Impeachment Process of President of India

Impeachment Process of President of India

Introduction

The term “Impeachment” is derived from old French “empecher” meaning “to prevent or impede” and refers to the act of accusing a public official formally of a serious and grave offence in connection with his/her job.
In most country it is provided as solution under their respective constitutions to address grave cases of professional misconduct on part of public official usually of top post.

Impeachment itself results in removal in some jurisdiction, in others, it is the initial step towards the removal, the second step being conviction.

The First recognized case of Impeachment can be traced back to 1376, England where parliament headed by Peter de la mare impeached William Latimer 4th Baron Latimer, amongst other on the charges of corruption and abuse of power. Concept behind this was to develop parliament with measure of control over the King and called the “The most powerful weapon in the political armoury” short of civil war[1].

It was a tool to create more government and address the issue of power imbalances between monarch and parliament later on the practice of impeachment was adopted by the US from Britain which also included the impeachment of President and this provision of impeachment of president greatly influenced the makers of Indian Constitution.

Impeachment of President in India

President is the Head of State of the Republic of India. President is the formal head of the executive, legislature and judiciary of India and is also the Commander-in-chief of Indian Armed forces. President holds office for the time period of 5 years from the date he enters upon his office, but even after the expiration of 5 years he continues to be a president until his successor takes over. His office can be terminated even before the time period of 5 years by either his resignation or is removed on impeachment for the violation of Indian Constitution.

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Part V of Indian Constitution (the union) under chapter I (the executive) lists out the qualification, election and impeachment of the president of India.
Article 56 states the only condition of impeachment of the president in India that is violation of the Constitution.

Article 56 in The Constitution Of India 1949

“56. Term of office of President

(1) The President shall hold office for a term of five years from the date on which he enters upon his office: Provided that

(a) the President may, by writing under his hand addressed to the Vice President, resign his office;

(b) the President may, for violation of the constitution, be removed from office by impeachment in the manner provided in Article 61:

(c) the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office

(2) Any resignation addressed to the Vice President under clause (a) of the proviso to clause (1) shall forthwith be communicated by him to the Speaker of the House of the People.[2]

The only ground mentioned for Impeachment of President is “Violation of the Constitution”. However, “Violation of the Constitution” is nowhere defined in the Indian Constitution. The words “Violation of the Constitution” can be interpreted in wider sense and many different ways. The issue that the words “Violation of the Constitution” is vague and unclear, was raised by Pandita Bhargava and argued that it requires clarification[3]

.

Article 61 provides for the procedure of Impeachment of President of India.

“61. Procedure for impeachment of the President

(1) When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament

(2) No such charge shall be preferred unless

(a) the proposal to prefer such charge is contained in a resolution which has been moved after at least fourteen days’ notice in writing signed by not less than one fourth of the total number of members of the House has been given of their intention to move the resolution, and

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(b) such resolution has been passed by a majority of not less than two thirds of the total membership of the House

(3) When a charge has been so preferred by either House of Parliament, the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented as such investigation

(4) If as a result of the investigation a resolution is passed by a majority of not less than two thirds of the total membership of the House by which the charge was investigated or cause to be investigated, declaring that the charge preferred against the President has been sustained, such resolution shall have the effect of removing the President from his office as from the date on which the resolution is so passed.[4]

 

  1. Accordingly notice in the form of resolution is to be brought before any house of the parliament either Lok Sabha or Rajya Sabha, Lower House being Lok Sabha and Upper House being Rajya Sabha.
  2. After that the resolution must be signed and supported by at least 1/4th of the total members of that house. Which means if the notice in the form of resolution is brought before Rajya Sabha then it must be signed and supported by at least 1/4th of the total members of Rajya Sabha.
  3. After the resolution is signed and supported, then such notice among with the copy which shows the signatures of the members supporting the impeachment, will be sent to the president for him to know what are the allegation brought against him and at least 14 days’ time period is given to the president to file a defensive statement in his favour.
  4. Defensive statement comes to the same house where the impeachment initiated. After that a resolution shall be passed by a majority of not less than, 2/3rd of the total membership of the house which had first initiated the impeachment procedure.
  5. After the resolution is passed than the other House of Parliament shall investigate the charges or cause it to be investigated. This House shall be Investigating House.
  6. While the charges are being investigated, president shall have the right to appear and defend himself and also the right to be represented.
  7. The House which has investigated the charges, shall have to vote with majority of at least 2/3rd of total membership of the House.
  8. Such majority shall have the effect of removing the president from his office on the date when such resolution is passed by the Parliament.
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A proposal in constituent assembly was put forth to replace 2/3rd majority to simple majority. The members who put forward such proposals contended that 2/3rd majority is too stringent and against the spirit of democracy. Dr BR Ambedkar responded that unlike no confidence-motion an impeachment motion would associate president with humiliation, shame and moral turpitude. Therefore, it is necessary to set the bar high of 2/3rd majority to pass an impeachment motion[5].

The president continues to discharge his official function during the process of investigation. President continues to be functional till he is removed. India does not have any cases of Impeachment as of yet.

 

[1] Plucknett, “Presidential Address” reproduced in 3 Transactions, Royal Historical Society, 5th Series, 145 (1952)

[2] https://indiankanoon.org/doc/1597349/

[3] CONSTITUENT ASSEMBLY DEBATES, December 28, 1948 speech by PANDIT THAKUR DASS BHARGAVA 7.74.120 available at

https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-28 (Last visited on September 13, 2020).

[4] https://indiankanoon.org/doc/594857/

[5] https://www.constitutionofindia.net/constitution_of_india/the_union/articles/Article%2061

Author: sarthbodhi wankhade,
Symbiosis Law School and 5th Year (BA LLB)

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