The President: Election, Impeachment and Constitutional Position

The Union executive

Articles 52–78 in Part V deal with the Union executive: the President, the Vice-President, the Prime Minister, the Council of Ministers and the Attorney General. The President is the head of the Indian State, the first citizen of India and the symbol of its unity, integrity and solidarity. Article 53 vests the executive power of the Union in the President, to be exercised directly or through subordinate officers in accordance with the Constitution. In practice India is a parliamentary system: the President is the nominal (de jure) executive, and the Council of Ministers headed by the Prime Minister is the real (de facto) executive.

Election (Articles 54–55)

The President is elected indirectly by an electoral college consisting of:

• the elected members of both Houses of Parliament;
• the elected members of the legislative assemblies of the states; and
• the elected members of the legislative assemblies of the UTs of Delhi and Puducherry (added by the 70th Amendment, 1992, effective 1995). Jammu and Kashmir, now a UT with a legislature, is also covered.

Not included: nominated members of either House of Parliament or of state assemblies, and members of legislative councils in states. (Nominated MPs do take part in the election of the Vice-President.)

The election is held by proportional representation by means of the single transferable vote, and voting is by secret ballot. To ensure uniformity among states and parity between the states as a whole and the Union, votes are weighted:

• Value of an MLA's vote = population of the state ÷ number of elected MLAs ÷ 1,000.
• Value of an MP's vote = total value of votes of all MLAs ÷ total number of elected MPs.

The population used is that of the 1971 Census until the first census after 2026 (84th Amendment, 2001). A candidate must secure an absolute majority – more than half the valid votes – after counting first preferences and, if needed, transferring votes from eliminated candidates. All disputes about the election are decided by the Supreme Court, whose decision is final; if the election is declared void, acts done by the President before that remain valid.

Qualifications, oath and conditions

A candidate must be a citizen of India, have completed 35 years of age, be qualified for election as a member of the Lok Sabha, and not hold any office of profit (the offices of President, Vice-President, Governor and ministers are excluded from this bar). The nomination must be subscribed by at least 50 electors as proposers and 50 as seconders, and a security deposit of ₹15,000 is required. The oath is administered by the Chief Justice of India (or the senior-most judge available) – to preserve, protect and defend the Constitution and the law. The President cannot be a member of either House or of a state legislature; is entitled to official residence (Rashtrapati Bhavan), emoluments determined by Parliament that cannot be reduced during the term, and enjoys personal immunity from criminal proceedings and arrest during the term (Article 361).

Term, vacancy and impeachment

The President holds office for five years and is eligible for re-election (Dr Rajendra Prasad was the only President elected twice). The President may resign by writing to the Vice-President. A vacancy must be filled within six months; in the meantime the Vice-President acts as President, and if that office is vacant, the Chief Justice of India (as in 1969, when Justice M. Hidayatullah acted).

Impeachment (Article 61) – the only ground is "violation of the Constitution", which the Constitution does not define:

1. Charges may be initiated in either House, signed by one-fourth of its members, after 14 days' notice.
2. The resolution must be passed by a majority of two-thirds of the total membership of that House.
3. The other House investigates the charges; the President may appear or be represented.
4. If the second House also sustains the charges by two-thirds of its total membership, the President is removed from the date of the resolution.

It is a quasi-judicial procedure. Nominated members of Parliament can take part in impeachment (though they do not vote in the election), while elected MLAs who elect the President do not take part. No President has been impeached so far.

Constitutional position

The 42nd Amendment (1976) made the advice of the Council of Ministers binding on the President (Article 74(1)). The 44th Amendment (1978) allowed the President to send advice back once for reconsideration, but the President must act on the advice given after reconsideration. Article 74(2) prevents courts from inquiring into what advice was given.

Even so, the President has situational discretion:

• appointing a Prime Minister when no party has a clear majority, or when the PM dies suddenly and there is no obvious successor;
• dismissing a Council of Ministers that cannot prove its confidence in the Lok Sabha;
• dissolving the Lok Sabha if the Council of Ministers has lost its majority;
• the pocket veto over ordinary bills, and returning bills for reconsideration;
• seeking information from the Prime Minister under Article 78.

The President is thus like the British monarch – a constitutional head who "reigns but does not rule" – but is elected, and takes an oath to defend the Constitution, which gives the office moral authority as its guardian.

Practice: Mains question

*"The President of India is a constitutional head with situational discretion." Explain. (150 words)* Outline: Articles 53 and 74; the effect of the 42nd and 44th Amendments; four areas of discretion with examples – the appointment of Charan Singh (1979) and the hung Parliaments of 1989–1998, the return of bills for reconsideration (e.g. the Office of Profit Bill, 2006, returned by President A.P.J. Abdul Kalam), and pocket veto (President Zail Singh, Indian Post Office (Amendment) Bill, 1986). Conclude that discretion is meant to safeguard the Constitution, not to compete with the elected government.

Common traps

• Members of legislative councils and nominated members do not vote in the presidential election.
• Delhi and Puducherry MLAs vote after the 70th Amendment.
• Resignation goes to the Vice-President; oath by the Chief Justice of India.
• Impeachment: "violation of the Constitution"; two-thirds of total membership of each House.

Worked example: value of votes

Suppose a state has a 1971 population of 4,00,00,000 and 200 elected MLAs. Value of each MLA's vote = 4,00,00,000 ÷ 200 ÷ 1,000 = 200. The state's total = 200 × 200 = 40,000. If the total value of all MLAs' votes across India is 5,43,000 (approximately the figure used in recent elections) and there are 776 elected MPs, each MP's vote is worth 5,43,000 ÷ 776 ≈ 700. This ensures that the votes of the states together roughly equal those of Parliament.

Practice: check your understanding

1. *Why is the President elected indirectly?* The framers felt direct election would be costly and would create a rival centre of power to the Prime Minister in a parliamentary system.
2. *Can the President be arrested during the term?* No. Article 361 gives immunity from criminal proceedings and arrest; civil proceedings need two months' notice.