Comparative Analysis of Impeachment Procedure of President of India and the U.S.

page-title: "Comparative Analysis of Impeachment Procedure of President of India and the U.S."
url: https://articles.manupatra.com/article-details/Comparative-Analysis-of-Impeachment-Procedure-of-President-of-India-and-the-US
date: "2023-04-06 08:45:56"

The term "Impeachment" is derived from old French "empeechier" meaning "to hinder or impede"1 and refers to the act of formally accusing a public official of a serious offence in connection with his/her job. In most countries, it is a remedy provided under their respective Constitutions to address serious cases of professional misconduct on part of a public official, usually of high post. While Impeachment itself results in removal in some jurisdictions, in others it is the first step towards removal, the second step being Conviction.

The first recognised case of impeachment dates back to 1376 England, where the Good Parliament2, headed by Peter de la Mare impeached William Latimer, 4th Baron Latimer, amongst others3, on charges of corruption and abuse of power. It was developed by the Parliament in England as a measure of control over the King and had been called "the most powerful weapon in the political armoury, short of civil war".4 At the hands of the British Parliament it was used as a tool to create a more responsible Government and to redress the power imbalances between the Monarch and the Parliament as and when they occurred5. Later on, the U.S. adopted the impeachment practices of Britain including the Impeachment procedure of the President6, and its provisions of Impeachment of President greatly influenced the minds of the drafters of the Indian Constitution.

The President, be it in a parliamentary system or presidential system of government, is a figure which represents the dignity and integrity of the State and is accorded with powers and duties of great importance. Jurisdictions all across the world, acknowledging that these powers accorded to the President are susceptible to misuse, have provided for impeachment of the President as a check against such misuse of Presidential powers. The manner, procedure, and grounds upon which the impeachment of a President can commence is usually provided for in the Constitution of the respective countries, moulded to best fit their needs and interests.

The President of India is officially known as the President of the Republic of India and is the Head of the State. He is elected by an Electoral College comprising of the elected members of both Houses of Parliament and the elected members of the Legislative Assemblies of the States as per Article 54 of the Constitution of India.

The only condition for impeachment of the President in India is "violation of the constitution" as per Article 56 (1) (b) of the Constitution of India. Article 61 further provides for the procedure of impeachment of President. Accordingly, impeachment proceedings against the President can be initiated by either of the houses, provided that the charges are signed by at least 1/4 of the members of that house. Thereafter, a 14 days‘ notice is served to the president. Then the resolution is voted upon in the house, and requires a special majority of not less than two thirds of the total membership of the House. It is then sent to the other house which investigates upon the charges. Such a trial is presided over by the presiding officer of the house in which the charges are to be investigated. Lastly, if a resolution is passed as a result of such investigation by a special majority of at least 2/3rd of the total membership of the investigating House, declaring the charges against the President to have sustained, then that would result in removal of the President from his office from the date of passing of the resolution. It is to be noted that according to Article 61 (3) of the Constitution gives the President the right to appear himself and to be represented during the investigation of charges, granted in consonance with the commands of the principle of Audi alterum partum. Till date the provision for impeachment of the President has never been used.

The only ground for impeachment of the President is "violation of the Constitution". However, the words "violation of the constitution" don‘t find their definition anywhere in the Constitution. Prima facie the Constitution can be violated in many ways, be it by non-conformance with the Oath prescribed under Article 60, which uses vague and uncertain words such as "to preserve, protect and defend the Constitution" or by failing to carry out other functions prescribed in the Constitution. This point was raised by Pandit Bhargava who argued that the words "violation of the Constitution" are vague and require clarification7.

Kazi Syed Karimuddin argued in favour of insertion of the words "treason, bribery or other high crimes and misdemeanours", as used in the American Constitution after the words "violation of the Constitution"8. However, Dr. Ambedkar was of the opinion that the phrase "violation of the Constitution" is wide enough to also include treason, bribery or other high crimes and misdemeanours as used in the American Constitution. He also opined that a violation of the oath taken by the President would also amount to violation of the Constitution9.

The Courts have time and time again declared numerous laws "unconstitutional" and these declarations rest on the premise that the impugned law, or part thereof, is violative of fundamental rights enshrined under Part III of the Constitution. In the case of Keshavananda Bharti v. Union of India10, the Court introduced the doctrine of Basic Structure and held that any law in contradiction with the Basic Structure of the Constitution shall also be declared unconstitutional. In the case of Minerva Mills v. Union of India11, the Court further clarified the Doctrine and stated:

"Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity".

There is no doubt that Preamble is also a part of the Constitution12, so is Part IV whereby the Directive Principles of State Policy have been enshrined. However, owing to their non-enforceable nature an act in contravention of the Preamble or the Directive Principles of State Policy cannot be held to be unconstitutional.

What may be deemed as a "violative of the constitution" has not been specifically defined under the Constitution. However, an act which is unconstitutional is necessarily violative of the Constitution. What one may conclude from the above procession is that the phase "violation of the Constitution" includes within itself treason, bribery or other high crimes and misdemeanours as under the American Constitution, and also includes any infringement of the Fundamental Rights, and any other act that may be deemed unconstitutional.

The President of the United States of America is the head of the state and the head of the Government of the United States of America. Article II of the US Constitution, hereafter referred to as the Constitution under this head, provides for the establishment of the executive branch of the US Government and vests the executive power upon the President.

Section 4 of Article II of the Constitution provides for impeachment of the President on grounds of treason, bribery, or other high crimes and misdemeanours. It is to be noted that in the United States, an impeachment does not result in removal from the office. It is the first step, which if followed by a conviction, results in removal from the office. As per Article I, Section 2, Clause 5 of the Constitution, the power of impeachment rests solely with the House of Representatives, and as per Article I, Section 3, Clause 6 of the Constitution, the Senate has the sole power to try the impeachment.

At the federal level, the impeachment is a three step procedure. Any member of the House of Representative can introduce the impeachment resolution against the President as per Section 603 of Jefferson‘s Manual. Furthermore, as per Section 604 of Jefferson‘s Manual, a direct proposition to impeach is regarded as "a question of high privilege" and such proposition at once supersedes all other business. Such impeachment resolution is then analysed by the U.S. House Committee on the Judiciary which frames the Articles of Impeachment, and upon gaining a simple majority the Articles are forwarded to the House of Representatives. If the House passes the Articles of Impeachment by a simple majority, the President stands impeached.

The indictments are then forwarded to the Senate for trial. The Senate Trial is presided over by the Chief Justice of the US Supreme Court. During these trials, the President can appear himself or be represented by a Representative. A Conviction in the Senate Trial requires a supermajority of 2/3rd of the present and voting and it is upon Conviction that the President stands removed from the Office.

A US President can be impeached for "Treason, Bribery, or other high Crimes and Misdemeanours". If a President is charged with multiple articles, any one of them may provide a ground for conviction13. The phrase "high crimes and Misdemeanours" has been given a broad interpretation. The phrase was borrowed from English practice where it first appeared in the impeachment of Michael de le Pole, the King‘s Chancellor and Earl of Suffolk in 138614. "High crimes and Misdemeanours" include abuse of power and trust, and included statutory as well as non-statutory offences15. The adjective "high" is interpreted to modify both Crime and Misdemeanours16 and it flows from this that for an offence to be ground for impeachment of the US President, it must be serious and substantial in nature. As to what constitutes a serious offence, Brown had stated:

"To determine whether or not an act or a course of conduct is sufficient in law to support an impeachment, resort must be had to the eternal principles of right, applied to public propriety and civil morality. The offense must be prejudicial to the public interest and it must flow from a wilful intent, or a reckless disregard of duty. . . . It may constitute an intentional violation of positive law, or it may be an official dereliction of commission or omission, a serious breach of moral obligation, or other gross impropriety of personal conduct that, in its natural consequences, tends to bring an office into contempt and disrepute".17

Although the Impeachment Procedure of President in the US and India both borrow the fundamental idea of impeachment from Great Britain, they nevertheless differ from each other, both procedurally as well as substantially. In India, Impeachment itself results in removal of the President from his office while an impeachment is regarded as an indictment in the US. It is the first step towards removal, the second step being Conviction.

Impeachment Procedure of President in US

Impeachment Procedure of President in India

Any member of the House of Representatives can introduce impeachment resolution. The House

Judicial Committee analyses the resolution,

frames charges and passes it upon a simple majority.

Either of the Houses may prefer the impeachment charges provided such charges are signed by at least 1/4th members of the preferring House.

Articles of Impeachment require simple majority to pass and upon such passing of the Articles the President stands impeached.

The Charges preferred require special majority to pass and upon such passing of the Charges, they are sent to the other House.

The Articles are forwarded to the Senate for trail and the Senate Trials are headed by the Chief Justice of the US Supreme Court.

The other House investigates upon the charges

preferred. Such investigation is headed by the

presiding officer of the House, i.e. Speaker of Lok Sabha or Chairman of Rajya Sabha.

If the Articles pass with a special majority in the Senate Trial, the President stands convicted and removed from the office.

If a resolution is passed as a result of such

investigation by a special majority of at least 2/3rd of the total membership of the investigating House, that results in impeachment and removal of the President from his office.

Impeachment itself does not result in a removal, but is regarded as indictment.

Impeachment itself results in removal of the

president from the office.

A US President may be impeached for Treason, Bribery, high crimes and other misdemeanours as per Article II, Section 4 of the US Constitution.

The only ground for Impeachment of the President is the violation of the Constitution as per Article 56 (1) (b) of the Constitution.

The Procedure of Impeachment is laid down under Article I and II of the US Constitution.

The Procedure of Impeachment is provided under Article 61 of the Constitution.

A total of three Presidents, namely Andrew

Johnson, Bill Clinton and Donald Trump, have been impeached so far.

No President has been impeached so far.

Impeachment of President is non-justiciable as per the Political Question Doctrine, as held in Nixon v. United States.

No question on justiciability of impeachment has arisen so far.

The phrase "violation of the Constitution" is broader than "treason, bribery, high crimes and misdemeanours" and encompasses within itself the latter. The US Supreme Court in the case of Nixon v. United States18 held that the sole power to try all impeachments rests with the Senate, and that such trial involves a political question that is not justiciable and reviewable in any court of law19. In the case of Baker v. Carr20, the Court held that:

"A controversy is non-justiciable i.e., involves a political question-where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it ...."

Interpreting it further in the Nixon‘s case the Court held that "political question doctrine is essentially a function of the separation of powers" and that the judicial institutions owe certain respect to the Political Department, and therefore the Court held that impeachment, being a political question, cannot be reviewed by a Court of Law.

As far as India is concerned, no question involving this premise as ever arisen before any Court of Law, owing primarily to the fact that no Indian President has been impeached so far. Article 361 (1) of the Constitution provides that a president‘s conduct may be brought under review by any Court, Body or Tribunal, if the same has been appointed or designated by either House of the Parliament for investigation of Charge under Article 61. Thus, both the Houses of Parliament have been given the power to appoint or designate any Court, Tribunal or body for bringing the conduct of the President under Review for investigation of charges.

From the above procession, one may conclude that the procedure of impeachment differs greatly in both the jurisdictions. The grounds for impeachment given under both the jurisdictions are also different. In India, the president may only be impeached for "violation of the Constitution" whereas in the U.S. treason, bribery, high crimes and misdemeanours are grounds on which the US president can be impeached and convicted. The phrase "violation of the Constitution" is broader than "treason, bribery, high crimes and misdemeanours" and encompasses within itself the latter. Nevertheless, it is a remedy provided under their respective Constitutions to address serious cases of professional misconduct on part of a public official of high post. It is expected that this remedy be used in good faith and for upholding the cardinal commands of Constitution.