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Is the President of India Impeached or Removed or Both?


 
26 Jun

Is the President of India Impeached or Removed or Both?

Art.61deals with the Presidential impeachment and it is clearly and categorically titled “Impeachment”. But the Article also uses the word removal. Therefore, there is a need for closer analysis.

It is important to understand what impeachment means. Commonly, it is used synonymously with removal from office. However, the actual meaning is different. Impeachment is the process by which either House of Parliament levels charges against a Constitutional authority. Such a legislative move does not remove the authority from office. It sets in motion investigation by the other House or any other agency. If the charges are upheld and the other House passes a motion for removal with the stipulated majority, the authority is removed. Thus, impeachment is essentially the statement of charges that is endorsed by the legislature for investigation.

 

What does Art.61 actually say?

61. Procedure for impeachment of the President

  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.
 

Let's put it In simple terms

The Presidential impeachment for violation of the Constitution follows process as given below:

The charge may be preferred (initiated) by either House of Parliament. Conditions are the following:

• at least fourteen days' notice in writing
• motion should be signed by not less than one-fourth of the total membership of the House and
• such resolution should be passed by a majority of not less than two-thirds of the total membership of the House in which the resolution originates.

When a charge has been so preferred by either House of Parliament, the other House will investigate the charges or cause the charges to be investigated.The House that is in charge of investigation is presided over by the Speaker or the Chairman as the case may be. The President has the right to appear and be represented at such investigation in his defence. If the investigation upholds the charges of violation of the Constitution against the President and a resolution is passed by a majority of not less than two-thirds of the total membership of the other House, the President stands removed from the date on which the resolution is passed by the second House.

The President , however, continues to discharge his official functions during the period of investigation.

Thus, the steps in the process are:

  1. One House prefers the charges to impeach
  2. President is given 14 days notice as a matter of natural justice
  3. After the vote in the first House, the second House takes up the charges for investigation
  4. President can defend himself which is again a part of natural justice
  5. If the charge/s is/are proved, the second House passes a resolution of removal and
  6. President stands removed from that date.
 

What is noteworthy of the process?

Note that the majority required is 2/3rds of the total membership in each House unlike any other resolution in Parliament. Also, the first House impeaches- that is starts the process of removal by endorsing the investigation into charges of violation of the Constitution. The second House endorses the charges made by the first House. The end result is removal.

Some Constitutions allow the authority to continue in office while the inquiry proceedings are being conducted, some do not. In India, he continues to function till he is removed.

 

Which other Constitutional authorities are removed by Parliament and why is it not called impeachment?

In India, the term impeachment is used for the President because the procedure is as described above. No other Constitutional authority is removed according to this procedure and so this term is not used for any other office. For example, the Comptroller and Auditor General (CAG), judges of the Supreme Court and High Courts and the Chief Election Commissioner are removed. That is, the first House itself initiates the charges and takes up investigation which needs to be supported by the second House. The reason for removal is `proved misbehaviour or incapacity`. The number of members needed to submit the motion is 100 for Lok Sabha and 50 for Rajya Sabha which is less that what is needed for the president. The majority needed in each House is special majority which is less demanding.

 

So, is it impeachment or removal?

It has to be both. Initiation in the first House and authorisation of investigation by the same House is impeachment. Investigation and approval by the second House ends in removal. Art.61 uses both the words.

 

How does it take place in the USA?

In the United States, the process is similar. The Constitution of the United States gives Congress the authority to remove the president of the United States from office in two separate proceedings. The first one takes place in the House of Representatives which impeaches the President by approving articles of impeachment through a simple majority vote. The second proceeding, the impeachment trial, takes place in the Senate. There, conviction on any of the articles requires a two-thirds majority vote and results in the removal from office.We have seen the process in vivid detail inn 2019-20 when there was a futile attempt to impeach Donald Trump, the 45th President of the United States.

The difference between India and US is that in India either House of parliament can initiate the process while in the US, only the House can.

 

So, finally ,is the President impeached or removed?

The answer is simple: If it involves only one House , the House that gives consent to investigate charges, it is impeachment. If the charges are upheld and the other House says so, it becomes removal.




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