The posts mentioned explicitly in the Constitution of India are known as constitutional posts. Constitutional posts are those whose formation is mandated by the Indian Constitution. The method of their appointment and removal is also mentioned.
The President has the authority to make various constitutional appointments under the Constitution. However, he only exercises this power on the recommendation of the Cabinet.
Posts such as President, Vice-President, Prime Minister, Governor and more are the Constitutional posts of India.
This law note talks about the appointment, oath and removal of the President, Vice President, Prime Minister, Governor, Chief Justice, Attorney General and Comptroller and Auditor General of India.
President
The President is the head of India. The executive power of the Union is vested in the President. The President exercises his executive power as per the Constitution of India or through officers subordinate to him. The appointment, oath and removal of the President are as follows.
Appointment
The President of India is appointed via election, but the people do not directly elect him. According to Article 54 of the Constitution of India, the President is elected by the Electoral College.
The Electoral College consists of the elected members of both Houses of Parliament, i.e., Lok Sabha and Rajya Sabha, and the elected members of the Legislative Assemblies of the state. Further, the nominated members of the Houses of Parliament and Legislative Assemblies do not have voting rights in the election of the President.
Qualifications
Article 58 of the Indian Constitution provides for the qualification of the President of India. The qualifications that a person must possess to be elected to the office of President of India are:
- He must be a citizen of India.
- He must have completed the age of 35 years.
- He must be qualified for election as a House of the People member.
- He must not hold any office of profit under the Government of India or the Government of any state or any local or other authority in control of any of the said Governments.
Oath by the President
An oath of office is an affirmation or commitment a person takes before undertaking the duties of a particular position. As given under Article 60 of the Indian Constitution, the President has to take an oath or affirmation before entering his office. The President takes oath in the presence of the Chief Justice of India and, in his absence, in the presence of the senior-most Judge of the Supreme Court.
Impeachment of the President
Article 61 of the Indian Constitution provides the procedure for removing the President from his office. The President can be removed from his office by impeachment for violating the provisions of the Indian Constitution. The charge for impeachment against him must be initiated by either House of Parliament.
Further, the charge must be in the form of a proposal contained in a resolution signed by not less than 1/4th of the total number of the House members, and it must be moved after a 14-day prior notice is given. Such a resolution must be passed by a majority of at least 2/3rd of the total membership of the House. The other House then investigates the charge. In such an investigation, the President has the right to appear and be represented. After the investigation, if the other House passes a resolution by a 2/3rd majority declaring that the charge is proven, the President will be removed from office as of the day the resolution is passed.
Vice-President
The Vice-President has the second-highest position in the country. He is the ex-officio chairman of the Rajya Sabha. The appointment, oath and removal of the Vice-President are as follows.
Appointment
The provision related to the appointment of the Vice President is given under Article 66 of the Constitution of India. Accordingly, the Vice President is elected indirectly by an Electoral College rather than through a direct election. The Vice President is chosen by secret ballot by members of both Houses of Parliament in a joint session, using a proportional representation system with a single transferable vote.
Further, the Vice President should not be a member of the Lok Sabha or any state’s House of Legislature if a member of either House of Parliament or a State Legislature is elected as Vice President. In such a case, he is regarded as having relinquished his position in that House on the day he assumes office as Vice President.
Qualifications
Article 66 of the Indian Constitution provides for the qualification of the Vice-President of India. The qualifications which a person must possess for being elected to the office of Vice-President of India are:
- He must be a citizen of India.
- He must have completed the age of 35 years.
- He must be qualified for election as a member of the Council of States, i.e. Rajya Sabha
- He must not hold any office of profit under the Government of India or the Government of any state or any local or other authority in control of any of the said Governments.
Oath by the Vice-President
Article 69 of the Constitution of India states that the Vice President has to take an oath or affirmation before entering his office. The President administers the oath of office and secrecy to the Vice President. In his absence, the person appointed by him on his behalf administers the oath to the Vice President.
Removal of the Vice-President
Article 67(b) of the Indian Constitution provides for removing the Vice President from his office. Accordingly, the Vice President can be dismissed by a Rajya Sabha resolution voted by an effective majority (majority of all members at the time) and approved by the Lok Sabha with a simple majority. However, no such resolution may be introduced until at least 14 days prior notice has been given.
Prime Minister
The Prime Minister is the head of the government of India. Although the President is the constitutional head of the state, all the executive power is vested in the Prime Minister and the Council of Ministers chosen by him. The appointment, oath and removal of the Prime Minister are as follows.
Appointment
As provided by Article 75 of the Constitution of India, the President appoints the Prime Minister. The President can barely use his discretion in appointing the Prime Minister because we have embraced English conventions. The Prime Minister can be chosen from the Lok Sabha or the Rajya Sabha members. If he is not a member of either House, he must be elected to either House of Parliament within six months of his appointment.
Oath by the Prime Minister
Article 75 of the Constitution of India states that the Prime Minister must take an oath or affirmation before entering his office. The President administers the oath of office and confidentiality to the Prime Minister in accordance with the forms prescribed in the Third Schedule for this purpose.
Governor
The Governor is the executive head of the state and the executive power is vested in him. However, the real power lies with the Chief Minister of the states and his Council of Ministers. He can exercise his executive power directly or indirectly through his subordinate officers. The appointment, oath and removal of the Governor are as follows.
Appointment
Article 155 of the Constitution of India provides for the appointment of the Governor. Accordingly, the Governor of the state is appointed by the President. He is not directly elected by the people or indirectly elected by a specially formed Electoral College, as is the case with the President. He is the central government’s choice.
Qualifications
According to Article 157 of the Indian Constitution, a person to be appointed as the Governor of the state must possess the following qualifications:
- He must be a citizen of India.
- He must have completed the age of 35 years.
Oath by the Governor
Article 159 of the Constitution of India states that the Governor must take an oath or affirmation before entering his office. The Governor is required to take an oath before entering his office in the presence of the Chief Justice of the High Court or, in the absence of the Chief Justice of the High Court, in the presence of the seniormost Judge of the High Court.
Removal of the Governor
The President can remove the Governor from his office, and the Cabinet has the power to advise the President in this regard. However, the Governor can also resign by writing to the President. Governors cannot be dismissed arbitrarily because the Central Government has lost confidence in them or because the Governor disagrees with their policies and ideology.
Chief Justice
The Chief Justice of India is the highest-ranking officer of the Indian federal judiciary and the Chief Judge of the Supreme Court of India. The appointment, oath and removal of the Chief Justice of India from his office are as follows.
Appointment
The Chief Justice shall be appointed amongst the senior-most judges of the Supreme Court who are considered qualified to hold the position.
Further, according to Article 126 of the Constitution of India, when the office of Chief Justice is vacated, or when the Chief Justice is unable to fulfil the responsibilities of his office due to absence or otherwise, the President may appoint one of the other judges of the court to fill the vacancy (Acting Chief Justice). In short, the Chief Justice of India is appointed by the President of India.
Oath by the Chief Justice
The Chief Justice has to take an oath or affirmation before entering his office. The President administers the oath of office to the Chief Justice.
Removal of the Chief Justice
Article 124(4) of the Constitution of India sets out the procedure for removing a Supreme Court judge, which also applies to Chief Justices. Once designated, the Chief Justice serves until he reaches the age of 65 or six years, whichever comes first. However, the Chief Justice may resign by writing to the President.
Further, the President can also remove the Chief Justice from his office for proven misbehaviour or incapacity. The President’s order can only be passed after it has been addressed to both Houses of Parliament in the same session. The address must be supported by a majority of the total membership of the Houses and by a majority of not less than two-thirds of the members of the Houses present and voting.
Attorney General
The Attorney General of India is the chief legal advisor of the government of India and advises the Union Government on all legal matters. The Attorney General is the government’s primary advocate before the Supreme Court. According to Article 76 of the Indian Constitution, he is the highest law officer in India. The appointment, oath and removal of the Attorney General of India are as follows.
Appointment
The President appoints the Attorney General of India. The person appointed as the Attorney General must be qualified to be appointed as a Judge of the Supreme Court. As the President appoints him, he holds his office at the pleasure of the President.
Qualifications
The qualifications which a person must possess to be elected as Attorney General of India are:
- He must be a citizen of India.
- He must have served as a judge in the High Court of any Indian state for five years or as an attorney for ten years.
- He must also be an eminent jurist in the opinion of the President.
Oath by the Attorney General
Although the Constitution of India does not contain a provision related to the oath of the Attorney General, the President administers the oath or affirmation to the Attorney General of India.
Removal of the Attorney General
The Constitution of India does not provide the procedure or grounds for removing the Attorney General. However, the President can remove him at any time. The Attorney General can also resign from his office by writing to the President of India.
Comptroller and Auditor General
The Comptroller and Auditor General of India is responsible for auditing the national and state government’s receipts and expenditures. He is popularly known as CAG. He is also known as the “Guardian of the Public Purse.” The appointment, oath and removal of the CAG are as follows.
Appointment
The President of India appoints the Comptroller and Auditor General of India. He serves or maintains his office for a period of six years or till he attains the age of 65 years, whichever comes first.
Oath by the CAG
The Comptroller and Auditor General of India must take an oath or affirmation before entering his office. The President of India administers the oath to the CAG.
Removal of the CAG
The President can dismiss the CAG from his position in the same manner a Supreme Court judge is removed. He can be removed on proven misbehaviour and incapacity. Accordingly, the President’s order related to the removal of the CAG can only be passed after it has been addressed to both Houses of Parliament in the same session. The address must be supported by a majority of the total membership of the Houses as well as by a majority of not less than two-thirds of the members of the Houses present and voting.
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