Administrative law

This article is written by Subhangee Biswas. The article discusses the entirety of Article 61 of the Indian Constitution, that is, the procedure of impeachment of the President of India, elaborating on each step and providing details as provided by our Constitution. 

Introduction

The Constitution of India, 1950, was adopted on 26th November, 1949 and it came into effect on 26th January, 1950. It is said to be the supreme law of the land. It is a written document that furnishes a framework stating the structure of the government, procedures, and powers of the three organs of the government, namely, the legislature, judiciary, and executive, along with the rights and duties of the citizens. 

In this article, we are concerned about a specific provision of the Constitution, which is Article 61. Article 61 discusses the procedure for the impeachment of the President. The President, as we know, is the nominal head of the executive, is regarded as the first citizen of the country, and is also the supreme commander of the Indian Armed Forces. The Parliament has the authority to remove the President from his office through the process of impeachment in certain circumstances. This procedure results in the removal of the President before the completion of the term of his office, that is, five years.

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Meaning of impeachment

Before beginning with the topic, let us understand what the term “impeachment” means. 

The term “impeachment” is derived from the French word “empeechier,” which means to impede or hinder. In general terms, impeachment is the act of examining the integrity or validity of something. Impeachment can be defined as a process that is to be followed in determining whether a person holding a position should be removed from exercising the powers and responsibilities vested in that position. 

If it has to be defined from an administrative point of view, then it can be defined as the process of bringing charges against a government official for some wrong-doing. It refers to the act of formally accusing a public official of a serious offence related to their job, which, if proved, results in the removal of the official. In India, the process of impeachment is to be followed not only in the case of the removal of the President but also in the case of Vice-President, judicial officers, especially the judges of the Supreme Court under Article 124(4), and all civil officers.

When can the President be impeached 

Usually, the term of the President is five years, as provided in Article 56. There are various ways in which the position of the President can become vacant. The following are the possibilities:

  1. Death of the President,
  2. Resignation of the President (Article 56(a) and Article 56(2)), 
  3. Impeachment of the President for violation of the Constitution (Article 61), 
  4. The Supreme Court declares the election of the President void (Article 71).

The President of India can be impeached by the Parliament before the end of the usual five year term in case the President violates the Constitution of India. This has been provided under Article 56(1)(b) as well as Article 61(1).

Article 56(1)(b) states that “the President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in Article 61.”

Clause (1) of Article 61 states that “when a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament.”

The phrase “violation of the Constitution” has not been defined in the Constitution.

We can interpret the phrase to mean that a violation of the Constitution occurs when some act is done or some procedure is adopted that is against the Constitution. It may be non-conformity with the oath taken by the President under Article 60 or failing to carry out the functions prescribed by the Constitution. Other possibilities include treason, corruption, abuse of power, negligence of duties, bribery, violation of fundamental rights, gross misconduct, etc.

Procedure for impeachment of the President 

The procedure for impeachment has been stated under the remaining three clauses of Article 61. For the sake of understanding, we will be dealing with it in a step-by-step manner.

Formation of the resolution

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Either House of the Parliament can initiate the proceedings of impeachment. The proposal stating the charge to impeach the President has to be contained in a resolution. Before moving such a resolution, at least fourteen days notice in writing has to be given. 

The resolution must be signed by at least one-fourth of the total number of members of the House giving their intention to move the resolution, and it has to be passed by a majority of not less than two-thirds of the total membership of the House in which it has originated.

Joint committee investigation

When such a charge has been preferred by any of the houses, the other house has to investigate the charge or cause it to be investigated. As a result of the investigation, if the charges are upheld and the resolution is passed by a majority of not less than two-thirds of the total membership of the other House as well, then the resolution will have the effect of removing the President from his office as of the date on which the resolution was passed.

The President has a right to appear in person and is also entitled to legally represent himself through authorised attorneys during the impeachment proceedings. 

While understanding the concept of impeachment, it is necessary to understand the term “special majority” since the two-third requirement which essentially passes the resolution is also known as “special majority”. 

Special majority

In Article 61, the majority requirement to pass the resolution to impeach the President is a two-thirds majority of the total membership of the House. This is a kind of special majority. 

A special majority generally refers to a majority of two-thirds of the members of each House present and voting. The requirement of a special majority is evident in various provisions of the Constitution. For example,

  1. Special Majority as per Article 249: Article 249 deals with the power of the Parliament to legislate with respect to a matter that is mentioned in the State List in the national interest. In this case, the special majority is described as the support of not less than two-thirds of the members present and voting.
  2. Special Majority as per Article 368: Article 368 deals with the power of the Parliament to amend the Constitution and the procedure of the Constitution. In this case, the special majority is described as a majority of the total membership of the House, and such a majority should not be less than two-thirds of the members of the House present and voting. 
  3. Special Majority as per Article 368 when a specific type of amendment is sought: The proviso of Article 368 states that when the amendment sought is aimed at restructuring the federal system, then the majority requirement is a special majority along with ratification of the legislatures of at least 50% of the states.

Such a majority is required in matters related to a change in the following:

  1. Article 54 (Election of President), Article 55 (Manner of Election of President), Article 73 (Extent of the Executive Power of the Union), Article 162 (Extent of the Executive Power of the State), or Article 241 (High Courts for Union Territories),
  2. Chapter IV of Part V (The Union Judiciary), Chapter V of Part VI (The High Courts in the States), or Chapter I of Part XI (Legislative Relations),
  3. Any list mentioned in the Seventh Schedule, 
  4. The representation of states in Parliament,
  5. The provisions of Article 368,
  6. Special Majority as per Article 61: As discussed, Article 61 deals with the impeachment of the President, and in this case, the special majority requirement is two-thirds of the total membership of the House. 

Consequences of impeachment

If the resolution of impeachment succeeds and the President is removed from his office, the office of the President becomes vacant. Naturally, it is not possible to conduct elections then and there and elect another candidate to become the President, since the election of a President is a lengthy process. So, for the time being, until a new election is conducted and a new President is elected, the Vice-President assumes the role of President. Consequently, a fresh election is held to elect a new President according to the procedure given in the Constitution. After the election, the newly elected candidate assumes the office of President.

Assuming of office by the Vice President 

Article 65 mentions that the Vice President can assume the office of President in certain cases. It provides that the Vice President shall act as the President or shall discharge the functions of the President in the following circumstances:

  1. When there is any vacancy in the office of the President, the reason being his death, resignation, removal, or any other reason: In this case, the Vice-President will assume the office of President, discharging his functions until a new President is elected as per the Constitution.
  2. When the President is unable to discharge the functions of his office due to illness, absence, or any other cause: In this case, the Vice President will discharge the functions of the President until the actual President resumes his office and takes over his duties again.

While the Vice President carries on as a temporary President, the presidential election is to be held again to elect a new candidate. The usual manner of election for the President is followed. The manner of election of the President has been elaborated in Article 55.

Election of the President

To understand the presidential election, we need to know two provisions, which are Articles 54 and 55. 

Article 54 states that the President is elected by the members of an electoral college, which consists of:

  1. The elected members of both the Houses of Parliament and
  2. The elected members of the Legislative Assemblies of the States.

On the other hand, Article 55 states that in the election of the President, it is ensured that there is uniformity in the scale of representation of the different states. 

For the Legislative Assembly of the States, the total population of the state is divided by the total number of elected members of the assembly. Then, the result is again divided by one thousand. The final result is the number of votes that an elected member of the Legislative Assembly of a State has in the election of the President. Further, if the division by one thousand leaves a remainder of five hundred or more, then the number of votes allotted increases by one.

For either of the Houses of Parliament, the total number of votes assigned to all the members of the Legislative Assemblies of the States is divided by the total number of elected members of both Houses of Parliament. The result is the number of votes that each elected member of either of the Houses of Parliament has in the election of the President. Again, if the division results in a fraction that is more than one-half, then it is counted as one.

The entire process of the election of the President is carried out by the Election Commission, as stated under Article 324(1). According to Article 324(2), the Election Commission consists of the Chief Election Commissioner and other such Election Commissioners as fixed by the President. Moreover, the appointment of the Chief Election Commissioner and other Election Commissioners is also made by the President.

The presidential election is done as per the “system of proportional representation by means of the single transferable vote.” For the purpose of casting the vote, the system of secret ballots is used.

Let’s try to understand these phrases.

System of proportional representation by means of the single transferable vote

For the sake of convenience, we will divide the phrase into two halves: proportional representation and a single transferable vote. Now, we will understand these two terms separately:

  • Proportional Representation: It is an election system where the number of seats allocated to each party reflects the proportion of votes cast for that party. The electorate divisions are proportionally represented by the elected party. The electorate means the people who are allowed to vote in an election. 

In simple terms, the political parties get the same representation or number of seats in the legislature as the number of votes they get in the elections. To make it easier, let us consider that “x%” of the electorate mass supports a political party, and that is the percentage of votes the party has received in an election. So, the political party will have “x%” seats in the legislature. The aim of proportional representation is that the legislative seats are allocated according to the percentage of votes each political party receives from the voting mass. 

  • Single Transferable Vote (STV): The Single Transferable Voting System is a kind of proportional representation system that uses a ranked preferential method of voting to choose the best candidate among multiple vacancies. The voter ranks the candidates in order of their preference. The ranking of all the candidates as per preference ensures that backup preferences are provided by casting one vote. Let us now simplify the concept for a better understanding.

The candidate needs a certain number of votes to be elected. This certain amount is known as a quota. Each voter has one vote and has to number all the available candidates as per their preference. The candidate who gets more votes than the quota gets elected. The extra votes made for the elected candidate are then transferred to the second preferred candidate. Hence, the excess or rejected votes are not wasted but are transferred to the other preferred candidate. 

Another scenario may arise, which is that no candidate reaches the quota. In that case, the least popular candidate, who received the least number of votes, is removed. Thereafter, the people who voted for that removed candidate have their votes moved to their second preferred candidate. 

Thus, this system allows votes to be transferred to other preferred candidates in two cases:

  1. The winning candidate surpasses the quota, or 
  2. The least preferred candidates are eliminated.

Secret ballot

As the name suggests, a secret ballot ensures that the vote is cast in secrecy. The voter cast their vote secretly in an enclosure. This makes sure that no person gets to know which candidate the voter voted for. The identity of the voter also becomes anonymous in this process. The secret ballot system aims to provide a sense of fearlessness among the voters and the voters can cast their vote without any external influence.

The secret ballot is also known as the Australian ballot.

Criteria for filling a vacancy after impeachment 

After the successful impeachment of the President, a new election needs to be held to fill up the vacancy in the office of the President. This has been provided under Article 62. 

Clause (1) of Article 62 states that in case the vacancy has been caused normally by the expiration of the term of the office of the President, then an election to fill such a vacancy has to be completed before the expiration of that term.

Clause (2) provides for the instance when the vacancy is caused by other methods like death, resignation, removal (that is, impeachment), or by any other reason. In these cases, since the term has not been complied with, the election to fill the vacancy must take place as soon as possible. The maximum period within which the procedure for the new election must take place is six months from the date of the occurrence of such a vacancy. The new person elected will hold the office for a full term of five years, like the usual course, from the date on which he enters the office. 

It is pertinent to mention that the qualifications that are considered in the election of the new President are the same as the eligibility of the President elected in the normal course. The list of qualifications has been provided under Article 58, and they are as follows:

  1. Must be a citizen of India,
  2. Must have completed thirty-five years of age,
  3. Must be qualified for election as a member of the House of the People, that is, the Lok Sabha,
  4. Must not hold any office of profit under the Government of India, or any state government or any local authority controlled by such governments.

Conclusion 

The process of impeachment, though provided by the Constitution, has never been put into practice. No President has faced impeachment in the history of the Indian Constitution. Still, mention of the process has been made to cater to situations in which the President commits some wrong-doing or is proved incapable of carrying out the duties and responsibilities demanded by the position he holds. 

The inclusion of the procedure of impeachment in the Constitution ensures that the President is held accountable for any violation of the Constitution and for any misconduct during the term of his office. 

The process of impeachment, being a quasi-judicial process, requires a “special majority” of two-thirds of the total membership of the house. Along with it, the criteria of the joint committee investigation and the secret ballot system ensure that the principles of fairness, transparency, and due process are maintained. The procedure of impeachment upholds the constitutional government structure and is not a method to punish any individual. It upholds the principles of democracy and accountability and secures the position of the law above every individual.

Frequently Asked Questions (FAQs)

What is impeachment of the President?

In simple terms, it means the removal of the President from his office before the expiration of the term of the office.

Which Article of the Constitution talks about the impeachment of the President?

Article 61 of the Constitution of India.

What is the ground for impeachment of the President?

The President can be impeached in cases of violation of the Constitution.

How many Presidents have been impeached till date?

No President has been impeached in India as of now.

How many days of prior notice is to be given in case of impeachment?

At least 14 days of notice, in writing, are to be given before a resolution to impeach is moved.

What is the majority requirement in cases of impeachment?

The resolution to impeach must be passed by a majority of not less than two-thirds of the total membership of each House.

References 

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