DATE- 23-02-15
National Law Institute University
PROJECT ON
ANALYSIS OF PROCESS OF IMPEACHMENT OF PRESIDENT:
COMPARISON BETWEEN INDIA AND USA
Submitted to: Submitted By: KanishkDevesh
Prof. KuldeepKaur Roll No: 2014ballb02
Barrister at law from Linken’s Inn Enrolment No: A-1384
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ACKNOWLEDGEMENT
I want to express my much obliged expressions and appreciation to my Constitutional Law
ProfessorMiss. Kuldeep Kaur, who gave me the brilliant chance to finalize this glorious research
subject i.e. ‘Impeachment of President’ which has helped me pick up a mess of viewpoint about
the process of impeachment of president.
All through the exploration period, I have been guided by my professor at whatever point I
confronted any obstacles or was in a state of daze not having the capacity to resolve the
intricacies of the subject.
I want to thank my University, National Law Institute University, Bhopal, for giving me the
opportunity to be a part of a novel exploration turned educational program which without a doubt
helps the comprehension of the subject. I likewise want to thank my guardians, guides and well-
wishers who have been a consistent underpin and have sufficient energy and again looked into
my work and have give their experiences on the matter. Thank You.
KanishkDevesh
2014ballb02
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INTRODUCTION
The Indian constitution is an amalgamation of constitutions of several other countries like
America, Australia, Ireland, Japan, Canada, Weimar constitution of Germany, etc. But since
India was colonized by the British Empire, thus a major chunk of the constitutional features is
borrowed from the British constitutional system1. One of those features include that there should
be a head of the state to govern the country which, in Britain is the queen and in India it is the
president. State, herein, refers to the government and parliament of India and the government and
the state legislature of each of the states and all the local or other authorities within the territory
of India or under the control of the government of India.2
In presidential form of government (e.g. that of U.S.A.), the president is the real executive, he is
the head of state as well as the head of the executive; but in parliamentary form of government
(e.g. that of U.K. and India), the president is the nominal executive and the Cabinet is the real
executive.3
Even though the president is nominal head, but still he is The Head of the state. Thus, he cannot
be removed from his position without any strong based reason. The Article 61 of the Constitution
of India provides for the process of impeachment of the president. Here, in this project report we
will analyze the procedure to impeach the president as described in the constitution.
1Britain does not have a written codified constitution.
2Joshi, N.The Constitution of India (1950); bare act; 2008, All India Reporter Pvt. Ltd.; pp.6-7
3Kaur, K. The Constitutional Law Of India,2015, NLIU, pp. 103
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TABLE OF CONTENTS
Contents
IMPEACHMENT AND IT’S ORIGIN
PRESIDENT 5
PROCEDURE FOR IMPEACHMENT OF PRESIDENT IN INDIA 6
POSITION IN UNITED STATES OF AMERICA 8
CONCLUSION 10
BIBLIOGRAPHY 11
REFERENCES 11
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IMPEACHMENT
PRESIDENT
The Chapter one of the Part five of the Constitution of India deals with “The Executive” i.e. the
president and the Vice president of which Articles 52-62 deal with the president, his powers, his
manner of election and his removal. President, being the head of the state, has many powers viz.
grant of pardon in certain cases, acting as a head of all the army forces of the country, etc.
A president may be any person who is a citizen of India, aged over thirty five years of age and is
qualified for election as a member of the house of people and he should not be holding any office
of profit. Such a person is then elected by an electoral college consisting of members of
parliament and those of legislative assemblies of all the states wherein:
1. Every elected member of the legislative assembly of a state shall have as many votes as
there are multiples of one thousand in the quotient obtained by dividing the population of
the state by the total number of the elected members of assembly.
2. If, after taking the said multiples of one thousand, the remainder is not less than five
hundred, then the vote of each member referred to in sub clause (a) shall be further
increased by one;
3. Each elected member of either house of parliament shall have such number of votes as
many may be obtained by dividing the total number of votes assigned to members of the
legislative assemblies of the states under sub clauses (a) and (b) by the total number of
the elected members of both houses of parliament, fractions exceeding one-half being
counted as one and other fractions being disregarded.
The president holds his office for a term of five years unless he resigns or violates the
constitution. Thus, when the president is elected with such a long procedure then his removal
cannot be an easy task. Thus, the supreme law of the land i.e. the constitution provides for
the process of removal under article 61.
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PROCEDURE FOR IMPEACHMENT OF PRESIDENT IN INDIA
The Article 61 of the constitution of India provides for procedure for the impeachment of
president. The language of the article says-
(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 charges 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 for their intention to move the
resolution, and
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 the 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 at 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
caused 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.
We can see that Article 56 of the Constitution of India says that the President can be removed
from his office for violation of the Constitution by way of impeachment. The Websters’
dictionary says the meaning of impeachment as “to remove from office especially for
misconduct”; “to charge (a public official) with a crime done while in office”
The language of the Article 61 can be described in following steps-
1. The motion to prefer charge against the President for violation of Constitution can be
initiated in either House of Parliament.
2. The motion must have the support of not less than one-fourth of the total number of
members in the House.
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3. Fourteen days’ prior notice of intention to remove the President should be given.
4. The motion must be passed by the majority of not less than two-thirds of the total
membership of the House.
5. The charge shall be investigated by the other house.
6. If, after investigation, the House finds the President guilty, a resolution is to be passed in
that house by not less than a majority of two-thirds of the total membership of the House.
The resolution shall have the effect of removing the president from the date it is passed.
In India, so far, no president has been impeached.
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POSITION IN UNITED STATES OF AMERICA
In United States of America the form of government, unlike India, is a presidential form of
government. Here, the president is not merely a nominal or constitutional head of the state
but he is the main executive head of the United States. In USA the president’s election
is an indirect vote in which citizens cast ballots for a slate of members of the U.S. Electoral
College; these electors in turn directly elect the President and Vice President.According to
Section four of the Article 2 of the constitution of USA,“The President, Vice President and
all civil Officers of the United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other High crimes and Misdemeanors.”In the
impeachment process the House of Representatives has the sole power of impeaching, while
the United States Senate has the sole power to try all impeachments.
In the House of Representatives, the House Judiciary Committee decides whether or not to
proceed with the impeachment process. If they do, following steps are followed for the
purpose:
● The chairman of the Judiciary Committee will propose a resolution calling for the
Judiciary Committee to begin a formal enquiry into the issue of impeachment.
● Based on the enquiry, the Judiciary Committee will send another resolution to the full
house stating that impeachment is warranted and why that impeachment is not called
for.
● The full House will debate and vote for each article of impeachment.
● Should any one of the articles of impeachment be proved by simple majority vote, the
president will be “impeached”. After this the Senate handles the trial.
● In the senate, when the articles of impeachment are received from the House, the
senate formulates the rules and procedures for holding a trial.
● A trial will be held. The president will be represented by his lawyers. A select group
of house members will serve as prosecutors. The chief justice of the supreme court
will preside with all the hundred senators acting as jury.
● The senate will meet in private session to debate a verdict.
● The senate, in open session will vote on a verdict. A 2/3 vote of the senate will result
in conviction.
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● The senate will vote to remove the President from office.
● The senate may also vote by simple majority to prohibit the President from holding
any public office in future.
In the history of United States of America, till now two presidents have been impeached, viz.
Andrew Johnson in 1868 and Bill Clinton in 1998 but both of them were acquitted in trials by the
Senate. Articles of impeachment against Richard Nixon were passed by the House Judiciary
Committee in 1974 but Nixon resigned the presidency before impeachment resolutions could be
considered.4
4http://en.wikipedia.org/wiki/Impeachment_in_the_United_States#Impeachment_of_a_U.S._President
last visited on 8:18 pm on 18-2-15
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CONCLUSION
Thus from the above discussion we can conclude that impeachment is one such procedure where
the president is removed from his office when he has done something which is against the
constitution. The framers understood quite clearly that the constitutional system they were
creating must include some ultimate check on the conduct of the executive, particularly as they
came to reject the suggested plural executive. While insistent that balance between the executive
and legislative branches be maintained so that the executive would not become the creature of
the legislature, dismissible at its will, the framers also recognized that some means would be
needed to deal with excesses by the executive. Impeachment was familiar to them. They
understood its essential constitutional functions and perceived its adaptability to the American
contest.
While it may be argued that some articles of impeachment have charged conduct that constituted
crime and thus that criminality is an essential ingredient, or that some have charged conduct that
was not criminal and thus that criminality is not essential, the fact remains that in the English
practice and in several of the American impeachments the criminality issue was not raised at all.
The emphasis has been on the significant effects of the conduct-- undermining the integrity of
office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the
governmental process, and adverse impact on the system of government. Clearly, these effects
can be brought about in ways not anticipated by the criminal law. Criminal standards and
criminal courts were established to control individual conduct. Impeachment was evolved by
Parliament to cope with both the inadequacy of criminal standards and the impotence of courts to
deal with the conduct of great public figures. It would be anomalous if the framers, having barred
criminal sanctions from the impeachment remedy and limited it to removal and possible
disqualification from office, intended to restrict the grounds for impeachment to conduct that was
criminal.
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BIBLIOGRAPHY
1. Mahendra Prasad Singh, V.N. Shukla's Constitution of India (12th, Eastern Book Co, 02
May 2013)
2. M. P. Jain, INDIAN CONSTITUTIONAL LAW (7th, LexisNexis, 2013)
3. Joshi, N. The Constitution of India (1950); bare act; 2008, All India Reporter Pvt. Ltd.;
pp.6-7
4. Kaur, K. The Constitutional Law Of India, 2015, NLIU, pp. 103
REFERENCES
1. www.wikipedia.org
2. www.google.com
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