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Vacancy in the Office of the President: Impeachment, Acting President & Article 61 Explained

This topic explains when and how the office of the President becomes vacant, who acts as President, and the procedure of impeachment under the Constitution.

Vacancy in the Office of the President

Office of the President may fall vacant due to:-

  1. Death
  2. Leave
    Example:- Dr. Rajendra Prasad took leave during his daughter's marriage
  3. Resignation
  4. Setting aside of the election by the Supreme Court
  5. Impeachment

If the President resigns from office then it must be duly sealed and signed in person by the President himself and this resignation is addressed to the Vice President. He does not submit his resignation to anybody, rather he leaves the resignation in the office of the President and the Principal Secretary to the Office of the President and other senior officials, and then the Vice President, Prime Minister, CJI and Speaker of Lok Sabha are immediately informed of his resignation thereafter the Vice President shall act as the President. e.

If for any reason the Vice President (V.P.) is not available, then the Chief Justice of India (CJI) and if he is also not present then the senior-most judge of the Supreme Court shall act as the President. Whoever is appointed as Acting President gets all the salary, allowances, perks, privileges, rights and authorities equivalent to the President.

Within 6 months of vacancy a new President is elected in which the Acting President may also contest the election. If within these 6 months, the Acting President retiring from his original post then he shall be entitled to avail pension and other post-retirement benefits as the President.

Vice President Acting as President

If the Vice President is acting as the President, then he shall not preside over the Rajya Sabha during this period. This duty shall be discharged by the Deputy Chairman or any other member from the Committee of Presiding Officers.

Note: The Vice President receives a salary in the capacity of the ex-officio Chairman of Rajya Sabha. There is no separate provision for the salary of the Vice President.

Election Disputes

If there is any dispute in the election of the President or Vice President then it is directly and only challenged before the Supreme Court.

Dr. Khare vs Union of India – Supreme Court made it clear that:-

  1. The election can be challenged only by a member of the Electoral College or by the candidate himself.
  2. If in the meanwhile, the Election Commission has issued notification of the election, then the election proceedings cannot be stopped midway, because:
    • The term of office of the President is 5 years, and
    • Before the completion of tenure, it is constitutionally binding to get a new President elected.
  3. As the election shall be conducted as per the schedule decided by the Election Commission, and whoever wins the election, he will take the oath of office on a decided date and start discharging his duties.
  4. In the meanwhile, the Supreme Court will constitute a Bench which will examine the matter, and if the decision is pronounced to set aside the election of the President, then:
    • He shall be removed from the office of President.
    • A fresh election will be conducted within 6 months for the office of President.
    • In the meanwhile, functions discharged by him shall remain valid.

Impeachment → Article 61

→ Removal of President

Under Article 61, the term impeachment is used for the removal of the President, which means serious and grave violation of the Constitution.

Procedure of Impeachment

  1. A proposal to this effect can be presented in any House of Parliament.
  2. If 1/4th of the total strength of that House supports the proposal only then after 14 days notice meeting of that House shall be convened.
  3. In this meeting, charges against the President shall be framed for the violation of the Constitution.
  4. Thereafter voting shall take place and if 2/3rd majority of the total strength of this House passes the proposal only then it shall be forwarded to the other House.
  5. The other House acts as a jury which will investigate the charges against the President. At this point, the President shall have the right to present his viewpoint in person or through a counsel.
  6. After that, voting will take place in this House also, and if this House also passes the proposal by a 2/3rd majority of the total strength then the President shall be impeached or removed from office of the President.

Important Notes on Impeachment

  • After impeachment a separate prosecution and punishment shall be given.
  • After impeachment he shall not be entitled to avail any benefit of the office.
  • After impeachment he cannot be appointed to any post in the Union or State Government.
  • In the process of impeachment members of Vidhan Sabha shall not cast vote whereas they are entitled to do so in the election of the elected President. (For fast process)
  • In the process of impeachment, nominated members of Parliament will also cast their vote whereas they are not entitled to do so in the election of President.
  • Before removal through impeachment, all functions discharged earlier shall remain valid.
  • In India, no President has been impeached so far.
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