Elections of President and Vice President

The President of India is the head of the state. He is the first citizen of India and is a symbol of the solidarity, unity, and integrity of the nation. The President has the responsibility and authority to defend and protect the Constitution of India and its rule of law. Invariably, any action taken by the executive or legislature entities of the constitution shall become law only after the president’s assent. The President is the foremost, most empowered, and prompt defender of the constitution (Article 60), who has preemptive power for ensuring constitutionality in the actions of the executive or legislature. Thus the elections of office of President as well as Vice President becomes significant. The elections of President and Vice President is governed by the provisions of the Constitution.

Eligibility for election as President

Article 58 of the Constitution of India speaks about the eligibility in the elections of President

 Eligibility for re-election (Article 57)

A person who holds, or who has held, office as President shall, subject to the other provisions of this Constitution, be eligible for re-election to that office.

Process of the election of President (Article 55)

The bare provision of the Constitution reads as:

Article 54 mentions that there shall be an election for the President of India. The President of India is elected indirectly by the single-transferable voting system. The President is elected by an electoral college consisting of elected representatives of the government that form the government after being elected in the state assembly and national elections. The nominated members of both the houses and state legislatures are not allowed to vote in the presidential election. Hence the electoral college of the presidential election consists of:

• Lok Sabha and Rajya Sabha
• Legislative Assemblies of the states
• Legislative Assemblies of the Union Territories of Delhi, Jammu & Kashmir, and Puducherry (Since 1992 through the 70th Constitutional Amendment Act)

Article 55 states the manner of the election of the President. It states that:

• The President is elected indirectly by an electoral college.
• The election shall be done by a secret ballot.
• The election shall be held following the system of proportional representation using a single transferable vote.

The election is held following the system of proportional representation using the single transferable vote (STV) method wherein the preferential voting system is followed. It takes place by a secret ballot system. The Electoral College for the presidential election comprises elected members of Lok Sabha, Rajya Sabha, and State Legislative Assemblies of all states and Delhi, Jammu & Kashmir, and Puducherry

Process of voting

On 18^th July, elected MLAs and MPs across the country will vote to elect India’s 15th President. Under Article 62(1) of the Constitution, “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”. President Ram Nath Kovind’s tenure ends on July 25. The President is elected via an Electoral College system, wherein the votes are cast by national and State-level lawmakers. The elections are conducted and overseen by the Election Commission of India.

The Electoral College is made up of all the elected members of the Upper and Lower Houses of Parliament (Rajya Sabha and Lok Sabha MPs), and the elected members of the Legislative Assemblies of States and Union Territories (MLAs). This means, in the upcoming polls, the number of electors will be 4,896 — 543 Lok Sabha MPs, 233 MPs of the Rajya Sabha, and 4,120 MLAs of all States, including the National Capital Territory (NCT) of Delhi and Union Territory of Puducherry

Some important facts about the President’s Election 2022

• The election is scheduled to be held on July 18.
• The nomination process began on a day when various opposition parties are meeting in Delhi to decide on a presidential candidate.
• The nominations can be filed till June 29 and the scrutiny of the papers will take place on June 30. July 2 has been decided as the last date for withdrawing from the electoral battle.
• The counting will be held here on July 21.
• The term of incumbent President Ram Nath Kovind ends on July 24.
• The President is elected by the members of the Electoral College consisting of elected members of both houses of Parliament and elected members of the legislative assemblies of all states, including the National Capital Territory of Delhi and the Union Territory of Puducherry.
• The nominated members of either Rajya Sabha or Lok Sabha or legislative assemblies of the states are not eligible to be included in the Electoral College and, therefore, they are not entitled to participate in the election. Similarly, members of the legislative councils are also not electors for the presidential election.
• While voting takes place in Parliament House and state legislative assemblies, the counting of votes is held in the national capital.

Election of the Vice President 

Section 2(h) of the Presidential and Vice-Presidential Elections Act, 1952 mentions the definition of “Vice-Presidential election” which means “an election to fill the office of the Vice President of India”.  Article 66 of the Constitution of India, 1950 states the provision for the election and eligibility of the Vice President. Similar to the President of India, the Vice President is also elected via the system of proportional representation using a single transferable vote which symbolizes an indirect election. The only difference between the Presidential elections with that of the Vice President’s is the composition of the Electoral College as provided hereunder;

1. The Electoral College contains not only elected but also nominated members of both Houses of the Parliament (in the President’s election, only elected members constitute the Electoral College).
2. The Electoral College doesn’t include the members belonging to the State Legislative Assemblies (the elected State Legislative Assemblies members are inclusive in the Electoral College composed for the President’s election).

It is to be noted that Section 9 of the Presidential and Vice-Presidential Elections Act, 1952 states the way of voting at the elections which is “votes shall be given by ballot in such manner as may be prescribed, and no votes shall be received by proxy”. Thus, voting in the Vice President’s election has to be mandatorily carried out by a secret ballot. After the election takes place followed by result declaration, the Returning Officer shall report it to both the Central Government & the Election Commission. Then Central Government shall publish it in the Official Gazette with the declaration containing the name of the person who has been elected to the President or Vice President’s office as the case may be. 

Part II of the Presidential and Vice-Presidential Elections Act, 1952 relates to disputes regarding elections. Section 17 of this Act mandates that any dispute or confusion that arises in nexus with the Vice President’s election is to be inquired into and decided solely by the Supreme Court of India whose decision will be perceived to be final. 

Qualifications of the Vice President

Article 66 (3) of the Indian Constitution provides three essentials that need to be fulfilled;

1. The person shall be an Indian citizen;
2. The individual must have completed thirty-five years of age;
3. The person must be qualified for the election as a member of the Rajya Sabha, the Council of States. 

Also, Article 66(2) mentions the limitation for the Vice President that he shall not be a member of either Parliament Houses or the State Legislature at the time when he holds the Vice President’s office. Furthermore, a sitting President or Vice President of the Union followed by the Governor of a state or a Union Minister or State Minister who is not holding any position from where they can earn profit will qualify for being a candidate to contest for the Vice President’s position. Thus, to sum up, there are two conditions to hold the office of the Vice President, Therefore, to summarize the two conditions for holding the office of the Vice President are stated below;

1. An individual must not be a member of either House of Parliament or a House of the State Legislature at the time of appointment as the Vice-President. 
2. Any other office yielding profit shall not be held by an individual.

Term & vacancy of the office

The provision for the term of office of the Vice President is stated under Article 67 of the Indian Constitution which provides a five years term for the Vice President from the date of him entering his office. Further, Article 68(1) provides that the vacancy of the Vice President’s office must be filed before the expiration of the term of the previous Vice President thereby deleting the scope for keeping the office vacant. Article 68 (2) walking in line with Article 67 states that if the office of the Vice President is vacated on grounds of death, resignation by submitting a resignation letter to the President of India,  impeachment, or removal, which in many cases does not need to be in the form of impeachment as also the Constitution does not expressly talk about it, the election for the next Vice President should be completed without further delay who when elected will be holding the office again for a term of five years.

Presidential and Vice-Presidential Elections Act, 1952 

The Parliament has enacted Presidential and Vice-Presidential Elections Act, 1952 to govern the procedural part of the elections to the office of President and Vice President of India. The foremost step is the appointment of Returning Officer whose office shall be in New Delhi under Sec 3 of the Act. Election Commission under Sec 4 of the Act publishes the date of nominations, scrutiny of nominations, withdrawal of candidature, and poll. Sec 5A and Sec 5B of the Act provides for the nomination of candidates and presentation of nominations. The nominations are scrutinized and there is an option of withdrawal. Sec 5C of the Act requires the candidate to make security deposit of sum of fifteen thousand rupees. Sec 9 of the Act states about the manner of voting at elections. The section states “At every election where a poll is taken, votes shall be given by ballot in such manner as may be prescribed, and no votes shall he received by proxy.” The counting of votes and the declaration of results are provided under Sec 9 and Sec 10 of the Act.

Disputes relating to the election

Article 71 (1) of the Constitution states the forum in which disputes in nexus with the election of the President and Vice-President would be inquired into. Article 71 (3), it is the Parliament that is authorized to make law for regulating any matter relating to or connected with the election of the President or Vice-President. The conditions under which the petition for setting aside an election could be presented.

The dispute relating to the elections of President and Vice President shall be called in question by presenting a election petition as per Sec 14A of the Act, before the Supreme Court of India under Sec 14(2) of the Act. Sec 16 of the Act states that the reliefs which can be claimed in the election petition by petitioner which includes: the election of the returned candidate is void, the election of the returned candidate is void and that he himself or any other candidate has been duly elected. Sec 17 of the Act states that the Supreme Court may order after the trail dismissing the election petition; or declaring the election of the returned candidate to be void; or declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected. The grounds on which the elections of President and Vice President can be declared void are:

the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the consent of the returned candidate;

the improper reception or refusal of a vote;

by reason of the fact that the nomination of any candidate (other than the successful candidate), who has not withdrawn his candidature, has been wrongly accepted;

non-compliance with the provisions of the Constitution or of this Act or of any rules or orders;

that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate has been wrongly accepted

Sec 18, Presidential and Vice-Presidential Elections Act, 1952

In the case titled Narayan Bhaskar Khare vs The Election Commission of India[1], the Supreme Court refrained to express its opinion on merit relating to the elections of President, declaring that all doubts and disputes concerning the Presidential election should be brought before it only after the declaration of the result of the election. It was precisely to avoid any such questions being taken to the judiciary that the President enacted clause (4) of Article 71.  The Court further stated, ‘the right of a person to apply setting aside an election must be determined by the statute which gives it. The petitioner must strictly bring himself within four corners of that statute and has no rights apart from it. The order appealed against is right and this appeal is dismissed. The Constitution provides for the elections of President and Vice President which is further supported by law made by the Parliament. Parliament has enacted Presidential and Vice-Presidential Elections Act, 1952 to govern the election of both the offices.

**Shagufa Parveen is a 4th year BBA LLB student from Amity Law School, Amity University, Patna

Disclaimer:  The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.

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[1] N.B. Khare v. Election Commission of India, AIR 1958 SC 139