Impeachment of the President

1. Introduction Impeachment  is a formal process in which an official is accused of unlawful activity, the outcome of

which, depending on the country, may include the removal of that official from office as well as criminal or civil punishment. Impeachment is the first of two stages in a specific process for a legislative body to remove a Government official without that official's agreement. The second stage is c onviction. Impeachment is so rare that the term can be misunderstood. A typical misconception is to confuse it with involuntary removal from office. In fact, it is only a legal statement of charges, paralleling an indictment in criminal law. An official who is impeached faces a second legislative vote (whether by the same body or another), which determines conviction, or failure to convict, on the charges embodied by the impeachment. Most Constitutions require a supermajority to convict. The word "impeachment" derives from Latin roots expressing the idea of becoming caught or entrapped, and has analogues in the modern French verb empêcher (to prevent) and the modern English impede . The process should not be confused with a recall election. A recall election is usually initiated by voters and can be based on "political charges", for example mismanagement, whereas impeachment is initiated by a constitutional body (usually a legislative body) and is usually based, but not always, on indictable offences. The process of removing the official is also different. Impeachment is a British invention. Following the British example, the Constitutions of Virginia (1776) and Massachusetts (1780) and other States thereafter adopted the impeachment doctrine. In  private organizations, a motion to impeach can be used to prefer charges. 1.1 Process of Impeachment

The President of India  is the head the head of state of the Republic the Republic of India. The India. The President is the formal head of the executive, the executive, legislature  legislature and judiciary and judiciary of India and is thecommander-in-chief thecommander-in-chief of the Indian the Indian Armed Forces. The President is indirectly elected by elected by the people through elected members of the Parliament of India (Lok Sabha and Rajya and Rajya Sabha) as Sabha) as well as of the statel the  statelegislatures(Vidhan egislatures(Vidhan Sabhas), and serves for a term of five years. Historically, ruling party (majority in the Lok Sabha) nominees (for example, United example, United Progressive Alliance nominee Shri nominee Shri Pranab  Pranab Mukherjee) have Mukherjee) have been elected or largely 1

elected unanimously. Incumbent presidents are permitted to stand for re-election. A formula is used to allocate votes so there is a balance between the population of each state and the number of votes assembly members from a state can cast, and to give an equal balance between State Assembly members and the members of the Parliament of India.  If no candidate receives a majority of votes, then there is a system by which losing candidates are eliminated from the contest and their votes are transferred to other candidates, until one gains a majority. Although Article 53 of the  Constitution of India states that the President can exercise his or her  powers directly or by subordinate authority, with few exceptions, all of the executive authority vested in the President are, in practice, exercised by the popularly elected Government of India,  headed by the Prime Minister.  This Executive power is exercised by the Prime Minister with the help of the Council of Ministers. The President of India resides in an estate in New Delhi known as the Rashtrapati Bhavan (which roughly

translates

as President's

Palace).

The

presidential

retreat

is The

Retreat in Chharabra, Shimla and Rashtrapati Nilayam ( President's Place) in Hyderabad. 1.2 Removal

The President may be removed before the expiry of the term through impeachment. A President can  be removed for violation of the Constitution of India. The process may start in either of the two houses of the Parliament. The house initiates the process by levelling the charges against the President. The charges are contained in a notice that has to be signed  by at least one quarter of the total members of that house. The notice is sent up to the President and 14 days later, it is taken up for consideration. A resolution to impeach the President has to be passed by a special majority (two-third majority of the total number of members of the originating house). It is then sent to the other house. The other house investigates the charges that have been made. During this process, the President has the right to defend oneself through an authorised counsel. If the second house also approves the charges made by special majority again, the President stands impeached and is deemed to have vacated his/her office from the date when such a resolution stands passed. Other than impeachment, no other penalty can be given to the President for the violation of the Constitution.

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 No president has faced impeachment proceedings so the above provisions have never been used.

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1.3 Reason for Impeachment

The main ground on which the President can be impeached is if he acts in an unconstitutional manner. Either house of the Parliament can initiate the impeachment procedure. The charge must be th

framed in a proposal format and has to be signed by 1/4  members of the particular House initiating the impeachment procedure. A 14 days notice has to be served to the president mandatorily, before  passing the resolution. rd

After serving the notice the house is required to pass the resolution with atleast 2/3  majority rd

(consent of 2/3   members of the house), failing which the matter will be transferred to the other House of Parliament. If one of the Houses of the Parliament frames the charges, the other house is under an obligation to investigate the matter. The President is bestowed with the right of defending his own contention either through a lawyer or all by himself. Even after the investigation conducted by the second house, the house fails to pass the resolution by rd

not less than 2/3   majority, the President stands impeached automatically from his office from the date since which the motion is passed .

Let us find out the list of Presidents of India: th

th

1. Dr. Rajendra Prasad –  26  Jan 1950 to 13  May 1962 th

th

2. Dr. S. Radhakrishnan –  13  may 1962 to 13  May 1967 th

rd

3. Dr. Zakir Hussain –  13  May 1967 to 3  May 1969 rd

th

4. V.V. Giri (Vice-President) –  3  May 1969 to 20  July 1969 th

th

5. Justice M. Hidayatullah –  30  July 1969 to 24  August 1969 th

th

6. V.V. Giri –  24  August 1969 to 24  August 1974 th

th

7. F. AIi Ahmed –  24  August 1974 to 11  Feb 1977 th

th

8. B.D. Jatti –  11  Feb 1977 to 25  July 1977 th

th

9.  N. Sanjiva Reddy –  25  July 1977 to 25  July 1982 th

th

10. Gaini Jail Singh –  25  July 1982 to 25  July 1987 th

th

11. R. Venkataraman –  25  July 1987 to 25  July 1992

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President of India

http://en.wikipedia.org/wiki/President_of_India#Removal 3

th

th

th

th

12. Dr. S.D. Sharma –  25  July 1992 to 25  July 1997 13. K.R. Narayanan –  25  July 1997 to 25  July 2002 th

th

14. Dr. A.P.J. Abdul Kalam –  25  July 2002 to 25  July 2007 th

th

15. Mrs. Pratibha Patil –  25  July 2007 to 25  July 2012 th

16. Mr. Pranab Mukherjee –  25  July 2012 till date

Vacancy of the Office of the President: The Vice President is appointed to act as the President in

exceptional cases where the office of the President stands vacant due to sudden death, removal or the resignation of the President. In the absence of the Vice President the Chief justice or the senior most  judge of the Supreme Court can act as the President. The time duration to conduct an election after the vacancy is 6 months. In the history of India Justice Hidayatullah is the only judge who has discharged the duties of the President in 1969 as he was the Chief Justice of the Supreme Court. He is also the only person to have discharged the duties of the President in two different capacities and occasions, once in the year 1969 when he was the Chief Justice of the Supreme Court and in 1982 when he was serving as the Vice President of India.

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Impeachment process of the President of India http://www.edurite.com/blog/impeachment-process-of-the-president-of-india/2446/# 4

2.

The

President

of

India:A

constitutional

Perspective(Legal

Knowledge,CLAT2013) The following information is about the position of President of India provided by the Indian Constitution. All the aspirants MUST be aware of this information The president of India is the executive head of State and First Citizen of India. The executive powers vested in the President are to be exercised on the advice of the council of Ministers responsible to the  parliament. The 42nd amendment to the Constitution has made it obligatory on the part of the President to accept the advice of the Council of Ministers.

2.1 Election Process

The president of India indirectly elected through "Electoral College" consisting of Elected members of both the Houses of Parliament & elected members of the Legislative Assemblies of the states. According to the 70th Amendment Act, 1992, the expression "States" includes the National Capital Territory of Delhi and the Union Territory of Pondicherry. The total voting strength of the parliament is equal to the total voting strength of all state assemblies together. The Supreme Court of India inquires all disputes regarding President's election. After electing the president takes OATH in  presence of Chief Justice of India, or in absence of Chief Justice, senior most judge of SC.In case the office falls vacant due to the death, resignation or removal, the Vice-President acts as President. If he is not available then Chief Justice of the Supreme Court, if not then senior most judge of the Supreme Court shall act as the President of India. The election is to be held within 6 month of the vacancy. 2.2 Eligibility

He/She must be a citizen of India. Completed 35 yrs of age Eligible to be a member of Lok Sabha Must not hold any Govt. Post. except (President, Vice-President, Governor of any State, Minister of Union or State) Working Terms An elected president is eligible to hold his/her office for the 5yrs term. And as per the Article 57 there is no upper limit on the no. of times a person can become President. He/She can give resigation to Vice President before his/her full term. 5

2.3 Impeachment (Article 61)

The President can be impeached only on the ground of violation of Constitution (This impeachment  procedure called Quasi-judicial procedure). The impeachment procedure can be initiated in either House of the Parliament. The charge must come in the form of a proposal which must be signed at least one-fourth of the total membership of that house. Before the resolution could be passed, a fourteen days notice must be given to the President. If after the notice, the House passes the resolution by a majority of not less than two-third membership of that House, the matter will be referred to the other House. After the charges are framed by one house, the other House investigates them. At this time President has the right to defend himself either in person or through his lawyer. If after the investigation, the other house passes the resolution by not less than two-third majority of that House, the President stands impeached from his office from the date on which the motion is so  passed.

2.4 Powers of President 2.4.1 Executive Power

Appoints PM, ministers, Chief Justice and judges of Supreme Court and High Courts, chairman and members of UPSC, Comptroller and Auditor General, Attorney General, Chief Election Comissioner and other members of Election Commission, Governors, Members of Finance Commission, Ambassadors etc. He/ She directly administers the Union Territories through the Lt. Governor, Commissioner or Administrator. 2.4.2 Judicial Power

The President's pardoning power comprises a group of analogous powers like pardon, reprieve, remission, respite and communication. Appoint the Chief Justice and judges of Supreme Court and High Court 2.4.3 Diplomatic Power

Represents country in international forums. Sends ambassadors and receives diplomats. International treaties and agreements are concluded on his behalf. 2.4.4 Financial Power

All money bills can originate in Parliament only o n recommendation of President.  No demand for a grant can be made except on his recommendation. 6

He/She can make advances out of the Contingency Fund of India to meet any unforeseen expenditure. Appoints Finance Commission (after every 5yrs) that recommends distribution of taxes between Union and State Govts. 2.4.5 Military Power

He is the Supreme Commander of the Defense Forces in India. Appoints Chiefs of Army, Navy and Air Force. Declares wars and concludes peace subject to the approval of the Parliament. 2.4.6 Emergency Power

The President can promulgate 3 types of Emergencies: (i)National Emergency (Article 352), (ii)State Emergency (President Rule Article 356), (iii)Financial Emergency 2.4.7 Legislative Powers

Addresses the first session after general elections and at the commencement of the first session of each year. Can send messages to both the Houses, whether with respect to a Bill pending in the Parliament or otherwise. Can summon and prorogue the sessions of the 2 houses & can dissolve Lok Sabha.. Can address both the houses jointly or sepa rately. He/She can appoint any member of the Lok Sabha to preside over its proceedings when both the offices of Speaker and the Deputy Speaker fall vacant simultaneously.  Nominate 12 members of Rajya Sabha.  Nominates 2 members of Anglo-Indian community in Lok Sabha if they haven't received adequate representation. Can enact laws through ordinance when the parliament is in recess (Article 123). These ordinances must be passed by parliament within 6 weeks of reassembly. His/Her prior recommendation or permission is needed to introduce certain types of Bills boundaries of a State, a Money Bill etc. http://www.gyancentral.com/forum/law-preparation/legal-aptitude-preparation/7145-president-indiaconstitutional-perspective-legal-knowledge-clat2013.html

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3. ARTICLE 61 Procedure for impeachment of the President The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next article in the series on constitutional provisions in order to aid our readers in understanding them. Copyright

©

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Under Art. 61 of the Constitution, the President of India can be impeached for the violation of the Constitution, which is solely to be decided by the Parliament. The impeachment procedure is quasi judicial in nature because after a Resolution to this effect is passed by the originating House, by a2/3rd majority of the strength of the House (resolution supported by not less than 25% of the members of the House and to be moved only after a prior notice of 14 days to the President), the other House sets up a Committee to investigate the charges against the President. The President can defend himself by taking service of the Attorney-General of India or any other lawyer of his choice. If the second House also passes the Resolution with the same 2/3rd majority of the strength of the House, the President stands impeached. 3.1 Types of Veto 

Absolute veto, that is, withholding the assent to the bill.

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Qualified veto, which can be overridden by the Legislature with a higher ma jority.

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Suspensive veto, which can be overridden by the Legislature with an ordinar y majority.

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Pocket veto, that is, delay in giving assent to the bill.

3.2 Article 72 

Pardon: Completely absolves the offender

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Reprieve: Temporary suspension of the sentence

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Respite: Awarding a lesser sentence on special grounds

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Remission: Reducing the amount of sentence without changing its character

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Commutation: Substitution of one form of punishment for another form which is of a lighter character.

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3.3 Death penalty and the power of pardon 

The Supreme Court's judgement lays down that death sentence should be awarded in the rarest of rare cases.

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There is a need for the government to look at the law on pardon.

3.4 Role of President & Governor 

Under Article 72 (1) (c), the President has the power to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the law provides for a death sentence.

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The Constitution provides similar powers to the Governor under Article 161 .

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This itself requires clarification of these powers. Are these powers concurrent?

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If so, is the power of pardon exercised by the Governor final and not reviewable by the President? Apparently, it is not.

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Where the President has rejected a mercy petition, could the Governor entertain another petition and accept it?

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Dhananjoy Chatterjee submitted his second petition to the Governor of West Bengal after the President rejected the first mercy petition. Should a review in such cases not be barred?

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To avoid such eventualities, there should be a power of suo motu review by the President.

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These parallel powers have also led to a decision by the Governor of Tamil Nadu to commute the death sentence of Nalini, accused in the assassination of the late Rajiv Gandhi, while the sentence of three others stands but remains unexecuted in the absence of a decision on their petition to the President.

3.5 Present Scenario 

The number of mercy petitions pending with the President Abdul Kalam from convicts on death row has risen to 20 in November 2005.

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The NDA government did not advise President A. P. J. Abdul Kalam to grant pardon in any of the earlier cases.

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President Kalam referred these petitions again to the Ministry of Home Affairs for a possible review of the previous government's decision shortly after the UPA government assumed office last year.

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The Ministry reiterated the advice tendered to him by the NDA government, saying those cases did not deserve the President's mercy.

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President Kalam felt that, the Home Ministry, before recommending any action on a petition, should consider the sociological aspect of the cases. Also, the Ministry should examine the humanist and compassionate grounds in each case; these grounds include the age of the convict and his physical and mental condition.

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If the President disagrees with the Home Ministry's advice, he has the option in practice to avoid taking a decision on these petitions, as some of his predecessors have done. The Supreme Court has held in the Triveniben case (1989) that inordinate delay in taking a decision on mercy  petitions by the President could itself be a ground for commuting a sentence of death, since it causes so much mental torture for the convict. S upreme Court on death penalty

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In the Bachan Singh case (1983), the Constitution Bench of the court concluded that the award of death penalty did not violate Article 14 or 21 of the Constitution.

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But it ruled that death penalty should be awarded in the rarest of rare cases

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In doing so, the court said, the President does not amend or modify or supersede the judicial record The President acts in a wholly different plane from that in which the court acted, it held.

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The court further held: The President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded b y the consideration given to it by Supreme Court.

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The court held in this case that the President had the discretion even to hear the convict orally.

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The 44th Constitutional Amendment Act of 1978 has authorised the President to require the Council of Ministers to reconsider such advice either generally or otherwise. However, he ‘shall’ act in accordance with the advice rendered after such reconsideration.

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The President has no Constitutional discretion, he has some situational discretion.

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The President can act in his discretion under the following situations:

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Appointment of Prime Minister when no party has a clear-cut majority in the Lok Sabha.

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Dismissal of the Council of Ministers when it cannot prove the majority in the Lok Sabha.

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Dissolution of the Lok Sabha if the Council of Ministers has lost its majority.

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The President is designated as the first citizen of India. 10

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The President does not hold membership of either House of the Parliament or the State Legislatures.

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The President along with the Lok Sabha and the Rajya Sabha is a part of the Parliament.

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The nomination of a candidate for the post of the President has to be proposed by 50 members and supported by another 50 members of the Electoral College.

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There is no limit as to how many times a person can become the President.

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The President gets a monthly salary of Rs. 5 0, 000.

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In any case, if both the President and the Vice-President are not available to perform the duties of the President, the Chief Justice of Supreme Court discharges the duties of the President and in his absence the next senior most Judge of the Supreme Court performs the functions of the President.

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Only once in the History of India, Justice M. Hidaytullah, Chief Justice of Supreme Court discharged the duties of the President from July 20, 1969 to August 20, 1969

http://www.examrace.com/Study-Material/Political-Science/Impeachment-of-the-President-Art61.html

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Conclusion

The word 'Impeachment' is an origin of British convention which means to remove a Government official without any official agreement and after the impeachment conviction has been provided to that official. In India, it is a quasi-judicial procedure and President can only be impeached on the ground of violation of the Constitution.

http://lawyersupdate.co.in/LU/4/49.asp

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