Chapter 3: Civics: The President and The Vice-President
On 3 May 1969, Dr Zakir Husain, the President of India, died in office. No President had died in office before. Yet the Constitution had already settled what would happen next, and it happened within hours. The Vice-President, V. V. Giri, was sworn in as Acting President the same day. That is the ordinary answer to an extraordinary morning. The office of Head of State cannot be left empty, not even for a day. But an Acting President is a stand-in, not a choice. The office still had to be filled by an election. Giri decided to contest that election. To do so, he resigned in July 1969. India now had neither a President nor a Vice-President in office. For that too there was an answer. Mohammad Hidayatullah, the Chief Justice of India, discharged the functions of President until the election was decided. In August 1969, Giri was elected President, and the Chief Justice went back to his court. In four months, three people carried out the duties of one office. On no day was there any doubt about who held it. That was not luck. It was design — worked out years earlier by people arguing over hard questions. What should a Head of State be allowed to do? Who should choose such a person? And what should happen when the chair falls empty?
Diagram
Fig. 3.0-1 Caption: Rashtrapati Bhavan in New Delhi is the official residence of the President of India. Brief: Photograph of the main front of Rashtrapati Bhavan; label the central dome and the forecourt; note in the label that the building was completed in 1929 as the Viceroy’s House and became the President’s residence in 1950.
3.1 The President As Head Of State
Every state needs someone in whose name it acts. Treaties are signed by somebody, orders are issued by somebody, and armies obey somebody. The Constitution gives that place to the President of India.
The word matters less than the design behind it. The executive is the branch of government that carries out the law, as against the legislature that makes it and the judiciary that interprets it. At the Union level, that branch is headed by the President.
The Union executive is not one person. It consists of the President, the Vice-President, and the Prime Minister with the Council of Ministers, who are the ministers responsible for running the departments of government. This chapter deals with the first two.
3.1.1 Where The Executive Power Lies
The Constitution vests the executive power of the Union in the President. The President exercises it either directly, or through officers who are subordinate to the President, in accordance with the Constitution.
That single sentence covers a very large amount of daily work. Orders appointing officials, notifications bringing laws into force, and instructions to the armed forces all go out in the President’s name. The President is also the supreme commander of the Defence Forces of India.
Reading only that far, a student would picture a ruler. The next provision changes the picture completely.
The Constitution also says that there shall be a Council of Ministers, with the Prime Minister at its head, to aid and advise the President. The 42nd Amendment made that advice binding: the President acts in accordance with it. The 44th Amendment added one qualification, which is that the President may send the advice back once for reconsideration, and must then act on the advice as it returns.
So the power is the President’s in law, and the decision is the ministry’s in fact. The two are held together by a rule: the President acts, but on advice.
3.1.2 Head Of State And Head Of Government
India separates two roles that many countries combine. The Head of State represents the whole country and stands above party politics. The Head of Government leads the party or coalition that has won, and takes the decisions the country will be governed by.
In India the President is the Head of State, and the Prime Minister is the Head of Government. For this reason the President is often called the nominal head — the head in whose name government is carried on — while the Prime Minister and the Council of Ministers are the real executive, the people who actually decide.
‘Nominal’ is a misleading word if it is read as ‘unimportant’. A nominal head is not a decoration.
What The Separation Buys
Governments change. Parties lose elections, coalitions break, and a Prime Minister may resign in the middle of a term. Through all of it the state must continue to exist, sign, command and appoint.
By putting continuity in one office and policy in another, the Constitution allows a government to fall without the state falling with it. The person who lost the election hands over to the person who won, and the office that received both of them stays where it was.
There is a cost, and it is worth naming. A President who represents the whole nation is not chosen by the whole nation directly, and a Prime Minister who takes the real decisions is nowhere described in the Constitution as the head of the executive. The design gains stability and gives up neatness.
3.2 Election Of The President
The President of India is not chosen by the voters at a polling booth. The President is chosen by people whom the voters have already elected. An indirect election is one in which the electorate chooses representatives, and those representatives then choose the office-holder.
This was a deliberate choice, and it was argued over at length before it was made. To see why, it helps to look first at who may stand, and then at who may vote.
3.2.1 Qualifications For Election
A person is eligible for election as President only if that person —
- is a citizen of India;
- has completed thirty-five years of age; and
- is qualified for election as a member of the Lok Sabha.
The third condition quietly imports a whole list. Anyone who could not stand for the Lok Sabha — because of unsound mind, insolvency, or a disqualification under law — cannot stand for the Presidency either.
A fourth condition is stated separately. A candidate must not hold any office of profit under the Government of India, the government of any State, or any local or other authority under their control. An office of profit is a post under a government that carries pay or material benefit.
The purpose is plain. A person who draws a salary from the government of the day should not be competing for the office that appoints that government.
The Constitution then adds an exception that prevents the rule from becoming absurd. A person is not treated as holding an office of profit merely by being the President, the Vice-President, the Governor of a State, or a Minister of the Union or of a State. Without this exception a sitting President could not stand again — and a President who has held the office is eligible for re-election.
Getting On To The Ballot
Qualification is not the same as candidature. A presidential candidate must be proposed by fifty electors and seconded by fifty others, all of them members of the electoral college, and must make a security deposit. Until 1997 only ten proposers and ten seconders were needed.
The change was made for a reason worth noticing. A very light requirement had produced long lists of candidates with no serious support, and a heavier one keeps the contest to those who can gather at least a hundred elected members behind them.
3.2.2 Composition Of The Electoral College
The President is elected by an electoral college, which is the specific body of electors created to elect a particular office-holder. For the President it consists of —
- the elected members of both Houses of Parliament; and
- the elected members of the Legislative Assemblies of the States, and of the National Capital Territory of Delhi and the Union Territory of Puducherry.
A Union Territory without a Legislative Assembly of its own has no voice in this election, because it has no elected Assembly to send.
Two exclusions matter more than they look. The nominated members of the Rajya Sabha, and the nominated members of State Assemblies, do not vote. Neither do the members of the State Legislative Councils, the second chambers that exist in some States.
The principle behind both exclusions is the same. The President is to be chosen by people whom the voters themselves put in place, and nominated members were put in place by someone else.
We can now set out the whole chain in one picture.
Diagram
Fig. 3.2-1 Caption: The voters elect the members who elect the President. Brief: A two-tier chart. Bottom row, a single wide box labelled ‘The people of India’. Two upward arrows labelled ‘elect’ leading to a middle row of two boxes: ‘Elected members of Lok Sabha and Rajya Sabha’ and ‘Elected members of State and eligible UT Legislative Assemblies’. Both boxes enclosed in a bracket labelled ‘Electoral College’. One upward arrow from the bracket, labelled ‘elect’, to a top box, ‘President of India’. Show nominated members as a small greyed box outside the bracket, labelled ‘no vote’.
The diagram shows a route, and it shows it accurately. What it cannot show is weight. The two tiers of the electoral college do not simply add up; the votes are counted in a way that keeps the States as a whole and the Union Parliament in balance, and that gives a member from a populous State a heavier vote than one from a small State.
That balancing is worked out by formula at every election, and you are not required to calculate it. What matters here is why it exists: a President elected by Parliament alone would owe nothing to the States, and a President elected by the States alone would owe nothing to the Union.
How The Votes Are Cast
The election is held by proportional representation by means of the single transferable vote, and the voting is by secret ballot. In plain terms, an elector ranks the candidates in order of preference rather than marking a single cross, and lower preferences are brought into play if no candidate has a majority at the start.
Secrecy applies to the elector as much as to the citizen. A member of a legislature votes without any party being able to check the ballot afterwards.
Any dispute about the election of the President is decided by the Supreme Court, and by no other body.
3.2.3 Reasons For Indirect Election
The Constituent Assembly could have chosen direct election. It considered it, and rejected it for reasons that follow from the design set out in section 3.1.
A directly elected President would be a rival centre of power. Having been chosen by the whole electorate, such a President could claim a mandate of their own and refuse ministerial advice. That would cut against the parliamentary system, in which the ministers answer to the Lok Sabha for every act done in the President’s name.
The claim would not match the powers. The President does not govern, and a nationwide contest would raise expectations that the office is not built to satisfy.
Election by Parliament alone would have been worse. The Houses are usually dominated by one party or coalition, so a President elected by a simple parliamentary majority would be that party’s nominee, much as the Prime Minister is. Such a President could not stand apart from the government, and would not represent the States at all.
An electoral college of MPs and MLAs answers both objections. The President becomes the representative of the whole nation, chosen through the people’s own representatives, with the States given a clear voice alongside the Union.
There is an honest objection to record. Indirect election makes the President the choice of legislators, and a party or alliance that controls enough legislatures can decide the outcome well before polling day.
3.3 Term Of Office And Impeachment
An office that stands for continuity must have a fixed life and a hard exit. If a President could be removed whenever the ministry was displeased, the office would stop being a steady point in the system. If a President could never be removed at all, the office would stand outside the Constitution it exists to defend.
The Constitution answers both dangers in the same place. It fixes a term, and it allows removal on one ground only, by a procedure that is difficult on purpose.
3.3.1 Term Of Office
The President holds office for a term of five years from the date of entering upon office. A person who has held the office may be elected to it again.
The term does not end with the calendar. Even after the five years expire, the President continues in office until the successor enters upon office. This single clause is what prevents a gap between two Presidents, however delayed an election may be.
An office may still fall vacant early — by death, by resignation, or by removal. A President who wishes to resign addresses the resignation to the Vice-President, who communicates it to the Speaker of the Lok Sabha.
Where the office falls vacant before the term ends, an election must be held to fill it as soon as possible, and in any case within six months. The person then elected serves a fresh full term of five years, and not merely the remainder of the predecessor’s term.
3.3.2 Procedure For Impeachment
Impeachment is the formal process by which a legislature itself tries and removes a high constitutional office-holder. In India it is the only way a President can be removed, and it lies on one ground alone: violation of the Constitution.
That single ground is narrow, and deliberately so. A President cannot be removed for being unpopular, for being ineffective, or for disagreeing with the government of the day.
The procedure runs in two stages, and each stage is a genuine obstacle. Either House may begin; the other House then investigates what the first has charged.
The charge is moved as a resolution, after at least fourteen days’ notice in writing, signed by not less than one-fourth of the total number of members of that House. For the resolution to pass, it must be supported by a majority of not less than two-thirds of the total membership of the House — not two-thirds of those present, but two-thirds of every seat in it.
If it passes, the other House investigates the charge. The President has the right to appear at the investigation and to be represented there, which makes this stage a trial and not merely a vote.
The investigating House then votes on a resolution declaring the charge sustained. If that resolution too is passed by not less than two-thirds of the total membership, the President stands removed from office from the date the resolution is passed.
Flowchart
FC 3.1 — How A President Is Impeached Caption: The procedure by which either House of Parliament may charge, try and remove the President for violation of the Constitution. Nodes: Charge of violating the Constitution prepared in either House → notice in writing signed by not less than one-fourth of that House’s total membership, given at least fourteen days in advance → resolution moved in that House → if it fails to secure two-thirds of the total membership, the process ends and the President continues in office → if passed, the charge goes to the other House → that House investigates the charge; the President may appear and be represented → resolution declaring the charge sustained is put to vote → if it fails to secure two-thirds of that House’s total membership, the President continues in office → if passed, the President is removed from office from the date of the resolution.
Notice what the flowchart does not show, because no procedure can. Two-thirds of the total membership of both Houses is a threshold no single party has crossed alone in ordinary times; impeachment therefore needs agreement across parties. That is a political condition, not a legal one, and it does more to protect the office than any clause does.
Who Votes On A Removal
One detail is easy to miss, and it repays attention. Impeachment is voted on by the members of each House — all of them, including the nominated members of the Rajya Sabha.
Those same nominated members had no vote when the President was elected. The Constitution treats the two acts differently: choosing a Head of State is a task for the people’s elected representatives, while trying one is a task for the House as a whole.
No President of India has been impeached.
3.4 Powers Of The President
The powers of the President are usually studied as five headings, and that is how they are set out below. Before reading them, hold on to the rule established in section 3.1: almost every one of these powers is exercised on the advice of the Council of Ministers.
The list is therefore not a list of what one person decides. It is a list of what the Union may lawfully do, and of the office through which it does it. The last heading, discretion, is where that changes.
3.4.1 Executive Powers
All executive action of the Union Government is taken in the name of the President, and the officials of the Union work under the President’s authority. An order signed by a secretary in a ministry carries force because it is issued in the President’s name.
The most visible executive power is the power to appoint. The President appoints —
- the Prime Minister, and the other Ministers on the Prime Minister’s advice;
- the Chief Justice of India and the other Judges of the Supreme Court and of the High Courts;
- the Governors of the States, and the administrators of the Union Territories;
- the Attorney General of India;
- the Comptroller and Auditor General of India;
- the Chief Election Commissioner and the other Election Commissioners; and
- the Chairman and members of the Union Public Service Commission.
Two names in that list may be new. The Attorney General is the Union Government’s chief legal adviser, who appears for it in the courts. The Comptroller and Auditor General audits the accounts of the Union and the States, and reports to the legislature on how public money was actually spent.
The administration of the Union Territories, and of areas that Parliament has placed directly under the Union, is also the President’s responsibility. The President may further require the Prime Minister to furnish information about the administration and about proposals for legislation — a small provision that keeps the office informed rather than merely ceremonial.
Military And Diplomatic Powers
The President is the supreme commander of the Defence Forces of India, and appoints the chiefs of the three services. Declarations of war and of peace are made in the President’s name, and rest on the advice of the Council of Ministers. Parliament regulates the exercise of this power by law.
In dealings with other countries, the President appoints India’s ambassadors and high commissioners, and receives the envoys sent to India by other states. Treaties and international agreements are negotiated and concluded in the President’s name, subject to Parliament’s power to legislate on them.
3.4.2 Legislative Powers
Parliament is not only the two Houses. It consists of the President and the Lok Sabha and the Rajya Sabha together, which is why a Bill is not law until the President has acted on it.
The legislative powers fall into a few groups.
Summoning and ending sessions. The President summons each House, prorogues it — that is, brings a session formally to a close — and may dissolve the Lok Sabha before its term ends. The Rajya Sabha is a permanent body and is never dissolved. Six months is the longest gap permitted between two sessions of the same House.
Addressing Parliament. The President addresses both Houses assembled together at the first session after each general election to the Lok Sabha, and at the first session of every year. This address sets out the government’s policy. The President may also send messages to either House about a pending Bill or any other matter.
Nomination. The President nominates twelve members to the Rajya Sabha from persons with special knowledge or practical experience in literature, science, art and social service.
Prior recommendation. Certain Bills cannot even be introduced without the President’s recommendation, including a Bill to form a new State or alter the boundaries of an existing one.
Assent to Bills. Every Bill passed by both Houses goes to the President, who may assent, withhold assent, or — if it is not a Money Bill — return it for reconsideration.
We can set out the last of these as a procedure, because the branches decide what the power is worth.
Flowchart
FC 3.2 — What Happens When A Bill Reaches The President Caption: The choices open to the President after both Houses of Parliament have passed a Bill. Nodes: Bill passed by both Houses → presented to the President for assent → President gives assent and the Bill becomes an Act → or President withholds assent and the Bill does not become law → or, if the Bill is not a Money Bill, the President returns it with a message asking the Houses to reconsider it as a whole or in part → the Houses reconsider the Bill → if they pass it again, with or without amendments, it is presented once more → the President must then give assent.
The flowchart shows a power that shrinks the second time it is used. A returned Bill that comes back unchanged must be signed, so the President can delay Parliament and can argue with it, but cannot overrule it.
What the flowchart cannot show is time. No clause fixes how long the President may take before doing any of these things, and a Bill on which no decision is taken simply waits.
A different chain applies to State legislation. A Governor may reserve certain Bills passed by a State Legislature for the President’s consideration, and the President may then assent, withhold assent, or direct the Governor to return the Bill to the State Legislature.
The Power To Make Law Without Parliament
An ordinance is a law made by the President when Parliament is not sitting, and it has the same force as an Act of Parliament while it lasts.
The conditions are strict. Both Houses, or one of them, must not be in session; the President must be satisfied that circumstances make immediate action necessary; and the ordinance must be laid before both Houses when they reassemble. It ceases to operate six weeks after reassembly unless Parliament approves it, and it may be withdrawn at any time.
3.4.3 Financial Powers
Public money is the area where Parliament, not the executive, is meant to have the last word. The President’s financial powers are mostly gatekeeping powers that keep spending proposals orderly.
A Money Bill — a Bill dealing only with taxes, borrowing, or money paid into or out of the Consolidated Fund of India — can be introduced in the Lok Sabha only on the President’s recommendation.
The Annual Financial Statement, commonly called the Budget, is laid before both Houses on the President’s behalf at the start of every financial year. It sets out the estimated income and expenditure of the Union for the coming year.
No demand for a grant may be made except on the President’s recommendation, so Parliament cannot vote money the government has not asked for.
The President may authorise advances from the Contingency Fund of India, a reserve kept for expenditure that could not be foreseen. Parliament must approve such spending afterwards.
The President appoints a Finance Commission every five years, which recommends how revenues should be shared between the Union and the States.
Read together, these powers place the executive in charge of proposing and Parliament in charge of allowing. Neither can spend without the other.
3.4.4 Judicial Powers
The President appoints the judges of the Supreme Court and the High Courts, and may ask the Supreme Court for its opinion on a question of law or fact of public importance. Such an opinion is advice; the Court’s answer does not bind the government.
The President also enjoys personal immunity while in office. The President is not answerable to any court for the exercise of the powers and duties of the office, and no criminal proceedings may be begun against a President during the term.
The most substantial judicial power is the power of mercy. The President may grant a pardon, which wipes out both the conviction and the sentence, and may also grant reprieves, respites and remissions of punishment, or suspend, remit or commute a sentence.
Those words are not interchangeable, and each does a different thing.
- A reprieve delays a sentence for a time, usually so that mercy can be considered.
- A respite awards a lesser sentence because of special circumstances of the convicted person.
- A remission reduces the amount of a sentence without changing its character.
- To commute a sentence is to replace it with a lighter kind — a death sentence by imprisonment, for example.
This power extends to (a) all cases where the punishment is by a court martial, which is a military court trying members of the armed forces; (b) all cases where the offence is against a law relating to a matter within the Union’s executive power; and (c) all cases where the sentence is a sentence of death.
The last of these is the important one. Whatever court has passed a death sentence, and whatever State it sits in, the President may spare the life. The power exists precisely because a legal system that is working correctly can still produce an outcome that ought to be softened.
3.4.5 Discretionary Powers
A discretionary power is one the President may exercise on personal judgement, without being bound by ministerial advice. These situations are few, and nearly all of them arise when the ordinary machinery has failed to produce a clear answer.
Appointing a Prime Minister when no party or alliance commands a clear majority in the Lok Sabha. The President must decide whom to invite to form a government, and may require that person to prove a majority on the floor of the House.
Appointing a Prime Minister when the incumbent dies in office and the ruling party has not yet chosen a successor. There is, for that moment, nobody whose advice the President could act on.
Deciding what to do when a Prime Minister who has lost majority support advises dissolution of the Lok Sabha. The President may accept the advice, or may instead invite another leader to test their strength in the House.
Returning ministerial advice once for reconsideration. This is a real power to make a government think again, though the President must act on the advice when it comes back.
Dismissing a Council of Ministers that has plainly lost the confidence of the Lok Sabha and refuses to resign.
There is a pattern here worth naming. The President’s discretion appears exactly where the elected majority has broken down, and disappears the moment a stable majority exists.
3.5 Emergency Powers Of The President
A constitution built only for normal times will break in abnormal ones. War, the collapse of a State government, or a threat to the country’s financial credit cannot be met by the ordinary machinery working at its ordinary pace.
The framers therefore did something risky and deliberate. They wrote the crisis into the Constitution itself, so that extraordinary power would be exercised under rules rather than outside them.
Three kinds of emergency are provided for, and they are not variations of one thing. They differ in what triggers them, in where they apply, and in what they do.
3.5.1 National Emergency
The President may proclaim a National Emergency on being satisfied that a grave emergency exists, by which the security of India or of any part of its territory is threatened by war, by external aggression, or by armed rebellion.
The proclamation cannot be made on the President’s own initiative. It requires the written recommendation of the Union Cabinet, so that responsibility for it is fixed on the ministry that must answer to Parliament.
Parliament then holds the switch. The proclamation must be approved by both Houses within one month by a special majority — a majority of the total membership of the House, together with two-thirds of the members present and voting. Once approved it runs for six months at a time, and lapses unless renewed. The Lok Sabha may at any time pass a resolution disapproving it, and the proclamation must then be revoked.
Two effects of a National Emergency stand out above the rest.
The enforcement of Fundamental Rights may be suspended. The President may suspend a citizen’s right to move the courts for the enforcement of those rights, though the protections against conviction under retrospective law and against loss of life or personal liberty except by procedure established by law cannot be taken away.
The Union gains control over the States. The Union may give directions to a State on any matter, and Parliament may make laws on subjects reserved to the States. For as long as the proclamation lasts, a federal system operates very much like a unitary one.
A National Emergency has been proclaimed three times: in 1962, during the conflict on the northern border; in 1971, during the war with Pakistan; and in 1975, on the ground of internal disturbance.
3.5.2 Breakdown Of Constitutional Machinery
The second kind of emergency operates in a single State. If the President, on receiving a report from the Governor of a State or otherwise, is satisfied that the government of that State cannot be carried on in accordance with the provisions of the Constitution, the President may proclaim an emergency in that State.
This is commonly called President’s Rule, because the President may assume to himself all or any of the functions of the State Government and the powers of the Governor.
The proclamation must be approved by both Houses of Parliament within two months. Once approved, it remains in force for six months at a time and may be extended, but not beyond three years in all. Extension beyond one year is possible only if a National Emergency is in operation in the State, and the Election Commission certifies that elections to the State Assembly cannot be held.
Two effects of this emergency stand out above the rest.
The State’s own executive is displaced. The Council of Ministers is dismissed, and the State is administered by the Governor under the Union Government’s directions. The Legislative Assembly is either dissolved or kept in suspended animation, which means it survives on paper without meeting.
Parliament takes over the State’s law-making. Parliament may make laws for that State on subjects in the State List, and the State’s Budget is presented to and passed by Parliament.
One limit is worth noting, because it marks where even this power stops. The President may suspend provisions relating to any authority in the State, but not those relating to the High Courts.
3.5.3 Financial Emergency
The third kind has never been used. The President may proclaim a Financial Emergency on being satisfied that a situation has arisen by which the financial stability or credit of India, or of any part of its territory, is threatened.
Such a proclamation must be approved by both Houses within two months. No maximum period is fixed; it continues until it is revoked.
Two effects of a Financial Emergency stand out above the rest.
The Union may direct the States on their finances. It may require a State to observe standards of financial propriety, and may require all Money Bills and other financial Bills passed by a State Legislature to be reserved for the President’s consideration.
Salaries may be cut. The Union may direct a reduction in the salaries and allowances of persons serving the Union or a State, including the Judges of the Supreme Court and the High Courts.
The second effect explains why the power is so carefully hedged. A government that can reduce the pay of judges has been handed a lever over the one branch that is meant to be able to check it.
The Three Compared
The three emergencies share a shape — a proclamation by the President, an approval by Parliament, a shift of power toward the Union — but they answer to different dangers, and the differences matter more than the resemblance.
3.6 The Vice-President
The Constitution creates a Vice-President of India. It then gives that office a curious shape: an ordinary working job in the legislature, and a reserve role in the executive that may never be needed at all.
Both halves are worth taking seriously. The reserve role explains why the office exists; the working job explains what it does on almost every day of a five-year term.
3.6.1 Qualifications For Election
A person is eligible for election as Vice-President only if that person —
- is a citizen of India;
- has completed thirty-five years of age; and
- is qualified for election as a member of the Rajya Sabha.
The third condition is the one that differs from the Presidency. A President must be qualified for the Lok Sabha; a Vice-President must be qualified for the Rajya Sabha, because the Rajya Sabha is the House the Vice-President will preside over.
As with the President, a candidate must not hold any office of profit under the Union, a State, or an authority under their control. The same exception applies: holding office as President, Vice-President, Governor, or a Minister of the Union or a State does not count.
The Vice-President is elected by an electoral college consisting of the members of both Houses of Parliament, voting by proportional representation through the single transferable vote, by secret ballot. Two features of this list repay a second look.
The State Assemblies have no part in it, because the Vice-President is chosen to preside over a House of the Union Parliament and not to represent the States. The nominated members of the Rajya Sabha, on the other hand, do vote — they are full members of the House whose Chairman is being chosen.
A nomination must be proposed by twenty electors and seconded by twenty others.
3.6.2 Term Of Office And Removal
The Vice-President holds office for a term of five years from the date of entering upon office, and may be elected again. As with the President, the term does not simply stop: the Vice-President continues in office until a successor enters upon office.
The office may end early in three ways. The Vice-President may resign by writing addressed to the President, who communicates the resignation to the Speaker of the Lok Sabha. The office ends on death. And the Vice-President may be removed.
Removal follows a procedure of its own, and it is not the procedure used for the President. A resolution is moved in the Rajya Sabha, after at least fourteen days’ notice, and must be passed by a majority of all the then members of that House. The Lok Sabha must then agree to it.
Two points follow from this, and both are easy to get wrong. The removal begins in the Rajya Sabha only, because that is the House the Vice-President presides over. And the Constitution names no ground for it — unlike the President, who can be removed only for violation of the Constitution.
Flowchart
FC 3.3 — How A Vice-President Is Removed Caption: The procedure by which Parliament may remove the Vice-President from office. Nodes: Resolution for removal prepared in the Rajya Sabha → at least fourteen days’ notice of the intention to move it → resolution moved in the Rajya Sabha → if it fails to secure a majority of all the then members of that House, the process ends and the Vice-President continues in office → if passed, the resolution goes to the Lok Sabha → if the Lok Sabha does not agree to it, the Vice-President continues in office → if the Lok Sabha agrees, the Vice-President is removed from office.
3.6.3 Powers And Functions
The Vice-President’s powers come from two entirely separate offices held by the same person.
Chairman Of The Rajya Sabha
The Vice-President is the ex officio Chairman of the Rajya Sabha — ‘ex officio’ meaning by virtue of holding another office, and not by any separate appointment. This is the daily work of the office.
In that capacity the Chairman regulates the debates and proceedings of the House, decides the order in which members speak, and rules on whether a question or a resolution is admissible. The Chairman maintains order, and may suspend or adjourn the business of the House in case of grave disorder.
The Chairman is not a member of the Rajya Sabha and does not vote in the ordinary way. Where the votes on a question are equal, however, the Chairman gives a casting vote to decide it.
The Vice-President draws a salary in the capacity of Chairman of the Rajya Sabha. When the Chairman is absent, the Deputy Chairman, who is elected by the members of the Rajya Sabha from among themselves, presides over the House.
Acting As President
The second role is the reserve one. The Vice-President takes over the office of the President in these situations —
- the death of the President;
- the resignation of the President;
- the removal of the President; or
- the President’s inability to discharge the functions of the office, owing to absence, illness or any other cause.
The first three are vacancies, and the fourth is not. Where the office has fallen vacant, the Vice-President acts as President until a new President is elected, which must happen within six months. Where the President is merely unable to function for a time, the Vice-President discharges the President’s functions until the President resumes them.
One limit defines the whole arrangement. The Vice-President does not become the President. Even after acting in the office for months, the Vice-President has no claim on the remaining term, and must be elected in the ordinary way to hold it. This differs from the practice in the United States, where the Vice-President succeeds to the office for the rest of the term.
While acting as President, the Vice-President exercises the President’s powers and receives the President’s emoluments, and does not preside over the Rajya Sabha.
3.7 Summary
- The executive power of the Union is vested in the President, who exercises it directly or through subordinate officers, and who is the supreme commander of the Defence Forces of India.
- That power is exercised on the aid and advice of the Council of Ministers headed by the Prime Minister. The 42nd Amendment made the advice binding, and the 44th Amendment allowed the President to return it once for reconsideration before acting on it.
- India separates the Head of State from the Head of Government. The President is the nominal head, in whose name government is carried on; the Prime Minister and the Council of Ministers are the real executive. The gain is continuity — a government may fall without the state falling with it.
- A person is eligible for election as President only if that person is a citizen of India, has completed thirty-five years of age, and is qualified for election to the Lok Sabha. A candidate must not hold an office of profit, though holding office as President, Vice-President, Governor or Minister does not count as one. A President is eligible for re-election.
- The President is elected indirectly, by an electoral college consisting of:
- the elected members of both Houses of Parliament; and
- the elected members of the Legislative Assemblies of the States and of the National Capital Territory of Delhi and the Union Territory of Puducherry. Nominated members do not vote, because the President is to be chosen by representatives whom the voters themselves elected. The election is by proportional representation through the single transferable vote, by secret ballot, and disputes about it are decided by the Supreme Court.
- Indirect election was chosen for reasons of design, not convenience:
- a directly elected President could claim a popular mandate and become a rival to the ministers who actually govern;
- election by Parliament alone would have made the President the ruling party’s nominee, with no voice for the States; and
- an electoral college of MPs and MLAs makes the President the representative of the whole nation, with the Union and the States both weighing in.
- The President holds office for five years, and continues in office until the successor enters upon office. A resignation is addressed to the Vice-President. A vacancy must be filled within six months, and the person then elected serves a fresh full term.
- A President can be removed only by impeachment, and only for violation of the Constitution. Either House may prefer the charge, on fourteen days’ notice signed by one-fourth of its total membership and passed by two-thirds of that membership; the other House then investigates, with the President entitled to appear, and removal follows if it too passes the resolution by two-thirds of its total membership.
- The President’s powers fall under five heads, nearly all exercised on ministerial advice:
- executive — all Union action is taken in the President’s name; appointments of the Prime Minister and Ministers, judges, Governors, the Attorney General, the Comptroller and Auditor General, the Election Commissioners and the Union Public Service Commission; command of the armed forces; and the appointment and reception of diplomats;
- legislative — summoning, proroguing and dissolving; the address to both Houses; nomination of twelve members to the Rajya Sabha; assent to Bills; and the power to promulgate ordinances when Parliament is not in session;
- financial — recommendation for Money Bills and demands for grants, the laying of the Budget, advances from the Contingency Fund, and appointment of a Finance Commission every five years;
- judicial — appointment of judges, immunity from court proceedings while in office, and the power to grant pardons, reprieves, respites and remissions, and to commute sentences, including in every case of a death sentence; and
- discretionary — the narrow set of decisions the President makes personally.
- A Bill passed by both Houses may be assented to, withheld, or, if it is not a Money Bill, returned once for reconsideration; if the Houses pass it again, the President must assent. An ordinance has the force of an Act but lapses six weeks after Parliament reassembles unless approved.
- Discretion appears exactly where the elected majority has broken down — choosing a Prime Minister in a hung House or on the sudden death of an incumbent, deciding whether to dissolve the Lok Sabha on the advice of a Prime Minister who has lost majority support, returning advice for reconsideration, and dismissing a ministry that has lost the House but will not resign.
- Three kinds of emergency are provided for:
- a National Emergency, on the ground of war, external aggression or armed rebellion, which suspends the enforcement of Fundamental Rights and lets the Union direct the States and legislate on State subjects;
- a breakdown of constitutional machinery in a State, or President’s Rule, which displaces the State’s Council of Ministers and transfers the State’s law-making to Parliament; and
- a Financial Emergency, which lets the Union direct the States on financial propriety and reserve their financial Bills, and direct reductions in the salaries of those serving the Union or a State, including judges.
- Every emergency requires parliamentary approval, and the safeguards that now hedge them — the written Cabinet recommendation, the narrowed grounds, the six-month renewal — were added after experience showed how long a proclamation can outlive the crisis that produced it.
- The Vice-President must be a citizen of India, have completed thirty-five years of age, and be qualified for election to the Rajya Sabha, and is elected by the members of both Houses of Parliament. The term is five years, and removal begins with a resolution passed by a majority of all the then members of the Rajya Sabha, with which the Lok Sabha must agree.
- The Vice-President is the ex officio Chairman of the Rajya Sabha, regulating its proceedings and holding a casting vote, and takes over the President’s office on a vacancy or during the President’s inability to act. The Vice-President acts as President until a new President is elected, but never succeeds to the remainder of the term.
The Idea In One Place
The Presidency exists to give the Indian state a single, continuous head — someone in whose name every executive act is done, who appoints the government the voters have produced, and who is still there when that government falls.
To keep such an office from becoming a rival to elected ministers, the Constitution gave it authority without giving it a popular mandate: indirect election, binding advice, and removal only for violating the Constitution.
The result is an office that is powerful on paper and restrained in practice, except at two moments — when no majority is clear, and when an emergency has been proclaimed.
The open question is the one the emergency provisions raise. How much extraordinary power can a constitution store inside itself before the storage becomes the danger it was meant to guard against?
3.8 Key Terms
- Discretionary power: A power the President may exercise on personal judgement, without being bound by the advice of the Council of Ministers.
- Electoral college: The particular body of electors created to elect a particular office-holder, such as the MPs and MLAs who elect the President.
- Executive: The branch of government that carries out the law, as distinct from the legislature that makes it and the judiciary that interprets it.
- Head of Government: The person who leads the party or coalition in power and takes the decisions by which the country is governed; in India, the Prime Minister.
- Head of State: The person who represents the country as a whole and stands above party politics; in India, the President.
- Impeachment: The formal process by which a legislature itself tries and removes a high constitutional office-holder; for the President, the only ground is violation of the Constitution.
- Indirect election: An election in which the voters choose representatives, and those representatives then choose the office-holder.
- Nominal head: The head in whose name government is carried on, but who does not take the governing decisions.
- Office of profit: A post under a government that carries pay or material benefit, the holding of which disqualifies a person from election as President or Vice-President.
- Ordinance: A law made by the President when Parliament is not in session, having the force of an Act but lapsing six weeks after Parliament reassembles unless approved.
- Pardon: An act of mercy by the President that wipes out both the conviction and the sentence of a convicted person.
- President’s Rule: The emergency in a State under which the President assumes the functions of the State Government because it cannot be carried on in accordance with the Constitution.
- Real executive: The Prime Minister and the Council of Ministers, who actually take the decisions that are issued in the President’s name.
3.9 Points to Ponder
If almost every act of the President is done on the advice of ministers, why does the Constitution take the trouble to vest the executive power of the Union in the President at all?
Nominated members may not vote to elect a President, but they may vote to remove one. What does that difference suggest about how the Constitution understands the two acts?
No clause fixes how long a President may take before assenting to a Bill, returning it, or acting on advice. Is that silence a gap in the text, or a space deliberately left for judgement?
The President’s discretion appears only when no clear majority exists in the Lok Sabha, and disappears the moment one does. Is a power that exists only in a breakdown a real power?
A Financial Emergency allows the salaries of judges of the Supreme Court and the High Courts to be reduced. What does that provision tell you about how far a written constitution can protect the independence of a branch of government?
A President may be removed only for ‘violation of the Constitution’, and the Constitution nowhere says what those words mean. If Parliament alone must decide their meaning, is the ground a legal limit or a political one?
3.10 Objective Questions
The electoral college that elects the President of India consists of — [1 mark]
- all the members of both Houses of Parliament and all the members of the State Legislative Assemblies
- the elected members of both Houses of Parliament and the elected members of the State and eligible Union Territory Legislative Assemblies
- the elected members of the Lok Sabha and of the State Legislative Assemblies only
- the members of both Houses of Parliament and of the State Legislative Councils
An ordinance promulgated by the President ceases to operate — [1 mark]
- six weeks after Parliament reassembles, unless it is approved by both Houses
- six months from the date on which it was promulgated
- on the day Parliament reassembles, in every case
- only when the President chooses to withdraw it
Read the Assertion (A) and the Reason (R) and select the correct option. [1 mark] A: The President of India is described as the nominal head of the Union executive. R: The Constitution vests the executive power of the Union in the Prime Minister.
- Both A and R are true, and R is the correct explanation of A.
- Both A and R are true, but R is not the correct explanation of A.
- A is true, but R is false.
- A is false, but R is true.
Read the Assertion (A) and the Reason (R) and select the correct option. [1 mark] A: The nominated members of the Rajya Sabha take no part in the election of the President. R: The President is to be chosen by representatives whom the voters have themselves elected.
- Both A and R are true, and R is the correct explanation of A.
- Both A and R are true, but R is not the correct explanation of A.
- A is true, but R is false.
- A is false, but R is true.
Fill in the blank: The President of India may be removed from office only on the ground of __________ . [1 mark]
State whether the following statement is true or false: When the office of President falls vacant, the Vice-President becomes the President for the remainder of that term. [1 mark]
Match the terms in Column A with their meanings in Column B. [1 mark]
| Column A | Column B |
|---|---|
| a. Reprieve | i. Replacing a sentence with one of a lighter kind |
| b. Commutation | ii. Wiping out both the conviction and the sentence |
| c. Remission | iii. Delaying a sentence for a time |
| d. Pardon | iv. Reducing the length of a sentence without changing its character |
3.11 Check Your Concepts
What is meant by an office of profit? Why is a person holding one not eligible for election as President? [2 marks]
State any two qualifications a person must possess to be eligible for election as Vice-President of India. [2 marks]
Give reasons why the nominated members of the Rajya Sabha and of the State Legislative Assemblies take no part in the election of the President. [3 marks]
Differentiate between the Head of State and the Head of Government, with reference to India. [3 marks]
Trace what happens to an ordinary Bill from the moment it is presented to the President until it becomes an Act, showing clearly what follows if the President returns it to the Houses. [4 marks]
Explain, with an example of the kind of situation in which it arises, any two discretionary powers of the President of India. [4 marks]
Explain three reasons for which the makers of the Constitution chose to have the President elected indirectly rather than by the voters directly. [5 marks]
Describe the procedure for the impeachment of the President of India, and explain why the majorities the Constitution requires make removal so difficult to achieve. [6 marks]
3.12 Show Your Skills
- A general election to the Lok Sabha has ended, and no party or pre-election alliance has won a majority of the seats. Two separate groups of parties approach the President within the same week. Each claims that it can command the support of a majority of the House, and each asks to be invited to form the government. The outgoing Prime Minister, whose party has lost seats, advises the President to invite a particular leader. [5 marks]
- Name the power the President is exercising in this situation, and explain what makes it different from the President’s other powers.
- State what step the President may require of the leader who is finally invited to form the government, and where that step must take place.
- Explain why the President is not bound to act on the advice of the outgoing Prime Minister here.
- Read the following communication and answer the questions that follow. It is drawn from a Governor’s report of the kind the Constitution provides for. “No party or combination of parties in the Legislative Assembly is able to form a government. Three attempts to elect a leader who commands the confidence of the House have failed, and the Assembly has not been able to transact business for several weeks.” [5 marks]
- Name the kind of emergency the President may proclaim on such a report, and state the constitutional ground for it.
- State any two effects such a proclamation has on the government of that State.
- State within what period the proclamation must be approved by Parliament, and the longest period for which it may remain in force.
- Study the description of the chart given below and answer the questions that follow. The chart has three levels joined by upward arrows. At the bottom is a single wide box marked ‘The people of India’. Above it are two boxes, one for the elected members of the two Houses of Parliament and one for the elected members of the State and eligible Union Territory Legislative Assemblies, with both boxes enclosed in a bracket. A single arrow rises from the bracket to a box at the top marked ‘President of India’. [4 marks]
- Name the body shown inside the bracket, and state what kind of election the chart as a whole represents.
- Explain how this arrangement gives the States a voice in choosing the President.
- State one thing about the presidential election that a chart of this kind cannot show.