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As per news reports, the union government has filed a Presidential Reference in relation to the 2G judgment. In this judgment the Supreme Court had cancelled 122 2G licences granting access to spectrum and had ordered their re-allocation by means of an auction. It also held that use of first cum first serve policy (FCFS) to allocate natural resources was unconstitutional. It had held that natural resources should be allocated through auctions. As per the news report, the Presidential Reference seeks clarity on whether the Supreme Court could interfere with policy decisions. This issue has been discussed in a number of cases. For instance, the Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain[1] held that Courts cannot act as an appellate authority to examine the correctness, suitability and appropriateness of a policy. It further held that Courts cannot act as advisors to the executive on policy matters which the executive is entitled to formulate. It stated that the Court could review whether the policy violates fundamental rights, or is opposed to a Constitutional or any statutory provision, or is manifestly arbitrary. It further stated that legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. In Suresh Seth vs. Commissioner, Indore Municipal Corporation[2] a three judge bench of the Court observed that, “this Court cannot issue any direction to the Legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power or authority to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.” In the present case it may be argued that whereas the Court was empowered to declare a policy such as FCFS as unconstitutional, it did not have the jurisdiction to direct auctioning of spectrum and other natural resources. The Presidential Reference may conclusively determine the Court’s jurisdiction in this regard. However, it has been urged by a few experts that this Presidential Reference amounts to an appeal against the decision of the Court. They have argued that this could be done only through a Review Petition (which has already been admitted by the Court). The advisory jurisdiction of the Court invoked through Presidential References, is governed by Article 143 of the Constitution. Under Article 143 of the Constitution of India, the President is empowered to refer to the Supreme Court any matter of law or fact. The opinion of the Court may be sought in relation to issues that have arisen or are likely to arise. A Presidential Reference may be made in matters that are of public importance and where it is expedient to obtain the opinion of the Supreme Court. The Court may refuse to answer all or any of the queries raised in the Reference. A Presidential Reference thus requires that the opinion of the Court on the issue should not have been already obtained or decided by the Court. In the Gujarat Election Case[3] the Supreme Court took note of Presidential References that were appellate in nature. Thus, a Presidential Reference cannot be adopted as a means to review or appeal the judgment of the Supreme Court. Against judgments of the Court the mechanisms of review is the only option. This position was also argued by Senior Advocate Fali S. Nariman in the Cauvery Water Case[4], where the Court refused to give an opinion. Whether the Court had the authority to determine a policy, such as FCFS, as unconstitutional is not disputed. However, there are conflicting judgments on the extent to which a Court can interfere with the executive domain. It would be interesting to see whether the Court would give its opinion on this issue. In the event it does, it may bring higher level of clarity to the relationship between the executive and the judiciary.
[1] AIR 2007 SC 1640
[2] AIR2006SC767
[3] (2002) 8 SCC 237
[4] (1993) Supp 1 SCC 96(II)
Mr. Ramnath Kovind completes his tenure as President in July. With the Election Commission of India expected to notify the election dates this week, we look at how India will elect its next President.
As the Head of the State, the President is a key part of Parliament. The President calls the two Houses of Parliament into session on the advice of the Council of Ministers. A Bill passed by the Lok Sabha and Rajya Sabha does not become a law unless assented to by the President. Further, when Parliament is not in session, the President holds the power to sign a law with immediate effect through an Ordinance.
Who elects the President?
The manner of election of the President is provided in Article 55 of the Constitution. Members of Parliament and Members of Legislative Assemblies (MPs and MLAs) including elected representatives from the Union Territories (UTs) of Delhi and Puducherry form the electoral college, which elects the President. At least 50 elected representatives must propose a candidate, who must then be seconded by 50 other electors to run for the President's office. Members of Legislative Councils and the 12 nominated members of Rajya Sabha do not participate in the voting process.
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The history behind having proposers and seconders To discourage the practice, candidates had to secure at least 10 proposers and seconders each to contest the elections from the 1974 election onwards. A compulsory security deposit of Rs 2,500 was also introduced. The changes were brought in through an amendment to the Presidential and Vice-Presidential Act, 1952. In 1997, the Act was further amended to increase the security deposit to Rs 15,000 and the minimum number of proposers and seconders to 50 each. |
How are the votes calculated?
The Presidential election uses a special voting to tally the votes. A different voting weightage is assigned to an MP and an MLA. The value of each MLA's vote is determined based on the population of their state and the number of MLAs. For instance, an MLA from UP has a value of 208 while an MLA from Sikkim has 7 (see Table 1). Due to a Constitutional Amendment passed in 2002, the population of the state as per the 1971 census is taken for the calculation.
The value of an MP's vote is the sum of all votes of MLAs across the country divided by the number of elected MPs.
How will the numbers look in 2022?
In the 2017 Presidential elections, electors from 31 states and the UTs of Delhi and Puducherry participated. However, in 2019, with the Jammu and Kashmir (J&K) Reorganization Act, the number of states were reduced to 30. The J&K Assembly was dissolved as per the Act and a new legislature for the UT of J&K is yet to be reconstituted. UTs with legislatures were not originally part of the electoral college for the election of the President. The Constitution was amended in 1992 to specifically include the UTs of Delhi and Puducherry. Note that for MLAs from J&K to participate in future Presidential elections, a similar Constitutional amendment would be required to be passed by Parliament.
Based on the assumption that J&K is not included in the 2022 Presidential election, the total number of votes of MLAs in 2022 elections will have to be adjusted. The 87 Jammu and Kashmir MLAs must be removed from the total number of MLAs of 4,120. Jammu and Kashmir’s contributing vote share of 6,264 must also be reduced from the total vote share of 549,495. Adjusting for these changes, 4,033 MLAs will participate in the 2022 elections and the combined vote share of all MLAs will add up to 543,231.
Table 1: The value of votes of elected MLAs of different states at the 2017 Presidential Election
|
Name of State |
Number of Assembly seats |
Population (1971 Census) |
Value of vote of each MLA |
Total value of votes for the state (B x D) |
|
A |
B |
C |
D |
E |
|
Andhra Pradesh |
175 |
2,78,00,586 |
159 |
27,825 |
|
Arunachal Pradesh |
60 |
4,67,511 |
8 |
480 |
|
Assam |
126 |
1,46,25,152 |
116 |
14,616 |
|
Bihar |
243 |
4,21,26,236 |
173 |
42,039 |
|
Chhattisgarh |
90 |
1,16,37,494 |
129 |
11,610 |
|
Goa |
40 |
7,95,120 |
20 |
800 |
|
Gujarat |
182 |
2,66,97,475 |
147 |
26,754 |
|
Haryana |
90 |
1,00,36,808 |
112 |
10,080 |
|
Himachal Pradesh |
68 |
34,60,434 |
51 |
3,468 |
|
Jammu and Kashmir |
87 |
63,00,000 |
72 |
6,264 |
|
Jharkhand |
81 |
1,42,27,133 |
176 |
14,256 |
|
Karnataka |
224 |
2,92,99,014 |
131 |
29,344 |
|
Kerala |
140 |
2,13,47,375 |
152 |
21,280 |
|
Madhya Pradesh |
230 |
3,00,16,625 |
131 |
30,130 |
|
Maharashtra |
288 |
5,04,12,235 |
175 |
50,400 |
|
Manipur |
60 |
10,72,753 |
18 |
1,080 |
|
Meghalaya |
60 |
10,11,699 |
17 |
1,020 |
|
Mizoram |
40 |
3,32,390 |
8 |
320 |
|
Nagaland |
60 |
5,16,449 |
9 |
540 |
|
Odisha |
147 |
2,19,44,615 |
149 |
21,903 |
|
Punjab |
117 |
1,35,51,060 |
116 |
13,572 |
|
Rajasthan |
200 |
2,57,65,806 |
129 |
25,800 |
|
Sikkim |
32 |
2,09,843 |
7 |
224 |
|
Tamil Nadu |
234 |
4,11,99,168 |
176 |
41,184 |
|
Telangana |
119 |
1,57,02,122 |
132 |
15,708 |
|
Tripura |
60 |
15,56,342 |
26 |
1,560 |
|
Uttarakhand |
70 |
44,91,239 |
64 |
4,480 |
|
Uttar Pradesh |
403 |
8,38,49,905 |
208 |
83,824 |
|
West Bengal |
294 |
4,43,12,011 |
151 |
44,394 |
|
NCT of Delhi |
70 |
40,65,698 |
58 |
4,060 |
|
Puducherry |
30 |
4,71,707 |
16 |
480 |
|
Total |
4,120 |
54,93,02,005 |
|
5,49,495 |
Source: Election Commission of India (2017); PRS.
The value of an MP’s vote correspondingly will change from 708 in 2017 to 700 in 2022.
Value of one MP's vote = Total value of all votes of MLAs = 543231 = 700
Total number of elected MPs 776
Note that the value of an MP’s vote is rounded off to the closest whole number. This brings the combined value of the votes of all MPs to 543,200 (700 x 776).
What is the number of votes required to win?
The voting for the Presidential elections is done through the system of single transferable vote. In this system, electors rank the candidates in the order of their preference. The winning candidate must secure more than half of the total value of valid votes to win the election. This is known as the quota.
Assuming that each elector casts his vote and that each vote is valid:
Quota = Total value of MP’s votes + Total value of MLA’s votes + 1
2
= 543200 + 543231 +1 = 1086431 +1 = 543,216
2 2
The anti-defection law which disallows MPs from crossing the party line does not apply to the Presidential election. This means that the MPs and MLAs can keep their ballot secret.
The counting of votes takes place in rounds. In Round 1, only the first preference marked on each ballot is counted. If any of the candidates secures the quota at this stage, he or she is declared the winner. If no candidate secures the quota in the first round, then another round of counting takes place. In this round, the votes cast to the candidate who secures the least number of votes in Round 1 are transferred. This means that these votes are now added to the second preference candidate marked on each ballot. This process is repeated till only one candidate remains. Note that it is not compulsory for an elector to mark his preference for all candidates. If no second preference is marked, then the ballots are treated as exhausted ballots in Round 2 and are not counted further.
The fifth Presidential election which elected Mr. VV Giri is the only instance when a candidate did not secure the quota in the first round. The second preference votes were then evaluated and Mr. Giri secured 4,20,077 of the 8,36,337 votes and was declared the President.
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The only President of India to win unopposed |
