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Yesterday, the BJP announced its candidate for the upcoming election of the President, which is scheduled to be held on July 17. In light of this, we take a look at the manner in which the election to the office of the President is conducted, given his role and relevance in the Constitutional framework.
In his report to the Constituent Assembly, Jawaharlal Nehru had explained, “we did not want to make the President a mere figurehead like the French President. We did not give him any real power but we have made his position one of great authority and dignity.” His comment sums up the role of the President as intended by our Constitution framers. The Constituent Assembly was clear to emphasise that real executive power would be exercised by the government elected directly by citizens. It is for this reason that, in performing his duties, the President functions on the aid and advise of the government.
However, it is also the President who is regarded as the Head of the State, and takes the oath to ‘protect and defend the Constitution and law’ (Article 60 of the Constitution). In order to elect a figure head who would embody the higher ideals and values of the Constitution, the Constituent Assembly decided upon an indirect method for the election of the President.
The President is elected by an Electoral College. While deciding on who would make up the electoral college, the Constituent Assembly had debated several ideas. Dr. B.R Ambedkar noted that the powers of the President extend both to the administration of the centre as well as to that of the states. Hence, in the election of the President, not only should Members of Parliament (MPs) play a part, but Members of the state legislative assemblies (MLAs) should also have a voice. Further, in relation to the centre, some members suggested that the college should comprise only members of the Lok Sabha since they are directly elected by the people. However, others argued that members of Rajya Sabha must be included as well since they are elected by members of directly elected state assemblies. Consequently, the Electoral College comprises all 776 MPs from both houses, and 4120 MLAs from all states. Note that MLCs of states with legislative councils are not part of the Electoral College.
Another aspect that was discussed by the Constituent Assembly was that of the balance of representation between the centre and the states in the Electoral College. The questions of how the votes of MPs and MLAs should be regarded, and if there should be a consideration of weightage of votes were raised. Eventually, it was decided that a ‘system of Proportional Representation’ would be adopted, and voting would be conducted according to the ‘single transferable vote system’.
Under the system of proportional representation, the total weightage of all MLA votes equals the total value of that of the MPs. However, the weightage of the votes of the MLAs varies on the basis of the population of their respective states. For example, the vote of an MLA from Uttar Pradesh would be given higher weightage than the vote of an MLA from a less populous state like Sikkim.
Under the single transferable vote system, every voter has one vote and can mark preferences against contesting candidates. To win the election, candidates need to secure a certain quota of votes. A detailed explanation of how this system plays out is captured in the infographic below.
Sources: Constitution of India; ECI Handbook; PRS.
Coming to the Presidential election to be held next month, the quota of votes required to be secured by the winning candidate is 5,49,452 votes. The distribution of the vote-share of various political parties as per their strength in Parliament and state assemblies looks like this:
Note that the last date for filing nominations is June 28th. In the next few days, political parties will be working across party lines to build consensus and secure the required votes for their projected candidates.
[The infographic on the process of elections was created by Jagriti Arora, currently an Intern at PRS.]
The Protection of Children against Sexual Offences Act, 2012 was passed by both Houses of Parliament on May 22. The legislation defines various types of sexual offences against children and provides penalties for such acts. According to a report commissioned by the Ministry of Women and Child Development in 2007, about 53% of the children interviewed reported some form of sexual abuse. The law has been viewed as a welcome step by most activists since it is gender neutral (both male and female children are covered), it clearly defines the offences and includes some child friendly procedures for reporting, recording of evidence, investigation and trial of offences. However, the issue of age of consent has generated some controversy. Age of consent refers to the age at which a person is considered to be capable of legally giving informed consent to sexual acts with another person. Before this law was passed, the age of consent was considered to be 16 years (except if the woman was married to the accused, in which case it may be lower). Section 375 of the Indian Penal Code, 1860 states that any sexual intercourse with a woman who is below the age of 16 years is considered to be “rape”. The consent of the person is irrelevant. This post provides a snapshot of the key provisions of the Act, the debate surrounding the controversial provision and a comparison of the related law in other countries. Key provisions of the Act
Debate over the age of consent After introduction, the Bill was referred to the Standing Committee on Human Resource Development. The Committee submitted its report on December 21, 2011 (see here and here for PRS Bill Summary and Standing Committee Summary, respectively). Taking into account the recommendations of the Standing Committee, the Parliament decided to amend certain provisions of the Bill before passing it. The Bill stated that if a person is accused of “sexual assault” or “penetrative sexual assault” of a child between 16 and 18 years of age, it would be considered whether the consent of the child was taken by the accused. This provision was deleted from the Bill that was passed. The Bill (as passed) states that any person below the age of 18 years shall be considered a child. It prohibits a person from engaging in any type of sexual activity with a child. However, the implication of this law is not clear in cases where both parties are below 18 years (see here and here for debate on the Bill in Rajya Sabha and Lok Sabha). The increase in the age of consent to 18 years sparked a debate among experts and activists. Proponents of increasing the age of consent argued that if a victim is between 16 and 18 years of age, the focus of a sexual assault case would be on proving whether he or she consented to the act or not. The entire trial process including cross-examination of the victim would focus on the conduct of the victim rather than that of the accused (see here and here). Opponents of increasing the age of consent pointed out that since this Act criminalises any sexual activity with persons under the age of 18 years (even if consensual), the police may misuse it to harass young couples or parents may use this law to control older children’s sexual behaviour (see here and here). International comparison In most countries, the age of consent varies between 13 and 18 years. The table below lists the age of consent and the corresponding law in some selected countries.
| Countries |
Age of consent |
Law |
| US | Varies from state to state between 16 and 18 years. In some states, the difference in age between the two parties is taken into account. This can vary between 2-4 years. | Different state laws |
| UK | 16 years | Sexual Offences Act, 2003 |
| Germany | 14 years (16 years if the accused is a person responsible for the child’s upbringing, education or care). | German Criminal Code |
| France | 15 years | French Criminal Code |
| Sweden | 15 years (18 years if the child is the accused person’s offspring or he is responsible for upbringing of the child). | Swedish Penal Code |
| Malaysia | 16 years for both males and females. | Malaysian Penal Code; Child Act 2001 |
| China | No information about consent. Sex with a girl below 14 years is considered rape. Sodomy of a child (male or female) below 14 years is an offence. | Criminal Law of China, 1997 |
| Canada | 16 years | Criminal Code of Canada |
| Brazil | 14 years | Brazilian Penal Code 2009 |
| Australia | Varies between 16 and 17 years among different states and territorial jurisdictions. In two states, a person may engage in sexual activity with a minor if he is two years older than the child. In such cases the child has to be at least 10 years old. | Australian Criminal laws |
| India | 18 years. | Protection of Children Against Sexual Offences Act, 2012 |
