Constitutional Posts: Oath, Resignation and Removal

Every constitutional post in India carries three questions an examiner can ask about it: who administers the oath of office, to whom the holder addresses a resignation, and how the holder can be removed. News that the President has accepted a Union Minister's resignation from the Council of Ministers puts exactly these rules in the paper. The Constitution answers all three questions post by post, and the forms of the oaths are printed in the Third Schedule, so the answers are fixed text rather than opinion. That is why SSC, Railway, Banking, Defence and State examinations return to this chapter every year, usually as a one-line matching question.

Oath of office: who administers it to whom

An oath or affirmation is the condition on which a constitutional office is entered. The holder cannot act before making it, and the Constitution names the authority before whom it is made.

• The forms of the oaths are set out in the Third Schedule, except the forms for the President and the Governor, which are written into Articles 60 and 159 themselves.
• Ministers of the Union and of a State make two oaths, of office and of secrecy. The President's oath has no secrecy clause; he alone swears to preserve, protect and defend the Constitution and the law.
• The Speaker and the Deputy Speaker take no separate oath. They have already taken the oath as members of the House, and that is enough. The same is true of the Chairman and the Deputy Chairman of a State Legislative Council.
• The Attorney General of India makes no oath, because he is not a member of the executive in the constitutional sense.
• A person may be made a Minister without being a member of either House, but under Article 75(5) he must become a member within six months or cease to be a Minister.

Resignation: the right address

A resignation is effective only when it is addressed to the authority the Constitution names. Examiners test the pairs below far more often than the reasons for resigning.

Removal: impeachment and the other routes

The Constitution uses the word impeachment for the President alone. Every other high office has its own route, and the majorities differ.

• President (Article 61): removed for violation of the Constitution. The charge may be preferred by either House after a 14-day notice signed by not less than one-fourth of the members of that House, and must be passed by a majority of not less than two-thirds of the total membership of that House. The other House then investigates the charge, and must also pass it by two-thirds of its total membership. Nominated members may take part, although they have no vote in his election; members of State legislatures have no role at all.
• Vice-President (Article 67(b)): removed by a resolution of the Rajya Sabha passed by a majority of all the then members and agreed to by the Lok Sabha, after 14 days' notice. The Constitution lays down no ground for his removal.
• Judges of the Supreme Court and the High Courts (Articles 124(4), 217(1)(b), 218): removed by an order of the President after an address by each House in the same session, supported by a majority of the total membership of that House and by not less than two-thirds of the members present and voting, on the ground of proved misbehaviour or incapacity. The inquiry follows the Judges (Inquiry) Act, 1968.
• CAG and the Chief Election Commissioner: removed in the same manner and on the same grounds as a judge of the Supreme Court (Articles 148(1) and 324(5)). Other Election Commissioners and Regional Commissioners may be removed only on the recommendation of the Chief Election Commissioner.
• Chairman or a member of the UPSC (Article 317): removed by order of the President for misbehaviour, but only after the Supreme Court, on a reference by the President, has held an inquiry and advised removal.
• Governor (Article 156(1)): holds office during the pleasure of the President, so no ground and no procedure are laid down. His normal term is five years, he may be transferred to another State or reappointed, and he continues until his successor enters office.
• Ministers: hold office during the pleasure of the President or the Governor and are dismissed on the advice of the Prime Minister or Chief Minister. The Council of Ministers is collectively responsible to the popular House, so a no-confidence motion carried against it brings the whole ministry down.
• Speaker and Deputy Speaker (Articles 94(c) and 96): removed by a resolution of the House passed by a majority of all the then members after 14 days' notice. While such a resolution is under consideration, the Speaker may sit in the House but may not preside.

Majorities and notices worth memorising

• Special majority of two-thirds of the total membership: each stage of the President's impeachment.
• Majority of the total membership plus two-thirds of those present and voting: the address for removing a judge.
• Majority of all the then members: removal of the Vice-President, the Speaker, the Deputy Speaker and the Chairman of a Council.
• Fourteen days' notice: the President's impeachment, the Vice-President's removal and the removal of a Speaker or Deputy Speaker.
• No fixed procedure at all: the Governor, who serves during the pleasure of the President.