A Few Thoughts on the Institution and Election of the President of India

In recent times the Presidential election has repeatedly been on the front-page of the country’s papers. Two themes that have recurred in the discussion are (a) the choice of President somehow be an “election” and (b) that the President ought to be an apolitical person/above politics.In recent times the Presidential election has repeatedly been on the front-page of the country’s papers. Two themes that have recurred in the discussion are (a) the choice of President somehow be an “election” and (b) that the President ought to be an apolitical person/above politics..by Subhrajyoti Gupta.In recent times the Presidential election has repeatedly been on the front-page of the country’s papers. Two themes that have recurred in the discussion are (a) the choice of President somehow be an “election” and (b) that the President ought to be an apolitical person/above politics..From a Constitutional perspective both these ideas are problematic. Etymologically the word “election” denotes a choice. Thus in law, one can talk about “electing” between two remedies, an election can be for a public office or post in a private club, it can be subject to an election petition or not. It is a generic term that has no fixed requirement in law..However, it is submitted that the term “election” is vested with a special significance under the Indian Constitution. The Supreme Court has held time and again that the “Republican and Democratic” form of Government is a basic structure of the Constitution. A Republican and Democratic form of Government in turn requires an election that is “effective instruments of ascertaining popular will” (see Indira Nehru Gandhi v Raj Narain). Thus it is submitted that whenever the Constitution requires an “election”, it is understood within this particular meaning..Now, what constitutes “popular will” has been a contested issue in political science and law. It does not necessarily mean an outcome of a “direct exercise of franchise”, indeed there are times when a direct election is neither practical nor desirable. But I submit that, at the least, it has to have some nexus with the basic electoral unit i.e. the adult citizen who is not disqualified to vote under the laws of the land (lunatic,prisoner etc). The elector can be distinguished from a “political party” which is merely defined as an association of individuals registered with the election commission (see Representation of People Act S.2(f) and S. 29A). The later carries the mandate of the electors, has a privileged tax status and is legally significant for various provisions of the electoral and Constitutional laws, but is a distinct and separate entity from the electors..In this context, it will be meaningful to visit the scheme of the Electoral College that will be “electing the President”. The Constitution has deemed it impractical to have direct elections for the President and instead provides for a complex system of proportional representation. The Electoral College comprises of MLAs and MPs who have been assigned a distinct value for their vote. The value of an MP’s vote is that the total value of MLAs vote divided by total number of MPs (Lok Sabha + Rajya Sabha). The value of MLA vote is decided by dividing the population of the State by the total number of MLAs multiplied by thousand. The system as envisaged by the Constitution set up a direct nexus with the population of the State and the franchise thereby setting up a strong nexus with the popular will. However it is pertinent to note that the population of State is as per the 1971 census, and the number of MPs and MLAs are constant since 1971 and the 42nd amendment, thus the figures no longer correspond to the actual will of the electors. As stated earlier the determination under the standard is qualitative but when a Constitutional representation scheme is based on a statistical instrument and the instrument deviates so much from the actual figures, it puts the system to question. Indeed this is not an academic issue at all since the large increase in the population of the northern states means that some of the northern constituencies have almost double the number of people as the southern constituencies..To aggravate the folly, the system of elections in Rajya Sabha has undergone change as well. In 2003, Section 3 of the Representation of the People Act 1951 was amended to make elections to the Rajya Sabha through a system of open ballots. The Supreme Court subsequently upheld the decision in a Constitution Bench decision in Kuldip Nayar v Union of India, ostensibly on the ground of discipline and preventing corruption and cross voting. Much can be said about the merits of the decision, but it is submitted that a open ballot under the influence of whip (disobedience to the whip can lead to disqualification from membership of the House under the Tenth Schedule of the Constitution) has made the elections to the Rajya Sabha a party-list system as opposed to a system of proportional representation. The difference is significant; under the earlier system while the Rajya Sabha still broadly reflected the composition of the State Legislature the system was “election” because it was done under a secret ballot where conscience (or cross voting under the influence of x, py, z) would dictate the choice. Now, compulsorily the Rajya Sabha reflects the relative party position of the State Legislatures. It is far removed from popular will itself..Last but not the least there is the question of the “whip”. The Presidential election itself is through secret ballot. A whip issued on this occasion, or so the author understands, will not be enforceable under the Tenth Schedule. However it is to be understood that a whip is both a moral as well as legal obligation. To issue a whip and say it is unenforceable, is tantamount to saying adultery is acceptable since the spouse would not find out. Besides, parties are not unaware of the proclivities of their members and can find out when a whip has been disobeyed. It might bring retaliation. A whip therefore runs counter to conscience in so far as it creates a directing force in the form of party hierarchy..Leaving aside the technical arguments, even notionally there seems to be no requirement of the President having any popular authenticity, which is attested by the fact that the President is not deemed to be an elected official. Is it possible to consider somebody as PM or CM without having acceptability among the cross-sections of electorate? Is it possible for someone who is neither popular nor even known by the man on the street to be the President?.Thus the author submits that the President is a creature of the inter-se position of the political parties and a politician’s choice and not “elected” within the significant meaning of the term in the Indian Constitution. He is the outcome of politics that is somehow expected to be apolitical or above and beyond politics. That by itself is perhaps a dishonest expectation..The post of the President is often described as analogous to that of the Monarch in the British Constitution. This is perhaps one of the most incorrect analogies possible. The British Monarch’s apolitical nature comes from his desire to protect the institution of hereditary monarchy from popular onslaught. The Indian President has no such desire to protect the throne of his child; s/he has a pension to look forward to. Legally, the President is circumscribed by the text of the Constitution and by unwritten customs called Constitutional Conventions. The Supreme Court has clarified that most of the executive powers of the President are to be exercised in accordance with the advice tendered by the Prime Minister and the Cabinet. This sage interpretation of the Supreme Court has saved India from the disastrous battles of turf between the President and the Cabinet that has beset India’s neighbours. It is neither practical nor possible to exhaustively enumerate all the powers and the President retains many legal powers and discretions..Another check on the power of the President is that of Constitutional Conventions i.e. unwritten legally non-enforceable rules that are deemed normative on the political life. The concept has its origins in Britain and has wide currency in all Anglo-Saxon Constitutions. Such Conventions are particularly pertinent when deciding the powers of the President in inviting one or the other party to form a Government. This is even more pertinent in India, where coalition politics is the norm. However, it is questionable if the British Constitutional Conventions are valid per se in India or if India has such a well-developed doctrine of Conventions. Thus legally and politically it is a significant post. The President is anything but a rubber stamp..Thus the President of India is not only by the politicians, he is also for the politicians. It is an office remote to the popular will. He is answerable for his actions to none except that of his conscience, which as it has been seen, can be rather flexible..When did this happen? When and why is the office of President so organized? Was it the original intention or a later development? It is definitely a later development and as the author would submit part of a greater process of the diffusion of political power in India from the collective entity of the electorate to the agency of the political parties. The wider process is outside the four corners of this little column and needs wider social and scholastic commentary. The Presidential elections are only symptomatic of this shift of power from people to politicians, with deep implications for Indian democracy..Subhrajyoti Gupta is a Assistant Professor at Jindal Global Law School. He completed his first degree in law from the NUJS, Kolkata in May 2006. Between 2006-2009, he practised as an appellate litigator, primarily based in the Supreme Court of India and the High Court of Delhi. During this time he was attached to the Chambers of Ms. Meenakshi Arora, Advocate on Record and Standing Counsel of the Election Commission of India and he worked closely with the Election Commission of India in sensitive matters like the challenge to the Delimitation Act, expulsion of MPs, Office of Profit Bill, among others.