Article 74 vs 163: President and Governor Powers

Article 74 vs. Article 163

• Article 74 does not mention discretionary powers, while Article 163 addresses them.
• The President acts only on the advice of the council of ministers.
• The Governor acts in two ways: on the advice of the council of ministers and via discretionary powers given in different constitutional provisions.
• The President is explicitly bound by the advice of the council of ministers.
• It is not explicitly mentioned that the Governor is bound by the advice of the council of ministers, and it is mentioned that the him/her will act in discretion.

Election Process

• The quota is determined by the formula: (Total value of MP's votes + Total value of MLA's votes + 1) / 2

Counting Process

• Step 1: Invalid votes are removed, and the electoral quota is fixed after voting.
• Step 2: If a candidate's total first preferences reach the electoral quota after the first round of counting, they win the election; otherwise, a second round of counting occurs.
• Step 3: Before the second round, votes of candidates with the fewest first-preference votes are taken out.
• The votes are then transferred to respective candidates based on second preferences, increasing total first preferences accordingly.
• If a candidate reaches the electoral quota, they win; otherwise, another counting round is conducted.

Proportional Representation in Presidential Elections

• Proportional representation in the election of the President ensures representation of the people of India, the people from the states, the states, and the political reality by ensuring representation of different political bodies.

Criticism of Presidential Elections

• Some experts argue it's not a real proportional representation system because P.R. is typically used where more than one person is elected.
• Elections can occur regardless of MP/MLA seat vacancies or the President's Rule in any state.
• Processes can be politicized, such as the 1969 elections.
• Also there can be too many candidates contesting which may complicate the election along with unequal state representation due to varying legislative assembly sizes.

Impeachment Process (Article 61)

• Impeachment is initiated if the President violates the Constitution, ensuring accountability for any constitutional breach.
• A formal notice period of 14 days is required before initiating impeachment proceedings.
• The notice must be supported by one-fourth of the House members where it originates.
• After the notice period, a resolution to prepare charges is introduced in the first House of Parliament.
• The resolution must outline the specific charges forming the basis of impeachment.
• One House prepares the charges, ensuring a structured approach.
• The other House conducts a detailed investigation to determine the charges' validity.
• After charges are prepared, the resolution must pass in the first House with a two-thirds majority of the total members.
• Once passed, the matter is forwarded to the second House for thorough investigation.
• The second House examines the charges in detail and can conduct a direct inquiry or form a committee/commission to investigate impartially.
• The President has the right to defend against the charges during the investigation.
• The President’s defense is considered before any final decision.
• On the basis of the investigation, the second House can pass a final resolution sustaining the charges through a two-thirds majority.
• Successful passage of this resolution results in the President's impeachment and removal from office.

Powers and Functions of the President

• The President acts on the advice of the Council of Ministers or exercises situational discretion.
• On the advice of the Council of Ministers the executive, legislative, and judicial functions are actioned under normal circumstances.
• During an emergency: only executive and legislative functions.

Powers and Functions of the Governor

• The Governor acts on the advice of the Council of Ministers or exercises discretion (constitutional and situational).
• During the President's Rule in a state, the Governor acts on discretion, executing both executive and legislative functions.

Executive Powers/Functions: President

• Article 77 enables the President to create rules for business transactions.
• The Government of India Allocation of Business Rules, 1961, specifies ministries/departments and allows new ministries via executive order.
• It defines subject matters allocated to ministries/departments, establishing the Prime Minister as the political head of the Cabinet Secretariat.
• The Government of India (Transaction of Business) Rules, 1961, specifies matters referred to the Cabinet, the details of which are then referred to the President, Prime Minister, and ministers.
• The Rules provide a mechanism for inter-ministerial issue resolution and detail Cabinet committees.
• The Rules specify the documents that can be requested by the Prime Minister, ministers, or Finance Minister from other ministries.

Executive Powers/Functions: Governor

• Article 166 has similar provisions as Article 77 for state governments.
• Enablement of the Government of [State Name] Allocation of Business Rules, and Government of [State Name] Transaction of Business Rules.
• Under Article 78, the President takes cognizance of communications from the Prime Minister or may seek such communication.
• The Prime Minister must inform the President of all Council of Ministers' decisions relating to country administration and legislative proposals.
• The Prime Minister may furnish this information on his own or when specifically asked by the President.
• If requested, the President can direct that any matter decided by a Minister, but not considered by the Council, be submitted for review, which appears to be discretionary.

Powers Under Article 167 (Governors)

• The Chief Minister of each state must communicate all Council of Ministers' decisions on state administration and legislative proposals to the Governor.
• They have a duty to provide any information on state administration or legislative proposals when requested by the Governor.
• If required, the CM must submit any matter on which a Minister decided, but which the Council hasn't reviewed, for the Council's consideration.

Rule-Making Powers

• The President can make rules regarding the appointment of officers in the Supreme Court and the Administration of central universities
• The President can also decide on the strength of UPSC members, Recruitment and service conditions for Union services, the Appointment of ad hoc judges for the Supreme Court and High Courts, Administrative powers of the CAG, Rules with respect to sessions of Parliament.
• The Governor can make rules about the Appointment of officers in High Courts, determining the strength of the State Public Service Commission, administration of state universities (acting as Chancellor), and recruitment and service conditions for state services.

Appointments by the President

• The President appoints the Prime Minister, other Ministers, Judges of the Supreme Court and High Courts, the Comptroller and Auditor General (CAG), the Attorney General of India, Governors of states, Ambassadors and diplomats, and Members of constitutional and statutory commissions.

Appointments by the Governor

• The Governor appoints the Chief Minister, other Ministers, District Judges, the Advocate General of the State, and Members of constitutional and statutory commissions at the state level.

Removal by the President

• The President can remove the Prime Minister, other Ministers, Governors of states, and Judges of the Supreme Court and High Courts (based on a special address by both Houses of Parliament).
• Removal of the Chief Election Commissioner of India, State Election Commissioner, and Members of the UPSC, SPSC, and National & State Human Rights Commissions upon inquiry by the Supreme Court.
• The President can also action the removal of Members of the National Commissions for SCs, STs, Minorities, Women, and Backward Classes, on the Central Government's advice, based on prescribed reasons.

Removal by the Governor

• The Governor can remove District Judges (in consultation with the High Court) and Members of the State Commissions for SCs, STs, Minorities, Women, and Backward Classes, on the State Government's advice, based on prescribed reasons.