PRESIDENT AND GOVERNOR

PRESIDENT AND GOVERNOR

 

 

 

ARTICLE

PRESIDENT GOVERNOR
  •     Article 52 to 78 in Part V.
  •     Article 123 Ordinance Making.
  •     Union Executive: President, VP, PM, CoM, AGI.
  •      Article 153 to 167 in Part VI.
  •      Article 213 Ordinance Making (Rule 89).
  •      State Executive: Governor, CM, CoM, AGS.
 

 

 

 

 

 

 

 

 

 

 

 

 

 

ELECTION OF PRESIDENT:

 

•         Elected indirectly by people of India.

•         Reasons for Indirect Election:

1.       President is only a nominal executive and the real executive is PM.

2.       The direct election would have been very costly and time- and energy-consuming.

•         Members of Electoral College Consist:

1.       Elected members of both House of Parliament (LS + RS).

2.       Elected members of State Legislative Assemblies. (Neither Elected nor nominated member of Legislative Council are part of college).

3.       Elected members of UT of Delhi and Puducherry.

•         The present system where members of electoral college are from Union and State both so it makes the President a representative of the Union and the states equally.

•         To provide uniformity in the scale of representation of different states as well as parity between the states as a whole and the Union at the election of the President, Value of Vote determined in the following manner:

 

1.       Value of Vote of an MLA: X

 

2.       Value of Vote of an MP:

 

•         Election by system of Proportional representation by means of the single transferable vote and the voting is by secret ballot. A candidate, in order to be declared elected to the office of President, must secure a fixed quota of votes.

 

Electoral Quota =  +1

 

•         All doubts and disputes in connection with election are inquired into and decided by the Supreme Court whose decision is final.

•         If the election is declared void by the Supreme Court, acts done by him before the date of such declaration are not invalidated and continue to remain in force.

 

Point to Remember: Nominated members do not participate in Election but participate in Impeachment procedure. If assembly is dissolved, members cease to be qualified to vote, so the election of a person as President cannot be challenged on the ground that the Electoral College was incomplete.

 

 

 

PARAMETERS PRESIDENT GOVERNOR
 

 

APPOINTMENT

Elected indirectly by people of India.

 

  •      Appointed by the PRESIDENT.
  •     He is neither elected directly by the people nor indirectly elected by a specially constituted electoral college. (Canadian Model)
  • Independent constitutional office, not under the control of or subordinate nor an employment under the Central government.
 

 

 

 

 

QUALIFICATION

  •     Citizen of India. (Naturalized or Registration)
  •      Completed 35 years of age.
  •      Qualified for election as a member of the Lok Sabha.
  •      Further, the nomination must be subscribed by at least 50 electors as proposers and 50 as seconders and make a security deposit of 15,000 in the RBI. If fails to secure one-sixth votes polled security deposit will be forfeited.
·     Citizen of India. (Naturalized or Registration)

·     Completed 35 years of age.

·     Two other conventions:

1.    ‘Outsider’ should not belong to the state where he is appointed.

2.    While appointing the governor, the president is required to consult the CM of the state concerned.

However, both the conventions have been violated in some of the cases.

 

OATH

Administered by the CJI and in his absence, the senior most judge of the SC available Administered by the Chief Justice of state HC and in his absence, the senior-most judge of that court available.
 

 

 

 

 

 

CONDITIONS

BY CONSTITUTION:

•         Not be a member of either House of Parliament or a House of the state legislature. If elected have to vacate his seat.

•         Not hold any other office of profit.

•         Emoluments, allowances and privileges as may be determined by Parliament.

•         Emoluments and allowances cannot be diminished during his term of office.

•         When appointed as Governor of two or more state allowances shared by the states in such proportion as determined by the president.

PRIVILEGES AND IMMUNITIES:

•         Enjoys personal immunity from legal liability for his official acts.

•         Immune from any criminal proceedings, even in respect of his personal acts.

•         Cannot be arrested or imprisoned.

Civil proceedings can be instituted against him after giving two months’ notice in respect of his personal acts.

 

 

 

TERM

  •      Term – 5 years
  •      Resignation to Vice President.
  •      Eligible for Re-election for any no. of times (USA only two times).
  •      Hold office beyond his term until his successor assumes charge to prevent ‘Interregnum’.
  •      Term – 5 years, subject to the pleasure of the President.
  •      Pleasure of the President is not justifiable so no security of tenure and no fixed term of Office.
  •      Resignation to President.
  •      Hold office beyond his term until his successor assumes charge to prevent ‘Interregnum’.
 

 

 

 

 

 

 

 

 

 

 

IMPEACHMENT

  •      Impeachment for ‘Violation of the Constitution’ (meaning of phrase not defined in constitution).
  •      Can be initiated by either House of Parliament.
  •      Charges should be signed by one-fourth members of the House and a 14 days’ notice should be given.
  •      Resolution shall be passed by BOTH the house by a majority of two-thirds of the TOTAL membership of that House
  •      President has the right to appear and to be represented at such investigation. If
  •      Quasi-judicial procedure in the Parliament.

Nominated members of both (LS+RS) house participate though they do not participate in his election;

Elected members of the legislative assemblies of states and the UT of Delhi and Puducherry do not participate though they participate in his election.

·     Constitution does not lay down any grounds upon which a governor may be removed by the President.
VACANCY

(Only for President)

  •      Any of the following ways: Expiry of tenure + By Resignation + Removal by Impeachment + Death + Otherwise (Example- Disqualified to hold office or Election is declared void).
  •     Election to fill the vacancy must be held before the expiration of the term. Vice President does not get the opportunity to act as President.
  •      Office falls vacant by resignation, removal, and death or otherwise, election should be held within six months from the date of the occurrence of such a vacancy (Vice-President acts as the President until a new President is elected).
  •      The newly-elected President remains in office for a full term of five years from the date he assumes charge of his office.
  •      President is unable to discharge his functions due to absence, illness or any other cause, the (VP à CJI à senior most judge of SC) discharges his functions until the President resumes his office.
VETO POWER
  •      Absolute Veto (AV): Withholding of assent to the bill passed by the legislature.
  •      Qualified veto (QV): Overridden by the legislature with a higher majority. (USA President)
  •      Suspensive veto (SV): Overridden by the legislature with an Ordinary majority + Not for Money bill.
  •     Pocket veto (PV): Taking no action on the bill passed by the legislature. + Not for Constitutional amendments (44th CAA, 1978 made it obligatory for president to give his assent to Constitutional amendment bills).
VETO OVER PARLIAMENTARY LEGISLATION UNDER ARTICLE 111:

•         May give his assent to the bill, or

•         May withhold (AV) his assent to bill, or

•         May return (SV) the bill (if it is not a Money bill) for reconsideration. However, if the bill is passed again with or without amendments then President must give his assent to the bill.

 

VETO OVER STATE LEGISLATION UNDER ARTICLE 201:

•         May give his assent to the bill, or

•         May withhold (AV) his assent to bill, or

•         May direct the governor to return (SV) the bill (if it is not a Money bill) for reconsideration of SLA. However, if the bill is passed again with or without amendments and President is not bound to give his assent to the bill.

•         Further, the Constitution has not prescribed any time limit to take decision regard to a bill reserved by the governor for his consideration. Hence, the President can exercise pocket veto in respect of state legislation also.

VETO OVER STATE LEGISLATION UNDER ARTICLE 200:

•         May give his assent to the bill, or

•         May withhold (AV) his assent to bill, or

•         May return (SV) the bill (if it is not a Money bill) for reconsideration. However, if the bill is passed again with or without amendments then Governor must give his assent to the bill.

•         May reserve the bill for the consideration of the President.

ORDINANCE MAKING POWER
  •     Article 123/213 empowers the President/Governor to promulgate ordinances during the recess of Parliament/State Legislature (SL).
  •     Promulgate an ordinance only when any one or both houses of Parliament/SL are not in session.
  •      Ordinances have the same force and effect as an act of Parliament/SL, but are in the nature of temporary laws (expiry of six weeks from the reassembly of Parliament/SL).
  •     Maximum life of an ordinance can be six months and six weeks, in case of non-approval by the Parliament/SL (Six months maximum gap between two sessions of parliament/SL).
  •      Issued only on those subjects on which the Parliament/SL (not all) can make laws and it an cannot abridge or take away any of the fundamental rights.
  •      The president/Governor’s satisfaction is justiciable on the ground of malafide. It is not a parallel power of legislation.
  •     President/Governor can withdraw an ordinance at any time and may also cease to operate even earlier than the prescribed six weeks, if both the Houses (one in case of unicameralism at state) of Parliament/SL pass resolutions disapproving it.
  •      Not a discretionary power, and he can promulgate or withdraw an ordinance only on the advice of the council of ministers headed by the PM/CM.
  • It can alter or amend a tax law or any act of Parliament/SL or another ordinance, can be retrospective, However, it cannot be issued to amend the Constitution.
PARDONING POWER Article 72 Empowers the President to grant pardons to persons who have been tried and convicted of any offence in cases where the:

•         Punishment or sentence is for an offence against a Union Law;

•         Punishment or sentence is by a court martial (military court); and

•         Sentence is a sentence of death.

Article 161 Empowers the Governor of a state so he can also grant pardons, commute, respites, reprieves and remissions of punishment and the sentence of any person convicted of any offence against a state law. But, the pardoning power of the governor differs from that of the President in following two respects:

•         The President can pardon sentences inflicted by court martial (military courts) while the governor cannot.

•         The President can pardon death sentence while governor cannot. Even if a state law prescribes death sentence, the power to grant pardon lies with the President and not the governor.

  •    Pardon: Removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
  •      Commutation: Substitution of one form of punishment for a lighter form.
  •      Remission: Reducing the period of sentence without changing its character.
  •     Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
  •      Reprieve: Implies a stay of the execution of a sentence (especially that of death) for a temporary period.
  •      It is an executive power independent of the Judiciary.
  •      Power is to be exercised by the President/Governor on the advice of the Cabinet.
  •      The President/Governor is not bound to give reasons for his order.
  •      The exercise of power by the President/Governor is not subject to judicial review except where the presidential decision is arbitrary, irrational, mala fide or discriminatory.
DISCRETION (acting without the advice of the ministers) Situational discretion under the following situations:

•         Appointment of PM/CM when no party has a clear majority in the Lok Sabha /SLA or when the PM/CM in office dies suddenly and there is no obvious successor.

•         Dismissal of the Council of minister when it cannot prove the confidence of the Lok Sabha/SLA.

•         Dissolution of the Lok Sabha/SLA if the council of ministers has lost its majority.

  •      No Constitutional Discretion
  •      Constitutional Discretion:

o  Reservation of a bill for the consideration of the President.

o  Recommendation for the imposition of the President’s Rule in the state.

o  While exercising his functions as the administrator of an adjoining union territory (in case of additional charge).

o  Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal District Council (6th scheduled areas) as royalty accruing from licenses for mineral exploration.

Seeking information from the chief minister with regard to the administrative and legislative matters of the state.

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