Competitive Exams: Political Science Study Material Impeachment of President in India

Impeachment of the President (Art. 61)

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 a 2/3rd 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.

Types of Veto

  • Absolute veto, that is, withholding the assent to the bill.
  • Qualified veto, which can be overridden by the Legislature with a higher majority.
  • Suspensive veto, which can be overridden by the Legislature with an ordinary majority.
  • Pocket veto, that is, delay in giving assent to the bill.

Article 72

  • Pardon: Completely absolves the offender

  • Reprieve: Temporary suspension of the sentence

  • Respite: Awarding a lesser sentence on special grounds

  • Remission: Reducing the amount of sentence without changing its character

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

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.

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

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.

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

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

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

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

  • 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?

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

  • 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.

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.

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

  • 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.

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

  • 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.

  • 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. Supreme Court on death penalty

  • 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.

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

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

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

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

  • 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.

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

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

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

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

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

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

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

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

  • 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.

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

  • The President gets a monthly salary of Rs. 50, 000.

  • 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.

  • 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.