The Bold Voice of J&K

Oath by the President in terms of Art-60 includes to preserve, protect & defend Constitution & the law

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As protector of Constitution President of India is above any Religion/Sect/Party/Vote bank considerations
Vested with executive power of Union President also holds supreme command of Defence Forces

DAYA SAGAR

President of India, the first citizen of India who once enters office as protector of constitution of India and as the supreme commander Defence Forces of the Union is no doubt nearly provided immunity for removal by impeachment ( Art-61) even by Parliament where the impeachment has to be vouched by 2/3rd majority of the total membership of both houses and that too with the President having the right to appear and to be represented at such investigation but it has also been laid down under Art-74 ( after 42nd and 44rth constitution amendments of 1974 and 1976 respectably ) that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice (Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court). Ofcourse the Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister but once one is appointed as Prime Minister he gets in a way ‘ultimate power’ as long as one enjoys support of majority in Lok Sabha for retaining the position as PM.
Not only that in terms of Art-77 of COI (1) All executive action of the Government of India are to be expressed to be taken in the name of the President, (2) orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President and (3) the President shall make rules for the more convenient transaction of the business of the Government of India & for the allocation among Ministers of the said business but with the rider ( Article-74) that president shall go with the advice of the council of Ministers for that. All to be done with the advice of Council of ministers but the papers would reflect to a common man ( with limited access to rules ) that for actions it is President who is responsible.
So, One would ask in case the President has to go with the advice of the Council of Ministers which is appointed on the strength of the political party/ group holding majority in the Lok Sabha ( Lower house ) how could the responsibility to preserve, protect and defend the Constitution can be pinned on oath in the person of the President to the best of one’s ability?
While discussing the constitutional status of the President of India it will also be worthwhile to have a look at Art-124 of COI (THE UNION JUDICIARY ) which says that 1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges where every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A and shall hold office until he attains the age of sixty-five years provided that among other things is in the opinion of the President, a distinguished jurist. The other important and related feature is contained in Art-124(4) which says A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge .Removal of a Judge is not that protected as is impeachment of President. Removal of a PM too is not that protected.
As regards the appointment of President of India ofcourse it has to be by election but through an indirect mode of election as prescribed in Art-54 of constitution of India which says 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/UTs but for that Art-55 prescribes that as far as practicable, there shall be uniformity in the scale of representation of the different States and for securing such uniformity among the States inter se as well as parity between the States as a whole and the Union, the number of votes which each elected member of Parliament and of the Legislative Assembly of each State is entitled to cast at such election shall be determined in the manner where (a) every elected member of the Legislative Assembly of a State shall have as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the State by the total number of the elected members of the Assembly (b) if, after taking the said multiples of one thousand, the remainder is not less than five hundred, then the vote of each member referred to at (a ) shall be further increased by one and (c) each elected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the States by the total number of the elected members of both Houses of Parliament, fractions exceeding one-half being counted as one and other fractions being disregarded.
So in a democratic republic like India the role and status of the President of India has to be very intimately, & selflessly and rising above all personal /political /communal/ sectoral interests realised by every Indian citizen, particularly by those filing their application for contest, those who support the nomination of a candidate and above all by all the members of the electoral college i.e members of Lok Sabha, Rajya Sabha and legislative Assemblies of States & UTs.
In common man language the President of India is elected through indirect election by the people of India through their elected representatives who carry individually a vote value nearly in proportion to the averaged population at the back of a representative coming from a State/ UT. The other spirit behind the principles enshrined in the terms of the appointment of a President is that the presidential election should not be held projecting the contesting candidate as being a candidate of a Political party, each member of the electoral college should exercise his/ her option in terms of his/ her free will & assessment also reflects from sub- Section-3 of Article – 55 which says that the election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.
(The author is Sr Journalist, social activist and analyst J&K affairs [email protected]).

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