Supreme court shall inquire and decisions regarding all doubts and disputes arising out of or in connection with the election of a president per Article 71(1) of the constitution. the supreme court can remove the president for the electoral malpractices or upon being not eligible to be Lok Sabha member under the Representation of the People Act, 1951. Subject to Article 71 (3), parliament made applicable rules/procedure to petition the supreme court for resolving the disputes only that arise during the election process of the president but not the doubts that arise from his unconstitutional actions/deeds or changing Indian citizenship during the tenure of the president which may violate the requisite election qualifications. The president may also be removed before the expiry of the term through impeachment for violating the Constitution of India by the Parliament of India. The process may start in either of the two houses of the parliament. The house initiates the process by levelling the charges against the president. The charges are contained in a notice that has to be signed by at least one-quarter of the total members of that house. The notice is sent up to the president and 14 days later, it is taken up for consideration.
A resolution to impeach the president has to be passed by a two-thirds majority of the total number of members of the originating house. It is then sent to the other house. The other house investigates the charges that have been made. During this process, the president has the right to defend oneself through an authorised counsel. If the second house also approves the charges made by special majority again, the president stands impeached and is deemed to have vacated their office from the date when such a resolution stands passed. No president has faced impeachment proceedings so the above provisions have never been used.
Under Article 361 of the constitution, though the president cannot be summoned for questioning except on his voluntary willingness to testify in the court in support of his controversial deeds, the unconstitutional decisions taken by the president would be declared invalid by the courts. The case would be decided by the courts based on the facts furnished by the Union government for the president’s role. As clarified by the supreme court in the case Rameshwar Prasad & Ors vs Union of India & Anr on 24 January 2006; though the president cannot be prosecuted and imprisoned during his term of office, he can be prosecuted after he/she steps down from the post for any guilt committed during the term of the presidency as declared earlier by the courts. No president has resigned on impropriety to continue in office for declaring and nullifying his unconstitutional decisions by the courts till now. No criminal case at least on the grounds of disrespecting constitution is lodged till now against former presidents to punish them for their unconstitutional acts; though many decisions taken during the term of a president have been declared by the supreme court as unconstitutional, mala fides, void, ultra vires, etc.
The Office of the president falls vacant in the following scenarios:
- On the expiry of their term.
- By reason of death.
- By reason of resignation.
- Removal by the supreme court.
- Removal by impeachment.
Article 65 of the Indian constitution says that the Vice-President of India will have to discharge the duties if the office falls vacant due to any reason other than the expiry of the term. The vice-president reverts to their office when a new president is elected and enters the office. When the president is unable to act because of absence, illness or any other cause, the vice-president discharges the president’s functions until the president resumes the duties. A vice-president who acts as or discharges the functions of the president has all the powers and immunities of the president and is entitled to the same emoluments as the president. When a vice-president discharges the duties of the president, he/she does not function as the Chairperson of the Rajya Sabha.
The Indian parliament has enacted the law—The President (Discharge of Functions) Act, 1969 — for the discharge of the functions of the president when vacancies occur in the offices of the president and of the vice-president simultaneously, owing to removal, death, resignation of the incumbent or otherwise. In such an eventuality, the chief justice—or in his absence, the senior most judge of the Supreme Court of India available—discharges the functions of the president until a newly elected president enters upon his office or a newly elected vice-president begins to act as president under Article 65 of the constitution, whichever is the earlier. For example, in 1969, when President Zakir Husain died in Office, Vice-President V. V. Giri served as the acting president of India. However, later, V.V Giri resigned from both posts (Acting President of India and Vice-President of India) as he became a candidate in the 1969 presidential election in India. In this event, the then Chief Justice of India, Justice Mohammad Hidayatullah served as the acting president of India until the next president was elected.