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Impeachment of President in India – Complete Procedure

Introduction

The former United States’ President Donald Trump’s impeachment news created quite an uproar. It is interesting to know that the former US President was impeached not once, but twice in the span of merely two years. This could be regarded as a classic example of creating history for the wrong reason. During the first impeachment, he was under the process of impeachment due to abuse of power and obstruction of justice. The second impeachment was on the grounds of incitement of insurrection. Well, it is a relief that in India, no President has been impeached to date, but the provision for the same has been rightly enshrined in the Indian Constitution. In this article, we shall overview the entire process of Impeaching an Indian President and shall also take a look at the process followed to impeach an American President and do a comparative analysis of the two. Further, we shall also briefly study whether or not the aforesaid process is being followed by the British.

What is Impeachment?

The process of Impeachment is not arbitrary. Therefore, it has been elucidated in Article 61 of the Indian Constitution. Although impeachment and removal are used synonymously, there lies a thin line of difference between them. In fact, it could be said that if both the Houses are satisfied with the charges against the President pursuant to an investigation, it leads to the removal of the President from office. In the process of impeachment, the charges are presented in both the houses of Parliament and only after receiving a majority in both houses will the said Authority be impeached. Prior to voting on the said matter, a detailed investigation is carried out based on which the houses present their vote. Consequently, the impeachment process ends with the removal of the President if both the houses of the Parliament are satisfied with the investigation and vote accordingly. The process shall be explained in detail in the following paragraph.

Article 56 (1) (b) – Reason for Impeachment

Article 56 (1) (b) states the reason for the removal of the President from office via the impeachment process. The aforesaid section reads as follows:

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

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

From a mere reading of the aforesaid section, it can be understood that the President can be impeached for violation of the Indian Constitution. Unlike the Constitution of France, Burma and Italy, amongst others, the Indian Constitution doesn’t lay down the reason for ‘treason’ for the impeachment of the President. It merely states that impeachment could be initiated for ‘violation of the Constitution’. It is said that there was certain deliberation about the reason for impeachment in the Constituent Assembly (hereinafter referred to as “Assembly”) as well. Therefore, an amendment was moved in the Assembly whereby it was proposed to incorporate the words ‘treason’ and ‘bribery’ as well. Despite the efforts, the amendment was not absorbed. Dr. Babasaheb Ambedkar believed that the phrase ‘violation of the Constitution’ would include offences such as bribery and treason.

Article 61 – Process of Impeachment of President in India

As stated before, Article 61 of the Indian Constitution lays down the process of Impeachment of the Head of the State. The aforesaid section states,

“(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-

  1. 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
  2. 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.”

Clause (1) of Article 61 states that the impeachment begins on the grounds of violation of the Indian Constitution, with either of the Houses of Parliament initiating the charge against the President. Clause (2) of Article 61 enlists the conditions that shall be fulfilled so that a charge could be preferred against the Indian President. It states that 14 days’ written notice must be signed by at least 1/4th of members of the House who have expressed their intent to move a resolution on the said charge. Further, such charge shall be contained in the following resolution as well. The aforesaid resolution shall be passed by 2/3rd membership of the house that has prepared the charge. The next step would be to investigate the said charge, therefore, such investigation shall be carried out by the other House of the Parliament. In my opinion, the rationale behind having the other House investigate the charge is to carry out the process in accordance with the Principles of Natural Justice. Where the same house investigates the matter, it could abrogate ‘Nemo Debet Esse Judex in Propria Causa’.

During the pendency of the investigation, the President may appear and be represented as per Clause (3) of Article 61. The President can be removed from office when a minimum of 2/3rd of the investigating House passes a resolution upholding the charge of impeachment against the President.

Comparison with the Procedure of Impeachment of US President

As stated before, the Indian President can only be impeached on grounds of abrogating the provisions of the Constitution. On the contrary, the American President along with the Vice President and other Civil Officers serving in the US can be removed through the process of impeachment on the following grounds:

  1. Treason
  2. Bribery
  3. Other high crimes and misdemeanours

On the abovementioned grounds, any member of the House of Representatives can initiate a resolution of the aforesaid nature. Where a simple majority is obtained for such resolution, a trial may begin. It is pertinent to note that in the US, the judiciary steps in the process of impeachment of the President i.e., the Chief Justice of the Supreme Court presides over the trial. The trial is actually quite interesting as we not only witness the Chief Justice of the Supreme Court presiding over it but also witness the Senators imbibing the role of a jury. Where the President is found guilty by 2/3rd of the Senators, he may be removed from the office of the President of the USA. Donald trump was impeached twice but was found ‘not guilty’ in every instance. In my opinion, the process of Impeachment of the Indian President is quite black and white as compared to that practiced in the US. In the Article, ‘The President of India Impeachment’ by V.N. Srivastava[i], the author is of the view that the US’ impeachment process is comparatively better than India’s.

Is the concept of Impeachment still being followed by the British?

It is pertinent to note that the British have now deemed the practice of impeachment redundant. It is quite ironic that the monarchy that once used the process excessively to discard its unwanted, has now deemed it obsolete. The last impeachment in the UK was concluded in the year 1806. Nonetheless, it can be observed that although the concept of impeachment has almost been discarded by the UK, in the 2000s there was an attempt by a few Members of the British Parliament to impeach the former Prime Minister of the UK, Tony Blair. Despite the efforts, it never led to the initiation of any formal process of impeachment against the former Prime Minister.

Conclusion

As observed, the concept of Impeachment of President in India did make its way to the Constitution of India but has never been executed. Since no Indian President has been impeached till date, it is rather difficult to study and understand the intensity and impact such implication would follow. On the contrary, roughly three Presidents of the US have been formally impeached till date, Donald Trump being impeached twice. Furthermore, it is safe to say that although the British have witnessed quiet a few impeachments, the process of impeachment has never been successfully implemented against a British Prime Minister, as was observed in Tony Blair’s case.

REFERENCES

1. https://www.drishtiias.com/daily-updates/daily-news-analysis/impeachment-of-the-president-of-the-usa

2. https://www.senate.gov/about/powers-procedures/impeachment.htm

3. Srivastava, V. N. “THE PRESIDENT OF INDIA IMPEACHMENT.” The Indian Journal of Political Science, vol. 41, no. 4, 1980, pp. 803–14. JSTOR, http://www.jstor.org/stable/41855058. Accessed 12 Sep. 2022.

4. https://www.thoughtco.com/impeachment-the-unthinkable-process-3322171

5. https://psaparliaments.org/2022/01/20/what-ever-happened-to-impeachment-in-the-united-kingdom-accountability-history-and-the-decline-of-parliamentary-impeachment/

6. https://researchbriefings.files.parliament.uk/documents/CBP-7612/CBP-7612.pdf

[i]Srivastava, V. N. “THE PRESIDENT OF INDIA IMPEACHMENT.” The Indian Journal of Political Science, vol. 41, no. 4, 1980, pp. 803–14. JSTOR, http://www.jstor.org/stable/41855058. Accessed 12 Sep. 2022.

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Aayushi Mittra

Aayushi Mittra is a Fifth Year Law Student pursuing 5 Years BLS LLB at SVKM's Pravin Gandhi College of Law. Securing AIR 18 in CS Foundation exams, she wishes to not restrict herself to the ambit of General Corporate Laws, but also wishes to explore various other fields of law like IPR, Cyber Law, Family Law, Capital Markets & Securities Laws and Sports Law. Apart from academics, she immensely enjoys participating in Drafting competitions, MUNs and Article Writing competitions.