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BOOK: A MODEL OF NEW CONSTITUTION FOR INDIA
The Executive
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PART-V

The Executive

 (Articles 27 to 102 should be in place of Articles 52 to 123 of the existing Constitution)

29.          The President of India

        There shall be a President of Bharat.

 

30.          Manner of election of President.

(1)     As far as practicable, there shall be uniformity in the scale of representation of the different State at the election of the President.

(2)     For the purpose of 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 following manner: -

(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, as ascertained at the last census, 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 in sub-clause (a) shall be further increased by one;

(c)     each elected member of either House of Parliament shall have such numbers of votes as may be obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the States under sub-clauses (a) and (b) 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.

(3)     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.

 

 

31.                Qualification for election as President.

(1)     No person shall be eligible for election as President unless he-

(a) is a Citizen of origin as defined under Article 4 clause (1);

(b) is or was a member of Parliament at least for six years, or holds office of Vice-President;

(c) is nominated by a recognised national political party through transparent democratic process;

(2)     A person shall not be eligible for election as President if during five years before the date of nomination paper he holds office of a Judge at Supreme Court or any of the High Court or any office of profit under the State. For the purpose of this Article the word State shall be the same meaning as it is under Part III;

(3)     A person shall not be eligible for reelection as President for second terms;

(4)     A person ever charge sheeted, whether convicted or not, in any criminal proceeding, shall not be eligible for election as President.

 

32.          Terms of office of President.

(1)           The President shall hold office for a term of four years from the date on which he enters upon his office;

Provided that-

(a)     the President may, by writing under his hand addressed to the Vice-President, resign his office;

(b)     the President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in Article 34.

(c)     The President shall notwithstanding the expiration of his terms, shall continue to hold office until his successor enters upon his office.

 

33.          Oath or affirmation by the President.

Every President and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the senior most Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say-

I, A.B., do (swear in the name of the God /

solemnly affirm) that I will faithfully, execute the office of President (or discharge the functions of the President) of Bharat and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of Bharat."   

 

34.                Conditions of Presidents office.

(1)           The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State, be elected President, he shall be deemed to have vacated his seat in that House on the date of his election as President.

(2)           The President shall not hold any other office of profit.

(3)           The President shall be entitled without payment of Rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined in accordance with the principles laid down by law made by Parliament, upon recommendations made by the Law Commission of Bharat, prepared after inviting suggestions from the people of the country.

(4)           Until such determination is made, the emoluments and allowances of the President shall be continued as it were prevailed prior to commencement of this Constitution.

(5)     The emoluments and allowances of the President shall not be diminished during his term of the office.

(6)     The person retires from the office of the President, shall be entitled to such emoluments, allowances and privileges as may be determined in accordance with the principles to be laid down in the same law made under clause (3).

(7)     The person retires, removed or resigned from the office of the President, shall not entitled to any other assignment, detrimental to the office of the President. 

 

35.          Powers of the President.

(1)                 The President shall appoint the persons holding Constitutional offices, in accordance with the provisions provided under the respective provision of the Constitution.

(2)                 The President shall appoint Chief Justice and other Judges of Supreme Court and High Courts, under the advice from National Judicial Commission, under the respective provision.

(3)                 The Vice President, Prime Minister, Chief Justice of Bharat, Chairman of National Judicial Commission, Speaker of Lok Sabha, other members of Council of Ministers of Bharat, Chairman of National Law Commission, Chief Election Commissioner of Bharat and Comptroller and Auditor-general of Bharat shall take and subscribe oath or affirmation before the President or in his absence before Acting-President, according to the form set out for the purpose in the Constitution, before entering in respective office.

(4)             The President shall give his assent on a Bill, sent him after passed by both Houses for assent, or sent it back, with reasons in writing, for reconsideration to respective House of Parliament, within ten days from the date of receipt of such law. Otherwise, such Bill automatically enacted as a Law and thereafter no such assent would be required from the President.

(5)     The executive power of the Government of Bharat headed by the Prime Minister shall be vested in the President, and shall be exercised by the Government in accordance with this Constitution and law.

(6)     Without prejudice to the generality of the other provisions, the supreme command of the Defence Forces of the Bharat shall be vested in the President and the exercise thereof shall be regulated by law, and nothing in this clause shall be deemed to transfer to the President any function conferred by any law on the Government of Bharat or any State Government or any other authority.

(7)     The President shall have powers, even without advice from or consultation with the Cabinet, to send messages to either House of Parliament through Speaker or Chairman, as the case may be, whether with respect to a Bill then pending in Parliament or otherwise, and a House to which any message is so sent shall with all convenient despatch consider any matter required by the message to be taken into consideration.

(8)     The President shall exercise his functions and act, other than this article, under the advice of Council of Ministers headed by the Prime Minister, appointed under the respective provision of the Constitution. President (not Acting 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.

(9)     The President shall have the powers to grant pardons reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of death, as per rules and regulations to be notified in this respect by the President in consultations with the National Judicial Commission.

(Provided that President shall not use such powers, where person sentenced, has made false statement before any Court of law or court-martial.)

(Provided also that such powers of the President shall not affect the powers of the Governors and governments, in that respect.)

(10)  Nothing in this article shall prevent Parliament from conferring by law functions on authorities, other than President.

 

36.                Procedure for impeachment or removal of the President.

(1)       When a President is to be impeached for charges of corruption, false affirmation of oath, the charges shall be preferred by Lok Sabha, contained in a resolution which has been moved after at least fourteen days notice in writing signed by not less than one-forth of the total number of members of the Lok Sabha has been given of their intention to move the resolution, and such resolution shall be passed by a majority of not less than two-thirds of total membership of the Lok Sabha.

(2)       When a Charge has been so preferred by the Lok Sabha, the Rajya Sabha shall investigate the charge or cause to be investigated by the Supreme Court and the President shall have the right to appear through his Counsel or otherwise and to be represented at such investigation.

(3)   If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total membership of the Rajya Sabha declaring that the charge preferred against the President has been sustained, such resolution shall have the effect of removing the President from his office as from the date and time on which the resolution is so passed.

(4)   A criminal complaint can be lodged against any person holding office of the President, before the Supreme Court of Bharat;

(i)       Supreme Court, only after preliminary satisfaction, shall admit such complaint with regards to any criminal offence defined under the criminal law;

(ii)     after preliminary satisfaction, Supreme Court shall ask to President to present his Statement, on such complaint;

(iii)    after going by the complaint and Statement of the President, Supreme Court may forward such complaint to a Commission comprised of Chief Justices of three High Courts to ascertain true facts, with the help of any investigating agency;

(iv)   Commission shall submit its report to Supreme Court;

(v)     if report says that the person holding the office of the President has committed the offence referred in the complaint, Supreme Court shall forward its recommendations to the President with copies to the both Houses of the Parliament through their respective Presiding Officers;

(vi)   President shall take appropriate immediate decision in accordance with the recommendations of the Supreme Court;

(vii)  after constitution of the Commission by the Supreme Court, entire proceeding in the matter shall be transparent to the public and should be recorded in complete verbatim. .    

 

37.  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 vacancy caused by expiration of the term of office of President shall be completed by the Election Commission of Bharat, before the expiration of the terms.

(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 within 60 days from the date of occurrence of the vacancy; and the person elected to fill vacancy shall be deemed to be elected under article 28 of this Constitution and shall hold office of the President for full term of four years from the date on which he enters upon his office.

(3) During the period between the date and time when vacancy caused under clause (1) and entering in office of the President by the person so elected under clause (2), the Vice-President of Bharat shall function and act as Acting President of Bharat, with all powers of the President.

(4) Even if the office of the Vice-President is also vacated for the reasons whatsoever, the Chief Justice of Bharat and in his absence senior most Judge of the Supreme Court shall function and act as Acting President of Bharat.

 

38.          The Vice-President of Bharat.

      There shall be a Vice-President of Bharat.

 

39.                Qualifications for election as to Vice-President.

(1)           No person shall be eligible for election as Vice-President unless he-

(a) is a Citizen of origin as defined under Article 4 clause (1);

(b) is or was a member of Parliament at least for three years;

                (c) is nominated by a recognised national political party through democratic transparent process;

(2)           A person shall not be eligible for election as Vice-President if during five years before the date of nomination papers, he holds office of a Judge at Supreme Court or any of the High Court or equivalent to thereof any office of profit under the State. For the purpose of this Article the word State shall be the same meaning as it is under Part III;

(3)           A person shall not be eligible for reelection as Vice-President for third terms;

(4)           A person ever charge sheeted, whether convicted or not, in any criminal proceeding, shall not be eligible for election as Vice-President.

 

40.    The Vice-President to be ex-officio Chairman of the Council of States.

                The Vice-President shall be ex-officio Chairman of the Council of States and National Law Commission and shall not hold any other office of profit:

Provided that during any period when Vice-President functions and acts as Acting President, he shall not perform the duties of the office of the Chairman of the Council of the States and Law Commission of Bharat.

 

41.   Election of Vice-President.

(1) The Vice-President shall be elected by the members of an electoral college consisting of the members of both Houses of Parliament, in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be secret ballot.

(2)The Vice-President shall not be a member of either House of Parliament or of a House of Legislature of any State, and if he holds such office of membership, he shall be deemed to have vacated his office on the date and time on which he declared elected as Vice-President of Bharat.

 

42.     Oath or affirmation by the Vice-President

Every Vice-President and every Vice-President acting as Acting President or discharging the functions of the President shall, before entering upon his office, make and subscribe before the President, and in his absence before or in the presence of the Chief Justice of Bharat or, in his absence, the senior most Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say-

I, A.B., do (swear in the name of the God/ solemnly affirm) that I will bear true faith and allegiance to the Constitution of Bharat as established by law and that I will faithfully, discharge the duty upon the office of Vice-President (or discharge the functions of the President as Acting President) of Bharat and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of Bharat."   

 

43.    Term of office of Vice-President.

(1) The Vice-President shall hold office for a term of four years from the date on which he enters upon his office.

Provided that-

(a) Vice-President may, by writing under his hand addressed to the President, resign his office;

(b) Vice-President may be removed from his office by a resolution of the Rajya Sabha passed by a two-third majority of all the members of the Rajya Sabha and agreed to by the Lok Sabha with the similar majority; but no resolution for the purpose of this clause shall be moved unless at least fourteen days notice has been given of the intention to move the resolution by the one-third members of the Rajya Sabha in writing.

(2) The Vice-President, whether or not he functions or act as Acting President or Chairman of Rajya Sabha or Law Commission of Bharat, shall be entitled without payment of Rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined in accordance with the principles laid down by the law made by Parliament, upon suggestions from the Law Commission of Bharat, prepared after inviting suggestions from the people of the country.

(3) Until such determination is made, the emoluments and allowances of the Vice-President shall be continued as it were prevailed prior to commencement of this Constitution.

(4) The emoluments and allowances of the Vice-President shall not be diminished during his term of the office.   

(5) The Vice-President to act as Acting President or to discharge his functions during casual vacancies in the office, or during the absence, of President.

(1)                 In the event of the occurrence of any vacancy in

the office of the President by reason of his death, resignation or removal, or otherwise, the Vice-President shall act as Acting President until the date and time on which a new President elected or fill such vacancy, in accordance with this Constitution.

(2)               When the President is unable to discharge his

functions owing to absence, illness or any other cause, the Vice-President shall discharge his functions as Acting President, until the date on which the President resumes his duties.

(6)     The person retires from the office of the Vice-President, shall be entitled to such emoluments, allowances and privileges as may be determined in accordance with the principles to be laid down in the same law made under clause (2).

(7)     The person retires, removed or resigned from the office of the Vice-President, shall not entitled to any other assignment, detrimental to the office of the Vice-President.

 

44. Time of holding election to fill vacancy in the office of Vice-President and the term of office of person elected to fill casual vacancy.

(1)           An election to fill vacancy caused by expiration of the term of office of Vice-President shall be completed by the Election Commission of Bharat, before the expiration of the terms.

(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 within 60 days from the date of occurrence of the vacancy; and the person elected to fill vacancy shall be deemed to be elected under article 39 of this Constitution and shall hold office of the Vice-President for full term of four years from the date on which he enters upon his office.

(3) During the period between the date and time

when vacancy caused under clause (1) and (2), the Chief Justice of Bharat, and in his absence senior most Judge of the Supreme Court shall function and act as Acting Vice-President of Bharat, with all powers of the Vice-President.

 

45.    Discharge of Presidents functions in other contingencies.

Parliament may make such provision with the majority of seventy-five percentage of all the then members of each House, as it thinks fit for the discharge of the functions of the President in any contingency not provided for in this Chapter. 

 

46.  Matters relating to, or connected with, the election of a President or Vice-President.

(1) All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final.

(2) If the election of a person as President or Vice-President is declared void by the Supreme Court, acts done by him in the exercise and performance of the powers and duties of the office of President or Vice-President, as the case may be, on or before the date of the decision of the Supreme Court shall not be invalidated by mere reason of that decision.

(3)           Subject to the provisions of this Constitution, Parliament may by law regulate any matter relating to or connected with the election of a President or Vice-President.

(4)           The election of a person as President or Vice-President shall not be called in question on the ground of the existence of any vacancy for whatsoever reason among the members of the Electoral College electing him.

 

47.    Election of the Prime Minister and leader of opposition.

(1)           A recognised National Party shall be eligible to pronounce the name of a candidate for the office of Prime Minister, through transparent, appropriate procedure and manner, at least six months prior to the date of General Election for ensuing Lok Sabha. No person shall be illegible to become candidate for the office of the Prime Minister for more than twice.

(2)           All candidates for the office of the Prime Minister, declared by recognised National Parties, under clause (1), automatically shall get elected as member of the ensuing Lok Sabha.

(3)           A candidate for the office of the Prime Minister from a recognised National political party, which party would gets highest votes in favour of all of its candidates, whether they elected or not to Lok Sabha, throughout the country in general election for ensuing Lok Sabha-, shall be elected for the office of Prime Minister for a fix tenure of three years from the date of the constitution of such ensuing Lok Sabha.

(4)           A candidate for the same office from another recognised political party, which gets second highest votes in such general elections for ensuing Lok Sabha, shall be leader of opposition in Parliament for fixed tenure of three years, from the date of the Constitution of such ensuing Lok Sabha.

(5)           In case, death of a person holding office of Prime Minister, the Prime Minister shall be elected amongst the members of Lok Sabha from such recognised National Political Party belonged to demised Prime Minister, for the rest period of respective Lok Sabha, 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, to be conducted and supervised by the Election Commission of Bharat, within 15 days from the demise of a Prime Minister. The person elected as Chairman under clause (6) shall not be eligible to contest election for the office of the Prime Minister, under instant clause.

(6)           Till such election to be held under clause (5), the Cabinet shall elect its Chairman for time being, amongst the members of the Council, who shall function as acting Prime Minister, for 15 days only. During such period, the Cabinet shall not take policy decisions.

 

48.          Council of Ministers.

(1)           There shall be a Council of Ministers headed by the Prime Minister.

(2)           The number of the members of the Council of Ministers and persons appointed with the rank and status of the members of Council of Ministers shall not be more than ten percentage of the total number of the members of the Lok Sabha.

(3)           Any member of Council of Ministers shall hold office during the pleasure of the Prime Minister, irrespective of, whether he is a Member of Parliament or not, but holds all qualification fixed for election to a Member of Lok Sabha or Rajya Sabha.

(4)           Before a Minister enters upon his office, the President shall administer to him the oath of office according to forms set out herein below under Article 47 for the purpose.

(5)           The Parliamentary Party of Prime Minister shall approve appointment of Minister, who is not the member of any House of Parliament, in its general body meeting, within three months from the date of entry in the office as a member of Council of Minister, by secret ballots.

(6)           The salaries, allowances and other benefits for the members of Council of Ministers shall be fixed time to time by the Parliament, in accordance with a mechanism, recommended by Law Commission of Bharat, after inviting suggestions from the Public and in consultation with the National Judicial Commission.  

 

49.  Oath or affirmation by the Members of the Council of Ministers.

Every member of the Council of the Ministers and every person, who acting with the rank and/or status of such minister shall, before entering upon his office, make and subscribe before the President, and in his absence before or in the presence of the Chief Justice of Bharat or, in his absence, the Senior Most Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say-

I, A.B., do (swear in the name of the God/ solemnly affirm) that I will bear true faith and allegiance to the Constitution of Bharat as by law established and that I will uphold the sovereignty and integrity of the country and that I will faithfully and conscientiously execute and discharge my duties as a Member of the Council of Minister (or like wise office with the rank and status of the minister) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of Bharat and that I will not hide anything from the people, unless hiding of anything is not required by law or necessary in the greater national interest."

 

50.    Powers and Duties of Prime Minister and his Council of Ministers.

(1)           The Prime Minister shall communicate to the President all decision of the Council of Ministers relating to the administration of the affairs of the Government of Bharat.

(2)           Prime Minister shall furnish, in writing, such information relating to the administration of the affairs of the Government of Bharat, as the President may call for.

(3)           If the President so requires, Prime Minister shall submit for consideration of the Council of Ministers any matter on which a Minister have taken a decision, has not been considered by the Council.

(4)           The executive power of the Government of Bharat shall be vested in the Council of Ministers, headed by the Prime Minister, and shall be exercised by Prime Minister or any member of his Council of Ministers, either directly or through officers sub-ordinate to them in accordance with the Laws prevailing at the material time.

(5)           The Council of Ministers with the Prime Minister at the head shall have powers to aid and advise the President, in accordance with the Constitution.

(6)           Any decision, taken by the Council of Ministers, under any prevailing law, shall be final.

(7)                President shall act in accordance with the Constitution, upon an advice made by the Council of Ministers.

(8)    The Council of Ministers shall not take any decision against a resolution of its respective political parliamentary party passed by clear majority.

(9)    The verbatim minute of the Meeting of the Council of Ministers shall be recorded.

 

51.          Conduct of the Government of Bharat.

(1)           All executive action of the Government of Bharat, in accordance with the prevailing laws-, shall be expressed and to be taken in the name of the Government of Bharat.

(2)           Orders and other instruments made and executed by the Government of Bharat shall be authenticated in such manner as may be specified in rules to be made by the President, under advise from the Council of Ministers, and in consultation with National Law Commission.

(3)           The President, under advice from the Council of Ministers, shall make rules for the more convenient transaction of the business of the Government of Bharat, and for the allocation among Ministers of the said business.

(4)           Subject to the provisions of this Constitution and other laws, the executive powers of the Government shall extend to the matters with respect to which Parliament has power to make laws; and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of Bharat by virtue of any constitutionally valid treaty or agreement.

(5)           Such powers shall not extend in the matters with respect to which the Legislatures of the States have exclusive powers. 

(6)           The Government of Bharat, shall have the powers to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence-

                (a) in cases where the punishment or sentence is by a Court Martial;

                (b) in cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Government extends;

                (c) in cases where the sentence is a sentence of death;

                       (Provided such powers shall not be used, where person sentenced, has made false statement before any Court of law or court-martial.)

 

52.          Attorney General for India.

(1)                President under advice from Prime Minister shall appoint a person who qualified to be appointed a Judge of the Supreme Court to be Attorney General for Bharat, for a maximum period, which shall not expire after expiry of term of office of Prime Minister.

(2)           It shall be the duty of the Attorney-General to give written advice to the Government of Bharat upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President or Prime Minister, and to discharge the functions conferred on him by or under this Constitution or any other law for time being in force.

(3)           In the performance of his duties the Attorney General shall have right of audience before National Judicial Commission and in all courts in the territory of Bharat.

The Attorney General shall receive such remuneration as the President may determine.   

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