IMPEACHMENT OF PRESIDENT
What is Impeachment?
Impeachment is a formal process by which a legislative body brings
charges against a public official for misconduct.
It is a remedy of last resort. It is used only in cases where the official
has committed serious offenses.
• Impeachment of the President of India (Article 61)
• According to Article 61 of the Constitution, the President may be impeached and
forced out of office before the end of his term.
• The ‘Constitution Act 1971’ (Twenty-sixth Amendment) gave India’s constitution
its first mention of impeachment. The amendment gave Parliament the power to
remove the President from office before the end of their term.
• The Parliament has the authority to remove the President from office. Although
the law of the land has established the procedure, impeachment trials have not
yet been brought against any president.
Grounds for Impeachment of President in India
Violation of the Constitution: The President can be impeached for
constitutional violations. Examples include
• Treason
• Bribery
• Corruption
• Abuse of power
• Gross misconduct
• Negligence of duty
• Violation of fundamental rights
• Death: Automatic removal upon the President's death.
• Resignation: The President can resign at any time. The resignation must
be submitted to the Vice President, who informs the Speaker of the Lok
Sabha.
• Invalid Election: If the Supreme Court invalidates the President’s
election, they are automatically removed from office.
Procedure of Impeachment of President of India
• The process of impeachment of the President in India carried out in the
Parliament is quasi-judicial in nature.
• The impeachment of the President in India can be initiated in both the
Lok Sabha and the Rajya Sabha.
• Notice and Proposal: A resolution containing the charge must be moved
with at least 14 days written notice, signed by not less than one-fourth
of the total members of the house.
• In this context, it is important to keep in mind two things:
• Nominated individuals of either House of Parliament may actually
participate in the impeachment of the President in India, although they
did not cast a ballot in his election.
• Elected members of state legislative assemblies and the union
territories of Delhi and Puducherry will not take part, although they cast
a ballot in the President’s election.
• Resolution: The resolution to prefer such charge must be passed by a
majority of not less than two-thirds of the total membership of the
house.
• If the Rajya Sabha brings the allegations, it will pass the resolution and
submit them to the Lok Sabha, which will review them and vote on them
if it believes them to be genuine
• Investigation: The other house of Parliament(Loksabha) investigates or
causes the investigation of the charge. The President has the right to
appear and be represented during this investigation.
• The President can choose legal representation, either self-represented,
through a lawyer, or via the Attorney General of India.
• Removal: If the investigating house passes a resolution by a majority of
not less than two-thirds of its total membership, declaring the charge
sustained, the President is removed from office from the date of the
resolution's passage.
• Total Membership: The two-thirds majority required for passing the
resolution is calculated based on the total sanctioned strength of each
house, regardless of absences or vacancies.
Impact of Impeachment of President
• Impeachment Process: The Parliament charges the President with
violating the Constitution (high crimes or misdemeanors).
• Impeachment is the sole constitutional penalty for such violations.
• Legal Representation: The President can choose legal representation,
either self-represented, through a lawyer, or via the Attorney General of
India.
• Article 361 Protections: The President cannot be interrogated or
compelled to appear in court while in office, except voluntarily.
• Courts can rule the President’s unconstitutional actions as unlawful
based on government-provided information.
• Post-Term Accountability: While in office, the President cannot be tried
or jailed.
• However, after leaving office, the President can be prosecuted and held
accountable for crimes committed during the tenure (Rameshwar
Prasad & Others vs Union of India, 2006).
some case laws
• In Dr. N.B. Khare v. Election Commissioner of India , the Supreme Court held
that election of the President could only be challenged after the completion of
the election, i.e., after the candidate is declared elected.
• After the election was over he again challenged the validity of the
Presidential election.
• The court held that since under section 14 of the Presidential and Vice
Presidential Election Act, 1952 an election could only be questioned by a
candidate at such election by 20 or 10 or more electors,
• Therefore Dr. Khare who was neither a candidate nor an elector was not
entitled to challenge the validity of the election of the President
• A.K Roy vs union of India and another AIR 1982 SC 710
• The issue revolved around the President's power to issue ordinances under
Article 123 of the Indian Constitution.
• The court observed The power of the President to issue an ordinance under
Article 123 is legislative, not executive.
• The Constituent Assembly envisioned the President’s ordinance-making power
as essential for the peace and good governance of the country
•.
• Highlighted that ordinance-making is a temporary legislative mechanism
to address urgent needs when Parliament is not in session.
• R.C. Cooper vs. Union of India, 1970.
• The issue pertained to whether an ordinance qualifies as "law" under
Article 21 of the Constitution.
• The court observed in the argument that "law" in Article 21 must exclusively
mean a law made by the legislature contradicts Articles 123(2) and 367(2).
• If ordinances were excluded from the definition of "law" in Article 21, they
would evade the limitations imposed by Article 13(2) on legislative power.
• Reinforces the principle that ordinances are temporary laws but remain bound
by constitutional safeguards, including those in Articles 13 and 21.
• D.C. Wadhwa vs. State of Bihar (1987)
• The issue is Continuous re-promulgation of ordinances by the Bihar
government
• The Supreme Court declared the practice of re-promulgating ordinances
without placing them before the legislature as unconstitutional
• Stressed that ordinances are temporary measures and cannot be a
substitute for legislative action.
T.V. Venkataraman vs. State (1972)
Abuse of ordinance-making power by issuing ordinances for non-urgent
matters.
The Court emphasized that ordinances must be issued only under
extraordinary circumstances requiring immediate action.
Highlighted that ordinances are intended for emergencies, not for regular
legislative purposes.
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