IMS Unison University

Dehradun

ELECTION LAW ASSIGNMENT

AND THERE REMOVAL

BA.LLB (Hon.)
(2017 TO 2022)

Submitted to: Submitted By:

MR. Nikunj Yadav PUSHKAR

FACULTY IUU17BA009

SCHOOL OF LAW SEMESTER X

India is a sovereign, socialist, secular democratic republic. Democracy is one of the

inalienable basic features of the Constitution of India and forms part of its basic structure

(Kesavanand Bharati v State of Kerala and Others1). The concept of democracy, as

visualized by the Constitution, pre-supposes the representation of the people in Parliament

and State Legislatures by the method of election (N P Punnuswami v Returning Officer

Namakkal2). For democracy to survive rule of law must prevail and it is necessary that the

best available men should be chosen as people’s representatives for proper governance of the

country (Gadakh Yashwantrao Kankararao v Balasaheb Vikhepatil 3). And for the best

available men to be chosen as people’s representatives, elections must be free and fair and

conducted in an atmosphere where the electors are able to exercise their franchise according

to their own free will. Thus, free and fair elections form the bedrock of democracy.

India has adopted the British Westminster system of parliamentary form of government. We

have an elected President, elected Vice-President, elected Parliament and elected State

Legislature for every State. Now, we also have elected municipalities, panchayats and other

local bodies. For ensuring free and fair elections to these offices and bodies, there are three

pre-requisites:

• an authority to conduct these elections, which should be insulated from political and

executive interference,

• set of laws which should govern the conduct of elections and in accordance whereof

the authority charged with the responsibility of conducting these elections should

hold them, and

• A mechanism whereby all doubts and disputes arising in connection with these

1 AIR 1973 SC 1461

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 elections should be resolved.

The Constitution of India has paid due attention to all these imperatives and duly provided for

all the three matters.

The Constitution has created an independent Election Commission of India in which vests the

superintendence, direction and control of preparation of electoral rolls for, and conduct of

elections to, the offices of President and Vice-President of India and Parliament and State

Legislatures (Article 324). A similar independent constitutional authority has been created

for conduct of elections to municipalities, panchayats and other local bodies (Articles 243 K

and 243 ZA).

The authority to enact laws for elections to the offices of President and Vice-President and to

Parliament and State Legislatures has been reposed by the Constitution in Indian Parliament

(Articles 71 and 327). Laws relating to conduct of elections to municipalities, panchayats

and other local bodies are framed by the respective State Legislatures (Articles 243 K and

243 ZA). All doubts and disputes relating to the elections to the office of President and

Vice-President are dealt with by the Supreme Court (Article 71), whereas the initial

jurisdiction to deal with all doubts and disputes relating to the elections to Parliament

and State Legislatures vests in the High Court of the State concerned, with a right of

appeal to the Supreme Court (Article 329). The disputed matters relating to elections to

municipalities, etc. are decided by the lower courts in accordance with the laws made by the

respective State Governments.

The law relating to the elections to the offices of President and Vice-President of India has been

enacted by Parliament in the form of Presidential and Vice-Presidential Elections Act 1952. This Act

has been supplemented by the Presidential and Vice- Presidential Elections Rules 1974 and further

supplemented by the Election Commission’s directions and instructions on all aspects.

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Conduct of elections to Parliament and State Legislatures are governed by the provisions of

two Acts, namely, Representation of the People Act 1950 and Representation of the People

Act 1951.

Representation of the People Act 1950 deals mainly with the matters relating to the

preparation and revision of electoral rolls. The provisions of this Act have been

supplemented by detailed rules, Registration of Electors Rules 1960, made by the Central

Government, in consultation with the Election Commission, under Section 28 of that Act and

these rules deal with all the aspects of preparation of electoral rolls, their periodic revision

and updating, inclusion of eligible names, exclusion of ineligible names, correction of

particulars, etc. These rules also provide for the issue of electoral identity cards to registered

electors bearing their photographs at the State cost. These rules also empower the Election

Commission to prepare the photo electoral rolls containing photographs of electors, in

addition to their other.

All matters relating to the actual conduct of elections are governed by the provisions of the

Representation of the People Act 1951 which have been supplemented by the Conduct of

Elections Rules 1961 framed by the Central Government, in consultation with the Election

Commission, under Section 169 of that Act. This Act and the rules make detailed provisions

for all stages of the conduct of elections like the issue of writ notification calling the election,

filing of nominations, scrutiny of nominations, withdrawal of candidatures, taking of poll,

counting of votes and constitution of the Houses on the basis of the results so declared.

The superintendence, directions and control of elections vested by the Constitution in the

Election Commission empowers the Commission even to make special orders and directions

to deal with the situations for which the laws enacted by the Parliament make no provision or

insufficient provision. The classic example of filling such vacuous area is the promulgation

of the Election Symbols (Reservation and Allotment) Order 1968 which governs the matters

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relating to recognition of political parties at the National and State level, reservation of

election symbols for them, resolution of disputes between splinter groups of such recognised

parties, and allotment of symbols to all candidates at elections, etc.

Another such vacuous area where the Election Commission exercises its inherent powers

under Article 324 of the Constitution is the enforcement of the Model Code of Conduct for

guidance of political parties and candidates. The Model Code is a unique document evolved

by the political parties themselves to govern their conduct during elections so as to ensure

that a level playing field for all political parties is maintained during elections and, in

particular, to curb the misuse of official power and official machinery by the ruling parties to

further the electoral prospects of their candidates.

All post-election matters to resolve doubts and disputes arising out of or in connection with

the elections are also dealt with in accordance with the provisions of the Representation of

the People Act 1951. Under this Act, all such doubts and disputes can be raised before the

High Court of the State concerned, but only after the election is over and not when the

election process is still on.

The above-mentioned Representation of the People Acts 1950 and 1951 and the Registration

of Electors Rules 1960 and Conduct of Elections Rules 1961 form complete code on all

matters relating to elections to both Houses of Parliament and State Legislatures. Any person

aggrieved by any of the decisions of the Election Commission or the authorities functioning

under it must find a remedy in accordance with the provisions of these Acts and Rules.

These Acts and Rules enable the Election Commission to issue directions and instructions to

deal with various aspects of the preparation/revision of electoral rolls and the conduct of

elections and lead all such matters of detail to be dealt with by the Commission. Pursuant

thereto, the Commission has issued a plethora of directions and instructions which have been

consolidated by the Commission in various compendia and the handbooks for the Electoral

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 Registration Officers, Returning Officers, Presiding Officers, candidates, polling agents and

counting agents.

INDIAN ELECTORAL SYSTEM

The Parliament of India comprises the head of state and the two houses which are the

legislature. The president of India is elected for a five-year term by an electoral college

consisting of members of federal and state legislatures. This is the election process of India.

The House of the People (Lok Sabha) represents citizens of India (as envisaged by the

Constitution of India, currently the members of Lok Sabha are 545, out of which 543 are

elected for five-year term and two members represent the Anglo-Indian community). The 545

members are elected under the plurality ('first past the post') electoral system. The Council of

States (Rajya Sabha) has 245 members, 233 members elected for a six-year term, with one-

third retiring every two years. The members are indirectly elected, this being achieved by the

votes of legislators in the state and union (federal) territories. The elected members are

chosen under the system of proportional representation by means of the single transferable

vote. The twelve nominated members are usually an eclectic mix of eminent artists (including

actors), scientists, jurists, sportspersons, businessmen and journalists and common people.

ELECTION COMMISSION

The Election Commission of India is an autonomous, constitutionally established federal

authority responsible for administering all the electoral processes in the Republic of India.

Under the supervision of the commission, free and fair elections have been held in India at

regular intervals as per the principles enshrined in the Constitution. The Election Commission

has the power of superintendence, direction and control of all elections to the Parliament of

India and the state legislatures and of elections to the office of the President of India and the

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 Vice-President of India. Elections are conducted according to the constitutional provisions,

supplemented by laws made by Parliament. The major laws are Representation of the People

Act, 1950, which mainly deals with the preparation and revision of electoral rolls, the

Representation of the People Act, 1951 which deals, in detail, with all aspects of conduct of

elections and post-election disputes. The Supreme Court of India has held that where the

enacted laws are silent or make insufficient provision to deal with a given situation in the

conduct of elections, the Election Commission has the residuary powers under the

Constitution to act in an appropriate manner. Originally the commission had only a single

Chief Election Commissioner. Two additional Commissioners were appointed to the

commission for the first time on 16 October 1989, but they had a very short tenure—until 1

January 1990. The Election Commissioner Amendment Act, 1993 made the Election

Commission a multi-member body. Later, on 1 October 1993, two additional Election

Commissioners were appointed. The concept of a multi-member Commission has been in

operation since then, with decision-making power by majority vote.

ELECTORAL PROCESS

Electoral Process in India starts with the declaration of dates by the election commission.

Publishing of electoral rolls is a key process that happens before the elections and is vital for

the conduct of elections in India. The Indian Constitution sets the eligibility of an individual

for voting as any person who is a citizen of India and above 18 years of age. It is the

responsibility of the eligible voters to enroll their names. The model code of conduct comes

in force from the day the dates are announced.

The candidates are required to file the nomination papers following which the candidate list is

published after scrutiny. No party can use the government resources for campaigning. No

party can bribe the candidates before elections. The government cannot start a project during

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 the election period. The campaigning ends at 6 PM of the second last day before the polling

day.

The polling is held normally from 7 AM to 5 PM, whereas it might be changed under special

circumstances. The Collector of each district oversees polling. Government employees are

employed as poll officers at the polling stations. Electronic Voting Machines (EVMs) are

being increasingly used instead of ballot boxes to prevent election fraud via booth capturing,

which is heavily prevalent in certain parts of India. An indelible ink is applied usually on the

left index finger of the voter as an indicator that the voter has cast his vote. This practice has

been followed since the 1962 general elections to prevent a bad vote. Re-polling happens if

the initial polling is unsuccessful due to reasons such as adverse weather, violence etc. The

polled votes are counted to announce the winner. India follows first past the post

methodology to declare the winner.

PRESIDENT OF INDIA

The President of India is the formal head of the executive, legislature and judiciary of India

and is the commander-in-chief of the Forces. The current president is Pranab Mukherjee.

The President is indirectly elected by the people through elected members of the Parliament

of India (Lok Sabha and Rajya Sabha) as well as of the Legislative Assemblies in States of

India (Vidhan Sabha) and the each Union Territories, i.e. Delhi, Puducherry etc.; and serves

for a term of five years.Historically, ruling party (majority in the Lok Sabha) nominees (for

example, United Progressive Alliance nominee Pranab Mukherjee) have usually been elected

unanimously. Incumbent presidents are permitted to stand for re-election. A formula is used

to allocate votes so there is a balance between the population of each state and the number of

votes assembly members from a state can cast, and to give an equal balance between State

Assembly members and the members of the Parliament of India. If no candidate receives a

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majority of votes, then there is a system by which losing candidates are eliminated from the

contest and their votes are transferred to other candidates, until one gains a majority. The oath

of the President is administered by the Chief Justice of India, and in his absence, by the most

senior judge of the Supreme Court.

Although Article 53 of the Constitution of India states that the President can exercise his

powers directly or by subordinate authority, with few exceptions, all of the executive

authority vested in the President are, in practice, exercised by the Government of India. This

Executive power is exercised by the Prime Minister with the help of the Council of Ministers.

The President opens Parliament with an address. In addition to that, the President summons

and prorogues the two Houses of Parliament from time to time. While the House of States is a

continuing body, the power to dissolve the Lower House vests in the President. The President

has the right to address either or both the Houses of Parliament. In case of a deadlock

between the two houses or in a case where more than six months lapse in the other house, the

President may summon a joint session of the two houses which is presided over by the

Speaker of the Lower House. Budget is presented in Lower House on a day as the President

directs.

The President of India resides in an estate in New Delhi known as the Rashtrapati Bhavan

(which roughly translates as President's Palace). The presidential retreat is The Retreat in

Chharabra, Shimla and Rashtrapati Nilayam (President's Place) in Hyderabad.

The 13th and current President is Pranab Mukherjee, who was elected on 22 July 2012, and

sworn in on 25 July 2012. He is also the first Bengali to be elected as President. He took over

the position from Pratibha Patil, who was the first woman to serve in the office.

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ELECTION OF PRESIDENT

ELIGIBILITY

Article 58 of the Constitution sets the principle qualifications one must meet to be eligible to

the office of the President. A President must be:

▪ A citizen of India

▪ Of 35 years of age or above

▪ Qualified to become a member of the Lok Sabha

A person shall not be eligible for election as President if he holds any office of profit under

the Government of India or the Government of any State or under any local or other authority

subject to the control of any of the said Governments.

Certain officeholders, however, are permitted to stand as Presidential candidates. These are:

▪ The current Vice President.

▪ The Governor of any State.

▪ A Minister of the Union or of any State (Including Prime Minister and Chief Ministers).

If the Vice President, a State Governor or a Minister is elected President, they are considered

to have vacated their previous office on the date they begin serving as President.

Under The Presidential and Vice-Presidential Elections Act, 1952, a candidate, to be

nominated for the office of president needs 50 electors as proposers and 50 electors as

seconders for his name to appear on ballot.

CONDITIONS FOR PRESIDENCY

Certain conditions, as per Article 59 of the Constitution, debar any eligible citizen from

contesting the presidential elections. The conditions are:

• The President shall not be a member of either House of Parliament or of a House of

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 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 on which he enters upon his office as

President.

• The President shall not hold any other office of profit.

• 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 by Parliament by law and until provision in that behalf is so made,

such emoluments, allowances and privileges as are specified in the Second Schedule.

• The emoluments and allowances of the President shall not be diminished during his

term of office.

ELECTION PROCESS

Whenever the office becomes vacant, the new President is chosen by an electoral college

consisting of the elected members of both houses of Parliament(M.P.), the elected

members of the State Legislative Assemblies (Vidhan Sabha) of all States and the

elected members of the legislative assemblies (M.L.A.) of two Union Territories i.e.,

National Capital Territory(NCT) of Delhi and Union Territory of Puducherry. The

nomination of a candidate for election to the office of the President must be subscribed

by at least 50 electors as proposers and 50 electors as seconders. Each candidate has to

make a security deposit of 15,000 (US$240) in the Reserve Bank of India. The security

deposit is liable to be forfeited in case the candidate fails to secure one-sixth of the votes

polled. The election is held in accordance to the system of Proportional

representation by means of Single

transferable vote method. The Voting takes place by secret ballot system. The manner of

election of President is provided by Article 55 of the Constitution. Each elector casts a

different number of votes. The general principle is that the total number of votes cast by
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 Members of Parliament equals the total number of votes cast by State Legislators. Also,

legislators from larger states cast more votes than those from smaller states. Finally, the

number of legislators in a state matters; if a state has few legislators, then each legislator has

more votes; if a state has many legislators, then each legislator has fewer votes. The actual

calculation for votes cast by a particular state is calculated by dividing the state's population

by 1000, which is divided again by the number of legislators from the State voting in the

Electoral College. This number is the number of votes per legislator in a given state. Every

elected member of the parliament enjoys same number of votes which may be obtained by

dividing the total number of votes assigned to the members of legislative assemblies by the

total number of elected representatives of the parliament. Although Indian presidential

elections involve actual voting by MPs and MLAs, they tend to vote for the candidate

supported by their respective parties.

OATH OR AFFIRMATION

The President is required to make and subscribe in the presence of the Chief Justice of India

(or in his absence, the senior-most Judge of the Supreme Court), an oath or affirmation that

he/she shall protect, preserve and defend the Constitution as follows:

I, (name), do swear in the name of God (or solemnly affirm) that I will faithfully execute the

office of President (or discharge the functions of the President) of the Republic of India, 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 the Republic of India.

— Article 60, Constitution of India.

EMOLUMENTS

The President of India used to receive 10,000 (US$200) per month as per the Second

Schedule of the Constitution. This amount was increased to 50,000 (US$800) in 1998. On 11

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 September 2008 the Government of India increased the salary of the President to 1.5 lakh

(US$2,400). However, almost everything that the President does or wants to do is taken care

of by the annual 225 million (US$3.5 million) budget that the Government allots for his or

her upkeep. Rashtrapati Bhavan, the President's official residence, is the largest Presidential

Palace in the world. The Rashtrapati Nilayam at Bolarum, Hyderabad and Retreat Building at

Chharabra, Shimla are the official Retreat Residences of the President of India. The official

state car of the President is a custom-built heavily armoured Mercedes Benz S600 (W221)

Pullman Guard.

REMOVAL

The President may be removed before the expiry of the term through impeachment. A

President can be removed for violation of the Constitution of India.

The process may start in either of the two houses of the Parliament. The house initiates the

process by levelling the charges against the President. The charges are contained in a notice

that has to be signed by at least one quarter of the total members of that house. The notice is

sent up to the President and 14 days later, it is taken up for consideration.

A resolution to impeach the President must be passed by a special majority (two-third

majority of the total number of members of the originating house). It is then sent to the other

house. The other house investigates the charges that have been made. During this process, the

President has the right to defend oneself through an authorized counsel. If the second house

also approves the charges made by special majority again, the President stands impeached

and is deemed to have vacated his/her office from the date when such a resolution stands

passed. Other than impeachment, no other penalty can be given to the President for the

violation of the Constitution. No president has faced impeachment proceedings, so the above

provisions have never been used.

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SUCCESSION

In the event of a vacancy created for the President's post due to death, resignation,

impeachment, etc., Article 65 of the Indian Constitution says that the Vice President of India

will have to discharge the duties. The Vice President reverts to office when a new President is

elected and enters office. When the President is unable to act because of absence, illness or

any other cause, the Vice President discharges the President's functions until the President

resumes the duties. A Vice President who acts as or discharges the functions of the President

has all the powers and immunities of the President and is entitled to the same emoluments as

the President.

The Indian Parliament has enacted the law (The President (Discharge of Functions) Act,

1969) for the discharge of the functions of the President when vacancies occur in the offices

of the President and of the Vice President simultaneously, owing to removal, death,

resignation of the incumbent or otherwise. In such an eventuality, the Chief Justice, or in his

absence, the senior most Judge of the Supreme Court of India available discharges the

functions of the President until a newly elected President enters upon his office or a newly

elected Vice President begins to act as President under Article 65 of the Constitution,

whichever is the earlier.

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VICE – PRESIDENT OF INDIA

The Vice President of India is the second-highest constitutional office in India, after the

President. Article 63 of Indian Constitution states that there shall be a Vice-President of

India. The Vice President shall act as President in the absence of the President due to death,

resignation, impeachment, or other situations. The Vice President of India is also ex officio

Chairperson of the Rajya Sabha.

Article 66 of the Indian Constitution states the manner of election of the Vice-President. The

Vice-President is elected indirectly by 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 is by secret ballot.

The current Vice President is Mohammad Hamid Ansari, since 11 August 2007, and re-

elected on 7 August 2012

QUALIFICATIONS

As in the case of the President, in order to be qualified to be elected as Vice President, a

person must:

▪ Have completed more than 35 years of age

▪ Not hold any office of profit

While in order to be a President, a person must be qualified for election as a member of the

Lok Sabha (House of Peoples), the Vice President must be qualified for election as a member

of the Rajya Sabha (Council of States). This difference is because the Vice President is to act

as the ex officio Chairman of the Rajya Sabha.

ELECTION

The Vice President is elected indirectly, by an electoral college consisting of members of both

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houses of the Parliament. The election of the Vice President is slightly different from the

election of the President as the members of state legislatures are not part of the electoral

college for the Vice-Presidential election.

The nomination of a candidate for election to the office of the Vice President must be

subscribed by at least 20 electors as proposers and 20 electors as seconders. Every candidate

has to make a security deposit of Rs.15, 000 in the Reserve Bank of India.

The Election Commission of India, which is a constitutional autonomous body, conducts the

election. The election is to be held no later than 60 days of the expiry of the term of office of

the outgoing Vice President. A Returning Officer is appointed for the election, usually the

Secretary-General of either House of the Parliament, by rotation. The Returning Officer

issues a public notice of the intended election, inviting nomination of candidates. Any person

qualified to be elected and intending to stand for election is required to be nominated by at

least twenty Members of Parliament as proposers, and at least twenty other Members of

Parliament as seconders. The nomination papers are scrutinized by the Returning Officer, and

the names of all eligible candidates are added to the ballot.

The election is proportional representation by means of a single transferable vote by secret

ballot. Voters stack-rank the candidates, assigning 1 to their first preference, 2 to their second

preference, and so on. The number of votes required by a candidate to secure the election is

calculated by dividing the total number of votes by two and adding one to the quotient by

disregarding any remainder. If no candidate obtains the required number of first-preference

votes, the candidate with the least number of first-preference votes is eliminated and his/her

second-preference votes are transferred. The process is repeated until a candidate obtains the

requisite number of votes. Nominated members can also participate in the election.

After the election has been held and the votes counted, the Returning Officer declares the

result of the election to the Electoral College. Thereafter, he/she reports the result to the

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 Central Government (Ministry of Law & Justice) and the Election Commission of India and

the Central Government publishes the name of the person elected as Vice President, in the

Official Gazette.

The Vice-President may resign his office by submitting his resignation to the President. The

resignation becomes effective from the day it is accepted.

ELECTION DISPUTES

All disputes arising in connection with the election of the Vice President are petitioned to the

Supreme Court of India, which inquiries into the matter. The petition is heard by a five-

member bench of the Supreme Court, which decides on the matter. The decision of the

Supreme Court is final.

OATH OF AFFIRMATION

The article 69 of Indian Constitution provides the Oath of Affirmation for the Office of Vice

President as under: -

"I, do swear in the name of God that I will bear true faith and allegiance to

solemnly affirm the Constitution of India as by law established and that I will faithfully

discharge the duty upon which I am about to enter."

The President administers the oath of office and secrecy to the Vice-President.

TERM

The Vice President holds office for five years. He/she can be re-elected any number of times.

However, the office may be terminated earlier by death, resignation or removal. The

Constitution does not provide a mechanism of succession to the office of Vice President in

the event of an extraordinary vacancy, apart from re-election. However, the Deputy Chairman

of the Rajya Sabha can perform the duties of the Chairman of the Rajya Sabha in such an

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 event.

REMOVAL

The Vice President cannot be formally impeached, unlike the President. The Constitution

states that the Vice President can be removed by a resolution of the Rajya Sabha passed by an

effective majority (more than 50% of effective membership (total membership-vacancies))

and agreed to by a simple majority (50% of voting members) of the Lok Sabha (Article

67(b)). But no such resolution may be moved unless at least 14 days' advance notice has been

given. Notably, the Constitution does not list grounds for removal.

No Vice President or ex officio Vice President has ever faced removal proceedings.

SALARY AND PENSION

There is no specific provision of salary/pension for the ex officio Vice President, per se.

He/she receives the salary of the Chairman of the Rajya Sabha, which is currently Rs. 1,

25,000 per month. There are no additional emoluments for the office.

The constitution provides that when the ex officio Vice President acts as the President or

discharges the duties of the President, he/she is entitled to the salary and privileges of the

President. The pension for the Vice-President is 50% of the salary.

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BIBLIOGRAPHY

➢ BOOKS REFERRED:

• ELECTION LAW & PRACTICE IN INDIA BY....................R N CHOUDARY

• ALL YOU WANT TO KNOW ABOUT INDIAN ELECTIONS BY.......S.K.

MENDIRATTA

• LAW OF ELECTION BY.........JUSTICE T. S. DOABIA.

➢ WEBSITE REFERRED:

• http://www.thehindu.com/today-paper/tp-in-school/the-guardians-of-free-

and- election-of -president-vice-president/article5750972