VACANCY IN THE OFFICE OF THE PRESIDENT

Who is a President?

Article 52 of the Indian Constitution defines that ‘There shall be a President of India.’ President is the nominal head of the state. He is considered to be the first citizen of the nation. It is through him that a nation is being recognized. The President is the formal head of all the three organs (executive, legislature and judiciary) and also holds the position of Commander-in-Chief of the Indian Armed Forces. Any bill passed by the Parliament can only become law after his assent.

Who can be a President?

Article 58 of the Indian Constitution states the qualifications which a contesting candidate must possess in order to become a President.

Qualifications are –

  • A person must be citizen of India
  • A person is 35 years of age or above
  • A person must be qualified to be a member of Lok Sabha
  • Person holding any office of profit under the Government of India and Government of any State shall not be eligible for the election of the President.

How does vacancy occur in the office of the President?

  • Article 56 of The Indian Constitution prescribes the tenure of the office of the President i.e., 5 years.
  • However, a president can even resign his office by writing to the Vice-President.
  • He can even be removed from his office, if found violating the Constitution. The method is known as ‘impeachment’ and has been defined in Article 61 of the Indian Constitution.

If vacancy occurs, how will it be fulfilled?

  • If vacancy is caused by the expiration of the term of the office, it must be fulfilled before the current President completes his tenure.
  • If vacancy occurs by reason of death, resignation or removal, the election must be held in no case later than six months from the date of occurrence of vacancy.

In in re Presidential Election case,[1] the Supreme Court held that the vacancy in the office of President must be filled before the expiration of tenure of the current President with respect to Articles 62 (1), 54 and 55 of the Constitution. Article 56(1)(c) shall be applicable only in cases when a successor has not entered in the office, owing to such circumstances President whose term has expired shall continue to be in office.

Eligibility for Re-election

Article 57 of Indian Constitution, states that a person who has held the office of President is eligible to be re-elected provided that subject to provisions of the Constitution.

Who all can vote in the election of the President?

Article 54 of Indian Constitution defines that President shall be elected by the members of an electoral college comprising of –

(a) the elected members of both Houses of Parliament; and

(b) the elected members of the Legislative Assemblies of the States.

How is election conducted to fill the vacancy of the office of President?

Article 55 of Indian Constitution prescribes the manner in which the election of President is to conducted.

(1) At the election of the President, there shall be consistency in the scale of representation of the distinct States.

(2) ‘The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.[2]

Can Vice-President also act as a President during vacancy in the office of the President?

The answer to this lies in Article 65 of the Indian Constitution. It states that Vice-President can act as President and discharge his functions in case of casual vacancy or if the President is absent. The aforementioned Article also gives powers to Vice-President to hold the office of President in case the office of President is vacant owing to death, resignation, removal or any other reason. The Vice-President shall hold the office till the time new President is appointed. In case of illness of President, the Vice-President shall hold the office till the time President resumes his duties. The Vice-President shall be entitled to emoluments, allowances and privileges of the President till the time he is acting as President.

Case Law relating to election of the President

In Dr. N. B. Khare v. Election Commissioner of India, [3]the petitioner challenged the holding of the election since the general election in some parts of Punjab and Haryana had yet to take place and the electoral college as defined in Arts. 54 and 55 would be incomplete, therefore the election of the President should be adjourned till the completion of electoral college by election in the State. The Court held that the election of the President can only be challenged after the completion of the election, i.e., after the candidate is declared elected. ‘Article 71 (4) which was added by the 11th Amendment makes it clear that the election of the President or Vice-President cannot be challenged on the ground that there exists any vacancy in a particular electoral college for whatever reasons.’ After the election was over, in Dr. N. B. Khare [4]again challenged the validity of the Presidential election. The Court held that as per Section 14 of the Presidential and Vice-Presidential Election Act, 1952 an election could only be questioned by a candidate at such election by 20 or 10 or more electors, therefore Dr. Khare was neither a candidate nor an elector was not entitled to challenge the validity of election of the President. To discourage light-minded persons from contesting Presidential and Vice-Presidential Elections, Parliament has passed the Presidential and Vice-Presidential Elections (Amendment) Act, 1997, which now provides that name of the candidate for the post of President must be put forward by not less than 50 electors and also seconded by 50 electors. In case of candidate contesting for post of Vice-President must be presented by 20 electors and supported by 20 electors. Candidates contesting for the post of President or Vice-President shall submit an amount of 15,000 rupees as a deposit.

 Reference

  Constitution of India by J.N Pandey


[1] AIR 1974 SC 1982.

[2] Article 55(3) of Indian Constitution.

[3] AIR 1957 SC 694 : 1957 SCR 1081.

[4] AIR 1958 SC 139 : 1958 SCR 648.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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