Government - which constitute the material forming the basis of the Central Government’s decision to continue or discontinue a High Court Judge-falls outside the exclusionary rule contained in Article 74(2).

 

The Supreme Court has further clarified the implications of Article 74(2) in S.R. Bommai Vs. Union of India AIR 1994 SC 1918. No court is concerned with what advice was tendered by the Minister to the President. The court is only concerned with the validity of the order and not with what happened in the inner councils of the President and the Minister. An order cannot be challenged on the ground that it is not in accordance with the advice tendered by the Minister or that it is based on no advice. If, in a given case, the President acts without or contrary to, the advice tendered to him, it may be a case warranting his impeachment, but so far as the court is concerned, it is the act of the President.

 

Art. 74(2) protects and preserves the secrecy of the deliberations between the President and the Council of Ministers. Its scope is limited. It does not immunize orders and acts done by the President in exercise of his functions. Art. 74(2) cannot override the basic provisions of the Constitution relating to judicial review. When any action taken by the President in exercise of his functions is challenged, it is for the Council of Ministers to justify the same, since the President acts under Art. 74(1).

 

Art. 74(2) does not mean that the Government need not justify the act of the President taken in exercise of his functions. When act or order of the President is questioned in a court, it is for the Council of Ministers to justify the same by disclosing the material which formed the basis of the act/order.

 

The court will not inquire whether such material formed part of the advice tendered to the president, or whether the material was placed before him of what advice was tendered to the President, what discussion took place between the President and the Minister and how was the ultimate decision arrived at. The court will only see what was the material on the basis of which the requisite satisfaction is formed and whether it is relevant to the action taken.

 

The court will not go into the correctness or adequacy of the material. The material placed before the president by a Minister does not become part of the advice. Advice is what is based upon the said material. Material is not advice. The material only because it was placed before the President in support of the advice does not become advice itself.

 

Conclusion

 

In conclusion, the President of India occupies a pivotal position in the country's governance structure, embodying the ideals of democracy, unity, and constitutionalism. Beyond its ceremonial aspects, the office carries significant responsibilities in ensuring the smooth functioning of the government and upholding the nation's democratic ethos. As India continues its journey towards progress and prosperity, the President remains a steadfast guardian of its democratic values and constitutional principles.

 

Frequently Asked Questions (FAQ)

1. Who is the first citizen of India?

 

Ans: President.

 

2. Which article of Indian Constitution for President of India?

 

Ans: Article 52.

 

3. The President of India is

 

Ans: Supreme Commander of Defence Force of the Union and Executive Head of the Union.

 

4. which article of the Constitution lays down that the President of India is Supreme Commander of the Defence Forces of the Country?

 

Ans: Article 53(2)

 

5. The President of India has the same constitutional authority as the Monarch of which country?

 

Ans: U.K.

 

6. which Articles of the Constitution lays the procedure for electing the President?

 

Ans: Article 54 and 55

 

7. Who administer the oath of office to the President?

 

Ans: Chief Justice of India (if the Chief Justice of India is not available, he takes the oath in presence of the senior most judge of Supreme Court)

 

8. Who can inquire all disputes regarding President’s election?

 

Ans: Supreme Court of India.

 

9. How many times can a person contest the election for the post of President of India?

 

Ans: No upper limits (mentioned in article 57)

 

10. The President can be impeached only on the ground of

 

Ans: Violation of the Constitution.

 

11. Minimum age required to contest for the post of President is

 

Ans: 35 years.