Fixed Terms, Impeachment and the Separation of Personnel
Chapter Thirty
Syllabus topic 3, "Parliamentary and Presidential Democracy."
Pages 131 to 135 of 676
In one line
A presidential system needs impeachment because it has no vote of confidence, and impeachment works only because the executive does not sit in the legislature.
In the wording a student can write in an exam: in a presidential system the executive holds office for a fixed term and cannot be removed by a vote of no confidence, so removal for misconduct requires a judicial-style process conducted by the legislature, and the separation of personnel required by Article I section 6 of the United States Constitution is what allows the legislature to sit in judgment on an executive of which it is not part.
Why the three go together
Take them away one at a time and the system fails.
Without a fixed term the executive would be dismissible by a vote and the system would be parliamentary.
Without impeachment an executive who committed serious misconduct could not be removed at all before the term expired.
Without the separation of personnel the legislature trying the executive would be trying its own leaders, which is why the British procedure of impeachment fell into disuse once ministers came to sit in Parliament: the Commons would have been impeaching its own front bench and the Lords trying it.
The American procedure
The ground. Article II section 4: treason, bribery, or other high crimes and misdemeanours. The last phrase is the contested one, and the settled view is that it is not confined to indictable offences and is not unlimited.
The charge. Article I section 2 gives the House of Representatives the sole power of impeachment. A simple majority suffices.
The trial. Article I section 3 gives the Senate the sole power to try impeachments. When the President is tried, the Chief Justice presides. Conviction requires the concurrence of two thirds of the members present.
The judgment. Article I section 3 confines it to removal from office and disqualification from holding office, and provides that the party convicted shall nevertheless be liable to indictment, trial, judgment and punishment according to law.
The result in practice. Three Presidents have been impeached and none convicted, because two thirds of the Senate has never been assembled against a President of the majority party.
The Indian procedures, which are three separate things
Students confuse them constantly, so take them one at a time.
Impeachment of the President, article 61. The ground is violation of the Constitution. The charge is preferred by either House, on a resolution moved after fourteen days' notice signed by not less than one fourth of the total membership and passed by not less than two thirds of the total membership. The other House investigates or causes the investigation, the President has a right to appear and be represented, and a resolution of that House passed by not less than two thirds of its total membership removes the President from the date of the resolution.
Fixed Terms, Impeachment and the Separation of Personnel
Removal of a judge, articles 124(4) and 217. The ground is proved misbehaviour or incapacity, on an address of each House supported by a majority of the total membership and by not less than two thirds of the members present and voting. The word impeachment is not used in the Constitution for this, and the Judges (Inquiry) Act 1968 supplies the machinery.
A vote of no confidence in the government. Not in the Constitution at all. It rests on articles 75(2) and 75(3) and on the rules of procedure of the House, and it requires only a simple majority.
That third one is the point. The Indian executive is removable by a simple majority at any time. The American executive is removable only on two thirds of the Senate for a high crime.
The separation of personnel, compared
United States. Article I section 6 clause 2: no person holding any office under the United States shall be a member of either House during his continuance in office. Absolute.
India. The opposite. Article 75(5) requires a minister to be a member of a House within six months, so the executive must be in the legislature. Articles 102(1)(a) and 191(1)(a) disqualify a person for holding an office of profit under the government, but expressly save an office declared by Parliament or the State legislature not to disqualify, and the office of minister is not an office of profit for this purpose.
Switzerland. Article 144 of the Federal Constitution provides that members of the Federal Assembly, of the Federal Council and judges of the Federal Supreme Court may not at the same time be members of another of those authorities. That is a stricter separation of personnel than India has, in a system where the legislature elects the executive.
A worked example
An executive head is credibly accused of corruption in office.
United States. The House impeaches by simple majority; the Senate tries; conviction needs two thirds of those present; and whether or not he is convicted, he may afterwards be indicted and tried in the ordinary courts, because Article I section 3 says so expressly. Since 2024 the criminal route is complicated by Trump v. United States, 603 U.S. 593 (2024), which recognised absolute immunity for core constitutional powers and presumptive immunity for other official acts.
India. If the accused is the President, article 61 applies and the ground is violation of the Constitution, which corruption in office would satisfy. If the accused is the Prime Minister, there is no impeachment at all: the remedy is a no confidence motion requiring a simple majority, and prosecution in the ordinary courts, article 361 immunity applying only to the President and Governors.
Fixed Terms, Impeachment and the Separation of Personnel
That asymmetry is worth stating. India's most powerful officer is the one with no special removal procedure and no immunity, and its most protected officer is the one with almost no power.
The cases
Facts. K. Veeraswami v. Union of India, (1991) 3 SCR 189, concerned whether a judge of a High Court or the Supreme Court could be prosecuted under the Prevention of Corruption Act, or whether the removal procedure in article 124(4) was the only route.
Held, by a Constitution Bench. A judge is a public servant and can be prosecuted, but no criminal case shall be registered against a judge of the High Court or the Supreme Court without prior consultation with the Chief Justice of India, and if the Chief Justice is himself the person concerned the President should consult other judges.
Why it matters here. It settles that the constitutional removal procedure is not exclusive of the ordinary criminal law, which is the same principle Article I section 3 of the American Constitution states in terms.
Facts. Trump v. United States, 603 U.S. 593 (2024), concerned an indictment of a former President and a claim of immunity from criminal prosecution for acts within the outer perimeter of official responsibility.
Held, by six to three. Absolute immunity for the exercise of core constitutional powers; at least presumptive immunity for other official acts, rebuttable; no immunity for unofficial acts.
Why it matters here. It qualifies the American assumption that impeachment and the criminal law are two independent routes, and it should be cited whenever the accountability of a presidential executive is discussed.
Distinctions
| Vote of no confidence | Impeachment | |
|---|---|---|
| Ground | Loss of political confidence; none required | Specified misconduct |
| Majority | Simple, of those present and voting | Two thirds, of the trying chamber |
| Procedure | A motion and a division | A charge, a trial, evidence, a defence |
| Effect | The government resigns | Removal and disqualification from office |
| Available against | The council of ministers | The head of State, and in India judges |
| Where | India, United Kingdom, Ireland, Canada, Germany | United States; India under article 61 |
What beginners get wrong
"The Indian Prime Minister can be impeached." He cannot. Article 61 applies to the President. The Prime Minister faces a no confidence motion.
"Impeachment removes and punishes." In the United States it removes and disqualifies, and Article I section 3 expressly preserves the ordinary criminal liability.
"Judges in India are impeached." The Constitution uses removal on an address, not impeachment, in articles 124(4) and 217, and the machinery is in the Judges (Inquiry) Act 1968.
Fixed Terms, Impeachment and the Separation of Personnel
Limits and criticism
Impeachment is a political process with a judicial form. Two thirds of a chamber is a political number, and no American President has ever been convicted.
Article 61 has never been used. In seventy five years no Indian President has been impeached, which makes the procedure untested.
Removal of judges is nearly impossible. No Indian judge has been removed under article 124(4), and one motion in 1993 failed at the voting stage although the inquiry committee had found the charges proved.
Quick revision
- Fixed term, impeachment and separation of personnel hang together: each requires the others.
- United States: ground in Article II section 4; House charges by simple majority under Article I section 2; Senate tries under Article I section 3, two thirds of members present, Chief Justice presiding for a President.
- Judgment is confined to removal and disqualification; ordinary criminal liability is preserved.
- India: article 61 for the President, ground of violation of the Constitution, two thirds of the total membership of each House.
- Judges: removal on an address under articles 124(4) and 217, machinery in the Judges (Inquiry) Act 1968.
- The Prime Minister faces only a no confidence motion, requiring a simple majority.
- Separation of personnel: Article I section 6 in the United States; article 144 in Switzerland; the opposite in India by article 75(5).
Test yourself
1. Why does a presidential system need impeachment and a parliamentary system not? Because the presidential executive holds a fixed term and cannot be removed by a vote of confidence, so without impeachment there would be no way to remove an executive who committed serious misconduct before the term expired. A parliamentary executive holds office only while it commands a majority, so a simple majority can remove it at any time and no special procedure is needed.
2. Set out the American impeachment procedure with the provisions. The ground is treason, bribery, or other high crimes and misdemeanours, under Article II section 4. The House of Representatives has the sole power of impeachment, Article I section 2, by simple majority. The Senate has the sole power to try, Article I section 3, with the Chief Justice presiding when the President is tried, and conviction requires two thirds of the members present. Judgment extends only to removal and disqualification, and the party convicted remains liable to indictment and trial according to law.
3. Distinguish the three Indian removal procedures. Article 61 impeaches the President for violation of the Constitution, requiring two thirds of the total membership of each House. Articles 124(4) and 217 remove a judge for proved misbehaviour or incapacity on an address of each House supported by a majority of the total membership and two thirds of those present and voting. A no confidence motion removes the government by a simple majority and appears nowhere in the Constitution, resting on articles 75(2) and 75(3) and the rules of the House.
Fixed Terms, Impeachment and the Separation of Personnel
4. What does the separation of personnel contribute to impeachment? It makes the trial credible. Where the executive sits in the legislature, the chamber charging and the chamber trying would be judging their own leaders, which is why impeachment fell into disuse in the United Kingdom. Article I section 6 keeps American officers out of Congress, so the legislature is trying somebody it does not contain.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.