Here are a few issues that need to be discussed regarding the manner of the Election of the President of India and his powers.
I want you to have a debate on these issues. I shall also be present during the debate. At the end of the debate, I am sure that you will have a clear understanding of the President’s role and powers.
Please note that questions are likely on this topic in the General Studies paper at the Prelims as well as in the Mains. Thus topic is also important in both Public Administration and Political Science. It would not be surprising if it comes in the Compulsory Essay Paper.
You can present the views of your friends , who are not students, of this Institute and if you wish even their names and colleges will be represented but under your name. The idea is to involve the entire community of students, teachers and the general public on this debate. But outsiders will not be allowed to participate directly. Tests will be given at intervals as the debate goes on.
Please remember debate and interaction among yourselves is vital for a proper understanding of this lesson
I shall start with a few issues and as the debate process pose a few other related issues.
So, participate. Remember that the whole world is watching you. Let them get an idea of your intelligence and let even foreign students understand that you are as good as they are. This site is regularly accessed in many countries according to Google Report.
1 .Elected Members of the State Legislative Assemblies no doubt participate in the election of the President, but the President acts on the advice of the Union Council of Ministers even in the case of State Subjects. One: enumerate these cases. Two: Does this not violate the Federal Spirit?
2. The Governor acts as the agent of the Centre. Often the States are not even consulted in the appointment of the Governor. And States have no power to demand the recall of a troublesome Governor. Is this not distasteful particularly when a party different from the one at the Union, is in power in the States. What is the remedy if the Governor goes directly against the wishes of the State Government? Does the President act as the arbitrator. In the long history of the Republic, the Governor acts on the orders of the President who in turn acts on the advice of the Council of Ministers at the Centre.
3. The removal through impeachment of the President is next to impossible. Parliament cannot even remove the Judges. The Chief Justice of India Mr. Balakrishnan argued that he was being harassed because he is a Dalit. Does a Dalit have immunity from impeachment if he is charged with corruption? Same is the case with the former Chief Justice of Karnataka Mr. Dinakaran. In the case of Justice Ramaswamy, coalition politics prevented the impeachment proceedings from being successful. He went scotfree. What is the remedy? What do you think needs to be done? With regard to the procedure of impeachment? With regard to political compulsions? If Judges escape what happens to the Rule of Law?
4. What happens if an existing State Government belongs to the same Party as the one at the Centre, but loses confidence of the State Legislative Assembly. If elections to the President are imminent, the Union Government advises the President not to dissolve the State Assembly but to keep it under suspended animation so that the State MLAs vote for the President? Is it not a travesty of democracy?
5. Again if it is clear that a particular state is against the Candidate who is backed by the Majority Party at the centre is unlikely to be supported by a State Assembly, the Union Government advises the President to dissolve the State Assembles thus depriving the State members from voting?
6. The point is not how successful the Constitution is in normal times. But times are not always normal. It was an abnormal situation when Smt. indira Gandhi rode roughshod and imposed the Emergency. What is the remedy if the President acts as the stooge of the majority party in the Centre.
7. Again if the President feels that the party composition is such that he cannot be impeached, he may ignore the Union Council. How far can the Judiciary be helpful in such a case?
8. When two groups are equally strong, and lay claim to power, the President can choose his favorite who can then win over some from the rival group promising them berths in the ministry. What will happen in such cases. Mr. Jagjivan Ram complained that he was not made the PM because he was a Dalit.
More questions will be added as the debate proceeds. Read book by Durga Das Basu (20th edition 2012) given to you pages: 175-202.
Please remember that competition is intense and so put your best foot forward. I would even he happy if you can discuss among yourselves using the e mail and present group views. In such a case please mention the names of all the members of your group.
More issues will be added as the discussion goes on.
Have you added any question of yours on any subject you wish in the blog: ‘Ask a Question’ We will make the best effort to answer you. Remember that ours is the only Institution with four Ph.Ds and other highly qualified persons to guide you.
All the best
Rao
1. Case One: All the state MLAs participate in the president election in order to mean indirectly all the people of India participate in electing the President.
Case two: Since the PM council of members (which is a ruling party) take the decision, and the files go to the President only for signature.
Reply to Muralidhara: In a way yes. Since we elect the MLAs and the MPs and since they elect the President , you may say that he represents the people. But how far do these MLAs and MPs reflect the will of the people. they go ny what the party bosses say. I you go by the Social Media and the General Media opinion, people seem to prefer Abdul Kalam. Election becomes a matter of party politics. See how fast Nitish Kumar and Mulayam Singh changed their opinions. Do these MLAs and MPs have contact with the masses? So the idea that the President is elected by the people is a make believe idea.
Actually the President is not a signing machine. He can ask for reconsideration of what the Council had decided. He can send messages to Parliament. And if the Public come to know that the President is not happy with the Council of Ministers, it will have a great impact on public opinion. That is why the Ruling party wants a person as President who will do what he is told. The UPA did not want Pranab Mukherjee and Sonia preferred Mrs. Pratibha Patil to be given a second term. But events forced her hand.
Ans1(a). Elected members of legislative assembly do participate in the election of president of our, who is the constitutional head of the country. The irony here is even in the case related to the state President acts on the advice of the council of minister.Below are the such cases:
1. Passing of the bill : Once the bill is passed from the parliament the state has no power to resent the bill it becomes a law for the state.
2. The foreign treaties :The power of making the foreign treaties and implementing them belongs to parliament.
3.In case of breakdown of constitution in a state. The president may dissolve the Vidhan sabha of the state and dismiss the council of minister in suspended animation. In both the cases,The union parliament is entitled to pass the Law.
4. The Annual Budget of the state is presented and being passed by the parliament.
5. During the financial emergency with the consensus of the council of minister he can :
-Reduce the salaries and allowance of Public as well as state services.
-Can ask to submit the money bills of the state for his assent
-can issue instructions to the state in regards to the utilization of funds in the manner he(the president) thinks.
Reply to Chetan: There are a few points which are not entirely true above:
1. The Parliament cannot pass laws on whichever subject it likes. The Union cannot legislate on Agriculture, law and order, luxury tax and other items which are in state list. The state government can challenge it and it would be struck down as being ultra vires.
4. The annual budget of the state is not presented and passed by the Parliament.
Reply to Chetan from Aravind
Dear Chetan
1. Parliament cannot pass a bill on a State Subject. But when, after the State Legislature passes a Bill, but the Governor reserves the Bill for the Consideration of the President, he can refuse to sign it. In which case the State can do nothing. Or worse he may keep the bill pending for several months or even years. In all this he acts according to the advice of the Unon Council of Ministers.
4. YOU ARE WRONG. It is the State Legislature that passes the State Budget.
Thank you, Sir and Mr. T.S. Arvind for correcting me.
Ans1 b) The constitution of India is basically federal with striking unitory features.India has thoroughly centarlised Unitary constitution, The provinces as just seen ,had been artificially being made autonomus,within a define sphere.The constitution of India should contain a number of safegaurd for the protection of ‘State Rights’.
Few loop holes in our constitution regardin the Indian federation being federal.
-> The residuary powers are assinged to the Union by our constitution rather then the states.
-> No state except Jammu and Kashmir can draw its own constitution.
->Except in a few cases the states are not even consulted in the matter of the amendment of the bulk of the constitution which may be effected by the bill in the parliament,passed by special majority.
-> Though there is division of powers between the Union and the states,there is provision in our constitution for the exercise of control by the union both over the administration and legislation of the state.
->No equality of the state representation, for example if we take the example of the election of the president the total number of votes of a state is directly proportional to the population of that state.
Scholars from the country states that the unitary bias of our constitution has been accentuated, in its actual working by two factors so much so that very little is left for fedralism. The two factors are.
->The overwhelming financial power of the union and the utter dependency of states upon Union grants for discharging their function.
->The comprehensive sweep of the union planing commision.
There shall be changes in the costitution of India, I do agree that time has changed and constitution must be changed keeping in mind the need of the hour.
The founding fathers of the Constitution had in mind a strong
Central Govt. keeping in mind the vastness of the country .
Dr. Ambedkar stressed the need for a strong Central Govt.
The Indian federation is federal in spirit but unitary in character. This explains the extraordinary powers vested in the Central Govt.
Dear Nagesh
Times have changed. regional consciousness has increased. People resent the interference by the Union. Conflicts arise if two different parties in power at the Unon and the State concerned. Also as education advances, states demand more autonomy. And what do the states do if the Centre grants special financial packages as now happens in the case of UP and Bihar.
Constitutions must change with the times
1.The President is consulted in matters of state subjects only in the cases where emergency has been applied. This provision might seemed to be as violation of the Federal system, but the matter of significance is that we are an union of states. The provisions under which emergency can be enforced are quite critical to sovereignty and well being of the people of India as well as of that state. For example the emoergency in Jammu and Kashmir from 1989 to 1996 was critical to security of our nation.
On the other hand there can be instances where the emergency might be politically motivated, where indeciseve election results and loss of majority is used as reason to implement emergency.
The debate of Federal and Union is of high significance in present times where the smaller regional parties have gained more powers. The division of power between center and state have transgressed the list provided by the constitution and has moved to become a game of numbers. I would also like to mention that division of power among the states is the real issue. Chief Ministers of states generally have there own issues and they try to exert pressure on the Union government to frame policies favorable to them.
Under such circumstances The President, although interfere in federal structure at times, is critical to its existence.
Reply to Pabithra from Prof.Rao
Why should there be consultation on State Ministers with the President by the Union Council of Ministers. I can understand consultation by the Governor with the President on matters of the State over which he is the Governor.
The rest deals with Union State relations which we shall take up later.
Case 1) I would say that we have adopted few rules as part of constitution. We know that there are some loop holes in our constitution, but our people representatives not bothered about fixing those for their political gain.
We adopted election procedure from U.K. and today its election procedures have been upgraded but India still maintaining same old procedure. Example is, in India candidate can win the election by just one vote, but in U.K. based on the proportion of votes got by candidate the power will be distributed.
Case 2) I completely agree with the view point that President-Governor-Union Government definitely treats States with different party distastefully. Main reason for this problem is misusing discretionary powers for political gain.
Case 3) Political compulsion in impeaching a Judge has failed in our constitution. My suggestion is there should be a guardian who can step in and act by coordinating with political parties. In our constitution framework the President of India is almost like a rubber stamp and has to act according to the ruling coalition party, so no solution.
Case 4 & 5 & 6) We are like this only (President-Union Government-Governor).
We cannot find solutions to each problem and keep enlarging voluminous constitution. I expect people representatives should act with morality and ethics. But now a day it is hard to find such people compared to the time of Independence.
Case 7) As President of India will have discretionary powers have the right to rejects union government recommendations. If Presidents decision is out of the prescribed functional powers, then I think Judiciary can always guard the constitution and direct the President accordingly.
Case 8) When there are two groups which are equally strong and claim to power, then according to me President should give each party to rule for half of the duration that is two and half years with the written consent from both.
Reply to Jnanamurthy from Prof. Rao
1. Who told you that there is proportional representation in UK. Both India and the UK have first past the post system.
3. What is the guarantee that the guardian recommended by you will be impartial?
4. Avoid the expression: we are like this only. It is Kanglish.
7. How can you allow the President to have discretionary powers. He has some and they are enough. Can you tell me what his discretionary powers are?
8. What happens if the party ruling half the term does a Kumaraswamy?
Best thing is to order elections.
Role and Effective Powers of President
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President of India is elected by college of members of Parliament and member of state legislature by special normalization process such that votes of the States in aggregate shall be equal to the people of India i.e. parliament. Hence President is representative of whole country though elected indirectly. As President is only a constitutional head of Govt. of India, direct election of President has no utility. President is head of executive and has enormous executive, certain legislative, judicial and military powers, but he functions according to certain constitutional restrains. After 42nd amendment all the debate about the relation between President and Council of Ministers was put to stop by specifically inserting the article stating that President would act on the advice of Council of Ministers.
However we cannot completely rule out the important constitutional role and more than that moral role in the democracy which the President plays. In the history we have seen eminent personalities have become president and have contributed significantly to the democratic institution of India at crucial junctions. The president can play crucial role with respect to many constitutional provisions such as,
• The President represent as first citizen of India at various international forums, diplomatic visits representing the country. As India is becoming major geopolitical and economic power in the world this role becomes increasingly important. He influences the negotiations with regards to various international, multi-lateral and bi-lateral relations.
• By 44th amendment President can send back any matter back to Cabinet for reconsideration which however is not significant legally but plays very important role in terms of forming the public opinion as President is regarded first citizen and has larger than life status among people of India. (When the presidential rule was imposed in UP while Abul kalam was president and when he sent back the decision for review, it kind of vindicated stand of opposition and Congress government had to take back the decision in front of public pressure.)
• Another aspect of President’s power is power of “pocket veto”. According to Article 111 President had to give assent, reject or return the Bill ‘as soon as possible’ without any specific time limit. Therefore theoretically President can keep the bill on his desk for indefinite time.
President’s Power in Federal Context
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President has substantial powers with respect to States which presents a controversial picture as States that have equal role in electing the President are at the mercy of President in turn Union government in many aspects.
• In ‘reserved matters’ related to states, President can overrule any state bill and he can’t be overruled in any manner and has absolute veto on these subjects.
• In cases of union territories President can repeal any bill or act as per the situation.
• Article 355 and 365 gives tight union control over the States and President can impose ‘Presidential rule’ on the recommendation of Governor on account of constitutional failure, armed rebellion and law & order situation.
• Governor of some states have special power with respect to some states as per Schedule -5 and 6 of constitution with respect to tribal areas and states which in turn gives power indirectly to President as Governor is indirectly acts at the ‘pleasure’ of President.
Therefore it will be right to say that even though we have federal structure but nature of Indian constitution is essentially ‘unitary’. The reason it was done so due to history of regionalism, feudalism and diverse social and cultural background of India, it was thought to have unitary nature to maintain national character, unity and integrity of nation after long independence struggle and experiencing unfortunate partition at the time of independence.
However in the 60 years of functioning of Indian constitution we can see that these powers are abused by central government as regional parties grew and imbalances and differences between state governments and central government increased (The congress govt. dismissing all state legislations when Indira Gandhi was in power and similarly Junta party lead misused power of article 355 to dismiss congress governments in states in 1977; AFSA applied to north eastern states in spite of continuous human rights violations and protest from its people). This demands some relook at these power and requirement of some mechanism to check the arbitrary power of Union Government on the behest of President’s name over the states.
In such scenario judiciary can play very important role. The judiciary has declared that it can look into matter of promulgating ordinances to see if it has been issued with ‘mala fide’ intent. The Judiciary can also look at the matters of promulgating of emergency after 44th Amendment to check if it is ‘mala fide’. It would be worth considering that judiciary should play crucial role in abuse of other powers – use of article 355, 356 also to check union government’s coercive powers because after all Supreme Court of India is guardian of Indian Constitution and hence its federal structure.
2. The provisions of giving extra powers to the center are one of bold decisions taken. This had its obvious pros and cons but these were in the backdrop of the dream of a unified India. To keep one of the most diverse demography a pivot had to be defined.
The need for above provisions have become more evident in recent times when we have seen a sudden emerge of regionalism in politics.If this lack of solidarity breaches a certain threshold,unprecedented situations may arise under which such laws may seem draconian.
When the law is made a certain behavior is expected from those for whom the law is made. When situation become unprecedented, the analysis of the virtues and vices is meaningless.
The judiciary of our country has been created to handle such situations , which have performed exceedingly well in upholding the rule of law. Apart from this the recent power sharing issue between states and center are important and should be debated thoroughly. We have to find out better power equations where by the nation as a whole can develop. The resource sharing has to been done keeping in mind the betterment of the living standards of who have been left out in the earlier wave. This indispensable from the dream of India to come true.
Its an excellent analysis by Pabitra.If I may conjecture,India is a federal form of Government.However,it is not United States of India.The last time when there was more autonomy at regional level,and lesser powers with central government,The american civil war took place.Now,lets fast forward to present times.Lets say Manipur,mizoram,meghalaya decide that they have much more in common with the burmese tribes than with rest of india,wont the issue of more powers at state level prove to be divisive?If tomorrow,Tamil Nadu decides that it is able to govern itself economically and will be better off than any central yoke,wont there be a demand for ealam for the state?If the powers enshrined in the constitution are not slanted towards the central authority,then who is going to come in between Karnataka and Tamil Nadu when the issue of Kaveri water sharing issue crops up?
To address these issues,u need a third party,whose authority is respected by all-Central govt.
The use-misuse-amending the rules of use, is a continuous process.
AFSPA-Armed Forces Special Powers Act.
It is not misuse.It is the law under which the armed forces operate within India in order to supress insurgencies which are potentially divisive to the integrity of nation.Also,AFSPA is operated NOT ONLY in NORTH EAST.Till recently it was operated in J&K.North East has Assam,Meghalaya,Mizoram,Tripura,Manipur,Nagaland,Arunachal Pradesh and Sikkim.Its not correct to simply lump them together and say AFSPA is operated in North East.Sikkim and now Meghalaya are some of the quietest states in India.Arunachal Pradesh has had no insurgencies at all.
Also,AFSPA will only be issued when the Army is required to operate.The application is more internal security related than political.
Paramilitary forces though,need not require AFSPA to operate.
2. As the matter of fact the President appoints those person as governors whose names are recommended by the council of ministers.It is awful in some cases, if the ruling party of the state is of opposition.In some cases the governor can create nuisance for these parties. One such live example is ‘Mrs Kamla Beniwal governor of Gujrat has unilaterally appointed Judge A Mehta as the Lokayukta of the state which is unconstitutional and the decision was upheld by the High court also’.
She is not accountable to the Mr. Modi’s government even the high court has upheld the decision leaving ample amount of question unanswerable.
->As the governor is appointed by the constitutional head of the country,Does this permits the governor to mauled the constitution.
->Ours is republic country,pondering on this scenario definition of republic should be changed by dictatorship.
->Shouldn’t the state should be given power in such cases to ask for the removal of the governor?
->As per the article 356 the governor can report to the president if the ministry in power attempts to subvert the constitution,who will the ministry report?
3.As per the constitution the Impeachment of the president or the removal of the chief justice seems to be an unachievable task .As per me India needs an Independent body of intellectuals,Honest,well qualified people. Who are directly being elected by the countries literate society on the basis of online polling, This would ensures the transparency.The body can decide the punishment keeping in mind the offence being made by the Individuals. Each state can elect one member for this body.
Independent body?Who is going to select them?
the online penetration in India is very less,we can forget the nordic countries methods.Also,it is elitist to say literate society,by online polling.What did the farmer,who toils for our food but has no resources to access the net has done to deserve to be kept out of this decision making process?
Essentially you are suggesting plutocracy (Rule by powerful few) rather than democracy (rule by all)
The judicial scrutiny has emerged as a serious concern to the charged levied against many judges of supreme court and high courts. The present constitution gives a complicated procedure for the removal of judges.
The idea of the constitution makers were that the judiciary would be upholder of the constitution and the checks to correct them were ideal enough for fair play.
But the current system is much bigger, the judges increasing in number have lead us to a situation where changes have become inevitable.
The government has worked towards judicial reform bill. There has been certain aversion raised about the stability of judiciary when power given to few tens of MPs would be with every other individual.
In USA there is a system where in people can register complain against judges with chief justice or a judicial committee. The committee then after proper investigation may take few steps like recommending impeachment, offering voluntary retirement, debare from working for few days, etc,.
Another method to restore faith in judiciary is to make the process of appointment transparent. Presently there is no properly refined procedure in appointment of the judges of the Supreme Court and high courts.
The law should aim to introduce implementable changes and enough vigilance. J
The other privilous issues of casteism, politics, and coliation compulsion are places where ideology and logic have been lost. Judiciary on the other hand is in pretty better situation. The independence of judiciary is the backbone of the constitution.