This article is written by Prabha Dabral from IMS Unison University, Dehradun. The article discusses the 11th Amendment of the Indian Constitution, which deals with Vice Presidential elections in India. It covers all the details about the Vice President and his election procedure.  

This article has been published by Sneha Mahawar.​​ 

Introduction  

Just like any other written constitution, the Indian Constitution also allows for its amendment. However, there are some limitations to that, i.e., the provisions that form the basic structure of the constitution can never be amended. Constitutional amendments are necessary to adjust the provisions according to the changing conditions of society. Article 368 under Part XX of the Constitution of India, 1949, deals with the procedures regarding the power of Parliament to amend the Constitution. 

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The Constitution of India can be amended by way of addition, variation, or repeal of any provision in accordance with the procedure laid down for this purpose. One of the important amendments is the 11th Amendment of the Indian Constitution, passed in the year of 1961. This amendment has changed the procedure for the election of the Vice President. Before the 11th Amendment, a Vice President was to be elected through a joint parliamentary meeting of the two houses, Lok Sabha and  Rajya Sabha. But after the 11th amendment to the Constitution, the Vice President is now elected through an electoral college. 

Recently, the election for the Vice President was held in August 2022 by the Election Commission of India. Through this election, Jagdeep Dhankar became the 14th Vice President of India. His election also followed the same procedure as mentioned in the 11th Amendment. This article gives an overview of all the amendments introduced by the 11th Amendment of the Constitution.

The objects of the 11th Amendment Act of the Indian Constitution

The Indian Constitution laid down the procedure regarding the Vice Presidential election under Article 66. According to it, a vice President has to be elected by the members of both houses of Parliament through a joint meeting. But with time, the requirement that the members of both houses assemble at a joint meeting seemed to be totally unnecessary. There were practical difficulties, as joint meetings were not possible at all times. 

Moreover, Article 54 of the Constitution of India states that the President is elected through an electoral college that consists of members of both houses of Parliament and the legislative assemblies of the state. However, it is quite possible that the elections for both houses might not get completed before the presidential or vice presidential elections. Hence, the election of the President, as well as the Vice President could be challenged on the ground of vacancy in the electoral college.

Therefore, an amendment to Article 66 and Article 71 was proposed by A.K. Sen in the Bill in Lok Sabha to achieve these objectives. As per the amendment, the Vice Presidential election procedure was changed, and the mandatory clause requiring members of both houses to vote in a joint meeting was removed. In addition, a new clause (4) was added to Article 71 to ensure that the Presidential and Vice Presidential elections can not be challenged on the ground of vacancy in any of the houses.

The Amendments

Election procedure of the Vice President 

The 11th amendment dispensed with the earlier requirement for the Vice Presidential election. It removed the compulsory clause that requires the members of both houses of Parliament to assemble through a joint meeting.

The amended Article 66 (1) provides that a Vice President shall be elected through an electoral college consisting of members of both houses of the Parliament. 

Disputes relating to the election of a President or Vice President

It is quite a possibility that the elections to the two Houses of Parliament might not be completed before the President or Vice President is elected. It can happen in cases where there is a vacant seat in any of the houses, in cases where the president’s rule is imposed in a particular state, or for any other reason for which an election has not been completed in either of the houses. 

This can delay the election of the President or Vice President. This difficulty was removed by the insertion of a new clause (4) into Article 71 of the Indian Constitution. As per Article 71(4) of the Indian Constitution, both the election of President and Vice President cannot be challenged on the ground of any vacancy in the electoral college. 

Role of the Vice President in India 

The Vice President of India is a government figure who serves beneath the President of India. The post of Vice President is mentioned under Article 63 of the Constitution of India. He is in the second greatest political position, the first being the position of President of India. He serves for a term of 5 years and can continue to hold his office until his successor assumes the office. He can also remain in the office irrespective of the expiry of the term. Being the ex officio chairperson of the Rajya Sabha, he is also an official of the Parliament of India. 

The Vice President’s job is complementary to that of the President. When the President is not available, the Vice President fills in to discharge the duties. This power to determine whether the President is able to discharge his duties or not is understood to be decided by the President himself. And when he should resume his duties is also up to the President.

When the Vice President fills the vacant seat of the President in his absence, he gets the emoluments of the President for that period. During this time, the seat for the Chairman of the Rajya Sabha is not left vacant either. And the Deputy Chairman of the Rajya Sabha acts as its Chairman. This provision is given under Article 91 of the Indian Constitution.

In case the offices of both the President and the Vice President are vacant due to death, resignation, removal, or any other reason, the Chief Justice of India (CJI) acts as the President. The perfect example of this was Justice Hidayatullah. He got to serve in all three great constitutional positions i.e. CJI, Vice President, and President. While he was serving as the CJI, the then President, Zakir Husain, suddenly died in May 1969. Then the Vice President of India, Mr. V.V. Giri became the acting President. Soon, he resigned from office to become a candidate in the 1969 Presidential election. Justice Hidayatullah then served as the President of India for a short period from 20 July to 24 August.

In case, the CJI is also absent, the senior-most judge of the Supreme Court acts as president.  

Eligibility criteria

To be elected as the Vice President of India, the candidate must fulfil the following conditions.

  1. Must be a citizen of India;
  2. Must have completed the age of 35 years;
  3. Must be qualified for the election of Rajya Sabha;
  4. Must not hold any office of profit under any government in India, any local authority, or any other public authority.
  5. Must not be a member of either of the two houses of Parliament and also of the house of the State legislature. If any such person, who is a member of any house, is elected as the Vice President, then he must vacate his seat in that house on the date he enters upon his office as the Vice President.

Further, for the nomination of a person for the election to the Vice President’s office, he must be subscribed to by at least 20 electors as proposers and 20 electors as seconders. Moreover, every candidate is supposed to make a deposit of Rs. 15,000 in the Reserve Bank of India (RBI).

Powers and functions of the Vice President

Ex officio chairman of Rajya Sabha

He acts as the ex officio chairman of the Rajya Sabha. Here, the term “ex officio” means “by virtue of.” It means that the candidate elected as Vice President will automatically become Chairman of the Rajya Sabha. Hence, there is no other method for the election of the chairman of the Rajya Sabha. 

Acts as the President in case of any vacancy

The Vice President acts as the President of India when there is a vacancy in the office of the President. This vacancy can occur due to resignation, impeachment, death, or any other reason. He acts as the President for a maximum period of only 6 months. A new President has to be elected within this period. Moreover, in case the President is unable to discharge his functions due to illness, absence, or any other cause, the Vice President may discharge his functions until the President resumes his office.

His superfluous Highness

The literal meaning of the word “superfluous” is more than is needed or desired. In the case of the Vice President, the Constitution of India does not grant him any special functions. For this reason, he is referred to as ‘His Superfluous Highness’ by constitutional scholars.

However, he plays a very important role in leading the Rajya Sabha as its chairman. 

The election of the Vice President 

The provisions regarding the Vice President in our constitution are derived from the Constitution of America. Article 324 of the Indian Constitution deals with the direction and control of the conduct of elections to the Vice President’s office. This article is read along with the Presidential and Vice-Presidential Elections Act, 1952, and the Presidential and Vice-Presidential Election Rules, 1974. 

The Vice President is elected indirectly through a single transferable vote. The state legislature has no part in his elections. The electoral college that elects the Vice President consists of members of both houses of Parliament. It includes all the members, both elected and nominated. 

Though the election procedure of the Vice President and the President is quite similar, the electoral college of both of them differs in the members constituting it. In other words, they both are elected through an electoral college, but the only difference is the composition of the electoral college. The electoral college that elects the President is different from the one that elects the Vice President. The difference is as follows:

  1. In the Vice Presidential elections, the electoral college consists of both elected and nominated members of the 2 houses of parliament. But in the Presidential elections, the nominated members are not part of it. 
  2. Unlike the election of the Vice President, the states have a role to play in the Presidential elections. The President’s electoral college consists of elected members of the state legislative assemblies too.

The election of the President and the Vice President can never be challenged on the ground of vacancy in the electoral college. Their elections are not affected by any vacancies in either house of Parliament. If the Supreme Court declares their election to be void, then the acts done by the President or the Vice President before the date of such a court decision are not invalidated.

The procedure for the election of the Vice President

Here is the step-by-step process of the election of the Vice President:

Nomination

The election procedure begins with the process of nomination filed by the interested candidates. The nomination process is supposed to be completed before the last date for filing the nominations. Moreover, the process is required to be done prior to the expiry of the term of office of the Outgoing Vice President. For example, the former Vice President, M Venkaiah Naidu’s term of office was ending on August 10, 2022. However, the election process for the 14th Vice President began on July 5th, and July 19th was the last date for filing the nominations.

Election Commission

It is mandatory for the Election Commission to ensure that the election to the office of the Vice President of India is free and fair. The Commission has to take all the necessary steps to discharge all its constitutional responsibilities.

The election

According to Article 66 of the Indian Constitution, a vice president is elected through an electoral college. In his electoral college, the elected members as well as the nominated members of both houses take part in it. For example, for the 14th Vice Presidential election of 2022, the electoral college consists of the following members:

  • The total number of elected members of the Rajya sabha was 233;
  • The total number of nominated members of the Rajya sabha was 12;
  • The total number of elected members of the Lok sabha was 543.

The principle of election used here is “proportional representation.” The election is held in accordance with this system using the single transferable vote. And the voting is done through a secret ballot. 

Here, the term “proportional representation” refers to a type of electoral system in which subgroups of an electorate are proportionately reflected in the reflected body. In other words, the parties gain seats in proportion to the number of votes cast for them. For example, in the first round of counting ‘X’ got 35% votes, ‘Y’ got 30% votes and ‘Z’ got 25% votes. Since Z got the least number of votes, he will be eliminated. His votes then will be transferred to the other candidates based on who the second preference was in each of the votes. This goes on until one candidate gets the majority.

Requirements for the election of Vice President 

  • The election procedure for the next Vice President is supposed to be completed before the former Vice President vacates his seat due to the expiration of his or her term. This provision is mentioned under the Article 68 of the Indian Constitution.
  • The notification for the election of the Vice President is to be issued on or before the 60th day prior to the expiry of the office term of the outgoing Vice President.
  • The returning officer appointed is the secretary general of either of the houses of parliament by rotation. He is appointed to conduct the Vice Presidential elections. The returning officer’s job is to issue public notice about the intended election in a prescribed form. This is done to invite nominations from the candidates.
  • Any qualified person standing for the election to the office of vice president is required to be nominated by 20 MPs as proposers and 20 MPs as seconders.
  • Nomination papers are then presented to the returning officer within the time and date specified in the public notice.
  • A maximum number of four nomination papers by or on behalf of a candidate can be presented to or accepted by the returning officer.
  • The candidate who is seeking the election as the vice president is required to make a security deposit of Rs. 15,000/-.
  • The nomination papers are examined by the returning officer on the specified date in the presence of the candidate. This is done for the preauthorization of his/her proposers and seconders.
  • If any candidate wishes to withdraw his candidature, he or she can do so by giving a notice in writing in a prescribed manner. The notice must be delivered to the returning officer before the expiry of the specified time.
  • According to Rule 8 of the Presidential and Vice Presidential Election Rules, 1974, the polls for the election are to be taken in the Parliament House.
  • The value of the vote of each member of the electoral college would be the same i.e. one.
  • There is no concept of open voting and the elections are tightly monitored.
  • The votes are recorded in the international form of the Indian numerals or the Roman form. It should not be indicated in words.

Steps for counting votes 

  • The total number of first-preference votes which are acquired by each of the candidates is ascertained.
  • These ascertained numbers are then added up. The total of which is divided by 2 and then one is added to the quotient part and the remainder is considered disregarded. 
  • The number obtained after the calculation is considered as the quota which is sufficient for the candidate to secure his return at the election.
  • If the total number of votes which are credited to the candidate is equal to or greater than the quota, then that candidate is declared as elected.

Electoral college for the election of Vice President 

The electoral college that elects the Vice President consists of the following members:

  • Elected members of the Rajya Sabha
  • Nominated members of the Rajya Sabha
  • Elected members of the Lok Sabha

This electoral college is not supposed to be challenged on the ground that the total members of the electoral college were not present( i.e. there was the existence of any vacancy among the members of the electoral college). This can not act as a stoppage to the ongoing Vice Presidential election.

Judicial pronouncements 

NP Ponnuswami v. Returning officer, Namakkal constituency (1952)

Facts

In this case, the appellant had filed for the nomination for election to the Madras Legislative Assembly. Later, his nomination paper was rejected by the returning officer. The appellant then moved the High Court of Madras under Article 226 of the Constitution, praying for the writ of certiorari to quash the order of the returning officer.  The  Court rejected the petition on the ground that the Court had no jurisdiction to interfere with the order of the returning officer. 

The appellant then filed for the appeal in the Supreme Court with the view that he was entitled to a writ of certiorari in the circumstances of the case. 

Issue

Whether questioning the action of the returning officer can be said to be comprehended within ‘questioning an election’?

Judgment

The Supreme Court dismissed the petition and upheld the High Court’s order that it had no jurisdiction to entertain petitions regarding the decision of the returning officer.

It was held that it has always been of primary importance that the elections be concluded as soon as possible. And all the disputes arising out of elections should be postponed till after the elections are over. This is done so that elections may not be unduly delayed and that no election shall be called into question except by an election petition.

Any irregularities that are committed while the election is in progress, should be brought up before a special tribunal by means of an election petition. It should not be made the subject of any dispute before any court while the election is in progress.

The Court further held that it is a well-recognized principle that an election cannot be held to ease an individual’s grievances. It was observed that, as per Article 62 of the Indian Constitution, the election of the president must be completed within a fixed time. And this is a mandatory provision.

Narayan Bhaskar Khare v. The Election Commission Of India (1957)

Facts

In this case, two petitions were filed to restrain the election of the President. It was contended by the parties that the general elections in Himachal Pradesh and Punjab had not yet been held. Since they were not completed, there was a vacancy in the electoral college that elects the President. Hence, the election commission should refrain from taking the poll for the election of the President until the general elections are completed.

It was pleaded that the Presidential elections should be on hold because the electoral college that elects the President and the Vice President is incomplete. 

Issues

  1. Whether there is any provision that indicates how and when a dispute regarding Presidential and Vice Vice Presidential elections should be decided by the Court?
  2.  Whether the Presidential elections be put on hold until the general elections are completed?

Judgment

The Supreme Court rejected the petitions. It was held that the election procedure for the President or the Vice President should not be stopped, irrespective of the fact that the electoral college is incomplete. 

And that the election of the President and the Vice President should be completed before the expiry of the term of the current President or Vice President. This is a mandatory provision that should be kept in mind. 

Once the President or the Vice President is elected, he or she can be challenged through an election petition. Moreover, their election can only be challenged through an election petition.

Comparing the Vice President of India to the Vice President of the USA

Though the office of the Vice President of India is modelled after that of the American Vice President, there are certain factors upon which they differ. 

Similarity

In India, the Vice President acts as the ex officio chairman of the Rajya Sabha (i.e., the upper house of the Indian legislature). Similarly, the American Vice President acts as the chairman of the Senate (i.e., the upper house of the American legislature).

The Indian Vice President, being the chairman of the Rajya Sabha, has certain powers and functions. In this way, he mirrors the American Vice President, as in the United States of America (USA), the Vice President also acts as the Chairman of the Senate.

Difference

The Vice President in America can succeed to the Presidency when the office of the president falls vacant and remains President for the unexpired term of his predecessor.

In India, on the other hand, in case the office of the President falls vacant, the Vice President assumes the office but it is not for the unexpired time. He merely serves as the acting President until the new President takes charge. In India, the office of the Vice President was created only to maintain the continuity of the Indian state.

Conclusion 

The Vice President of India is an important governmental executive who manages the work and the activities of the President if required. One can say that he plays a very important role. Hence, his elections cannot be obstructed under any circumstances. Keeping this in mind, the 11th Amendment was introduced, as discussed in this Article.

In brief, the 11th Amendment Act is also known as the Constitutional Act of 1961. It comprises amendments of Article 66(1) and Article 77(4) of the Indian Constitution. It eradicates the unnecessary requirement of joint setting and gives a new procedure to elect the Vice President of India.

Frequently Asked Questions (FAQs) 

Who is called the President in India?

In India, the head of state is referred to as the president. In general, he is the leader of the country and the essential manager of the nation.

The post of Vice President is taken from which Constitution?

It has been taken from the Constitution of the United States.

How is the election of the Vice President different from that of the President?

Their elections differ only in the members of their electoral college. The electoral college of the Vice President consists of all the elected as well as nominated members of both houses of Parliament. But the same is not true of elections for the president. The nominated members of the Parliament cannot vote in their elections.

Who is the current Vice President of India?

The 14th and current Vice President of India is Jagdeep Dhankar.

Who elects the Vice President of India?

He/she is elected by an electoral college consisting of members of both the Rajya Sabha and Lok Sabha.

References 

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