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--------------- Print Magazine --------------
  May 2016
  April 2016

The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next article in the series on constitutional provisions in order to aid our readers in understanding them.

62. "Time of holding election to fill vacancy in the office of President and the term of office of person elected to fill casual vacancy.- (1) An election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term .

(2) An election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in no case later than six months from, the date of occurrence of the vacancy, and the person elected to fill the vacancy shall, subject to the provisions of Article 56, be entitled to hold office for the full term of five years from the date on which he enters upon his office."

Election of President even if some vacancy in Electoral College

The Presidential Election is not free from difficulties. Election of the President can be held even if some seats in the Electoral College are vacant. Such election cannot be called in question on the ground of any vacancy existing for whatever reasons, among the members of the Electoral College electing a person either as President or Vice-President. Further, a President in office can change the composition of the Electoral College by dissolving one or more hostile Legislative Assemblies under Article 172(1) or 174(26) or under 356(1) of the Constitution of India.

Under such circumstances how can there be uniformity in the scale of representation? Is it under "as far as practicable"? Article 71(4), therefore, may be construed as repugnant to the purposes embodied in Article 55(4). Further, Article 55 is conspicuously silent on whether there will be representation of all or each State in the Presidential Election, although there is vacancy in the Electoral College. It only provides for "the different States." Since there is no guarantee to ensure non-vacancy in the Presidential Electoral College, the phrase, "the elected members of Legislative Assemblies of States" means only those who are actually in office at the time of Presidential Election.

The elected members of a suspended Assembly are entitled to take part in the Presidential Election. For example, the MLAs of Rajasthan participated in the Presidential Election in 1967 though the Assembly was kept under suspended animation under Article 356(1) (c) of the Constitution.

So also the MLAs of Bihar had cast their votes in the Presidential Election of 1969. But holding of election at a time when the House of the People stands dissolved could be simply a dangerous practice. In view of these possible mischiefs, neither the Constitution nor the Eleventh Amendment provides for any remedy against creation of calculated or pre-meditated vacancies in the Electoral College.

Election of President before expiration term

There is no satisfactory relief given in the conduction of Presidential Election. The suggestion is that, the Presidential Election must be held before the expiration of his term of office. The Election Commission shall issue the notification on or as soon as conveniently may be, after the sixtieth day before the expiration of the term of office of the out-going President or Vice-President, as the case may be. The election of the President must be completed within the time fixed by Article 62(1). Thus, the time limit is mandatory.


Keeping in mind the position of President and dignity of the country the filling of vacancy and election of the President should be conducted in such manner that it should not lead to any mischief or should not depict a lighter picture of the constitutional machinery. If there is a fulfillment of vacancy before the expiration of the term then there won't be any deadlock or hindrance in the working of the presidential position so as to strengthen the administrative behaviour of our constitutional machinery and it would develop more faith in our democracy.

Ekta Gupta

(Print Version)
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