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.
54. "Election of the President. - The President shall be elected by the members of an electoral college consisting of -
(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States."
In this Article and in Article 55, "State" includes the National Capital Territory of Delhi and the Union Territory of Pondicherry which is instituted by the Constitution (70 th Amendment) Act, 1992, Section 2.
As far as practicable, there shall be uniformity of representation of the different States at the election, according to the population and the total number of elected members of Legislative Assembly of each State, and parity shall also be maintained between the States as a whole and the Union (Article 55). This second condition seeks to ensure that the votes of the States, in the aggregate, in the Electoral College for the election of the President, shall be equal to that of the people of the country as a whole. In this way, the President shall be a representative of the nation as well as a representative of the people in the different States. It also gives recognition to the status of the States in the federal system.
The system of indirect election was criticised by some as falling short of the democratic ideal underlying universal franchise, but indirect election was supported by the framers of the Constitution.
Why the President is elected indirectly?
The President is indirectly elected because:
(1) in view of the adoption of a cabinet system of government under which the President was to function as an constitutional head of the State, direct election by the entire electorate as in the case of the President of the U.S.A. was considered neither necessary nor advisable . Yet, it was thought desirable to have the President elected by as popular body as possible. Both these purposes have been realised in the present system.
(2) The significance of an electoral college composed of not only the members of both Houses of Parliament but also those of the State Assemblies, needs emphasis.
In an election where the Head of the Nation is chosen, if the members of Parliament alone participate, it is possible that a party who has been in majority in Parliament can easily see its candidates elected. But when the members of the State Assemblies also participate in the election, the picture is likely to undergo a substantial change. For, it is quite possible that the party which has won majority in Parliament may be a minority in many State Assemblies. Under such conditions a party supported by a majority of members in Parliament will not itself be able to elect its candidate to office.
The effect of such an electoral college is to make the President a representative of States and Union equally. This is, indeed, in complete harmony with the general scheme of the Indian Constitution which is neither purely federal nor purely unitary in character.
Proposing candidates in Presidential election
The Presidential and Vice-Presidential Election (Amendment) Act, 1974, requires that a Presidential candidate can be proposed only by at least 10 electors and has to be seconded by at least 10 electors. Certain amount of security deposit is also required from each candidate. The object of these provisions should be to prevent frivolous nominations and to have fair nomination.
Election of President
The President is elected indirectly by an electoral college consisting of the elected members of both Houses of Parliament and the Legislative Assemblies of States (Article 54) . The idea of direct election was proposed by many in the constituent Assembly, among them were K.T. Shah, who had well defined views on the matter. But the Assembly found the idea contrary to the spirit of Parliamentary Government. Apart from this, indirect election was designed to help electing a statesman who was not directly involved in party politics. Dr. Ambedkar and Nehru considered election by the expanded Electoral College as equivalent to direct election based on universal adult franchise.
Time for election
Under Articles 56 to 62 of the Constitution the election of the President must be held before the expiration of the term of the outgoing President. It may happen that State Legislative Assembly may have been dissolved at that time. The question arises whether the election to the office of the President can take place in those circumstances. In re: Presidential Election, AIR 1974 SC 1682: (1974) 2 SCC 33, it was held that the election can and must be held even in those circumstances. The members of the dissolved Legislative Assembly cannot vote because they are no longer members of the Electoral College. The validity of the election is unaffected.
According to Article 71 of the Constitution, Election Disputes as to the office of President and of Vice-President are within the jurisdiction of the Supreme Court. The 39 th Amendment Act, 1975 abolished this jurisdiction of the Supreme Court; such disputes had to be decided under that Amendment by a forum to be established by Parliament by law. The Supreme Court's jurisdiction was restored by the 44 th Amendment, 1978.