This article is written by Sushmita Choudhary, from New Law College, Bharati Vidyapeeth Deemed University. This article intends to talk about the process of removal of judges and the challenges faced in that process.
Having completed 70 years of our Constitution being in effect, India’s literati have been prone to introspection on the seeds sown by the framers of our constitution on the day of January 26th, 1950 and the journey we have made since then. Impeachment is a term used colloquially for removal of judges. So far, no Supreme Court judge has ever been impeached in India. Justice V Ramaswami was the first Supreme Court judge against whom an impeachment was initiated and the Inquiry committee found the judge guilty but the motion was defeated in the Lok Sabha.
Article 124 of the Constitution of India throws light upon the establishment of the Supreme Court of India. Further, Article 124(4) enshrines the guidelines for the removal of a sitting Supreme Court judge. The procedure for removal of the Supreme Court judge is guided by Article 124(4) of the Constitution of India and the Judges (Inquiry) Act, 1968. Article 218 of the Constitution of India provides for the impeachment of High Court judges.
Notice of motion for removal of a judge
Removal proceedings against a Supreme Court or a High Court judge can be initiated in any of the houses of Parliament. For this:
- A minimum of 100 members of Lok Sabha may give a signed notice to the speaker, or
- A minimum of 50 members of Rajya Sabha may give a signed notice to the Chairman.
The speaker or chairman may consult individuals and examine relevant content related to notice and according to that, he or she may decide to either admit or refuse to admit it.
Constitution of an Inquiry Committee
After the motion is admitted, the Speaker of the Lok Sabha or Chairman of the Rajya Sabha will form an Inquiry Committee as per Article 3(2) of the Judges (Inquiry) Act, 1968 to start investigating the complaint. It will consist of the following members:
- A Supreme Court judge,
- A High Court Chief Justice, and
- A distinguished jurist, as per the opinion of the Speaker/Chairman.
If such notices have been admitted in both the Houses of Parliament, the Inquiry Committee will be formed together by the Speaker and the Chairman of the respective houses. In this scenario, the notice that has been on a later date will stand rejected. If such notices have been passed by both the Houses of Parliament on the same day, the Inquiry Committee will not be formed.
Submission of the inquiry report
After concluding its investigation, the Inquiry Committee will put down its findings in a formal report and submit it to the Speaker or Chairman. If the report finds misbehaviour or incapacity which makes the judge guilty, the motion for removal has to be put to vote in both The Lok Sabha and Rajya Sabha. As per Article 124(4) of the Constitution, the motion is required to be adopted in each house by:
- A majority of the total membership of the House, and
- A majority of not less than two-thirds of members present and voting.
If the motion is adopted by this majority in one house, the motion will be sent to the other house.
Order by the President
As per Article 124(4), after the motion is adopted in both the houses by the required majority, it is placed before the President of India, who will issue an order for the removal of the judge.
K.G. Balakrishnan, the 37th Chief Justice of India, has admitted in the past that the agreements for impeachment were formed in such a manner that it would be difficult and onerous in order to keep the judges independent of any external pressure. Nowadays, there have been murmurs getting louder that voice for rising judicial impropriety. Notable cases regarding the impeachment of Justice Dipak Misra and Justice Ranjan Gogoi had been in the news for some time earlier.
Misbehaviour and the burden of proving it
The Constitution under Article 124(4) has provided for the impeachment of judges on the grounds of proved misbehaviour or incapacity but the Constitution has not given any mandate till date as to what constitutes ‘misbehaviour’ or ‘incapacity’. In other words, the framers of the constitution have risked the independence of the judiciary subject to any interpretations of these words by the legislature. Judicial Independence can’t be bolstered by keeping vague grounds. Our MPs may not be the best ambassadors of literacy, so it might be possible that a party can assemble the required numbers for commencing impeachment even on frivolous grounds. It is not unreal to believe that involving a person in litigation is similar to defaming him even though the litigant is falsely seeking remedy for his rights which have not been violated by the defendant. Comparing the position of the judiciary with the latter, it can be considered to be more protected for the reason that the judiciary is the scrutineer of the country. It is an institution whose disrepute we cannot afford, considering the expansive role it plays in the justice system. Therefore, the drawback of vague conditions is an area of concern that must be done away with.
Justice K.Ramaswamy in M Krishna Swami v Union of India reiterated multiple times that even in the absence of a fixed set of principles, there exists an unwritten code of conduct which bears various guidelines for judicial behaviour. Grounds like misbehaviour and incapacity act as preventive measures for arbitrary removal of judges. Adjudicating upon these measures requires a careful examination. Misbehaviour is an expression with a wide connotation and could not be used in a restricted manner. It is a vague term. Every act or conduct or even abstract error of judgement or negligent acts by higher judiciary per se would not amount to misbehaviour. Wilful abuse of judicial office, willful misconduct in the office, corruption, lack of integrity, or any other offence involving moral turpitude would amount to misbehaviour.
A concrete view has been provided by the Supreme Court by taking into account the instruction of Article 317 where the removal of a member of Public Service Commission is given and comparing the grounds of removal with those of the UPSC Chairman. The Supreme Court identified the meaning of the term ‘misbehaviour’ to comprise wrong and improper conduct. The conduct that could involve some degree of mens rea and wilful abuse of constitutional office, misconduct, corruption, lack of integrity or any act of moral turpitude. The persistent failure of performing duties of the office with integrity and commitment was also a ground.
Thus, an adequately strict requirement has been somewhat laid down by the Supreme Court which makes the judiciary a protected entity but not impeccable and hence, leaves room to make it prone to attack.
In the V Ramaswami case of the late 1980s, inconsistencies were found in an audit done regarding purchases made for the High Court. The Inquiry Committee instituted by the Lok Sabha had found him guilty going by the necessary evidence but he escaped any consequences as the motion did not get enough votes. The party in power altogether decided to abstain from voting on the motion. Existence of conflicting interests is evident from the fact that Kapil Sibal had argued his case in front of the Supreme Court.
Judicial accountability problems have increased in India over the decades.
In K Veeraswami v Union of India, the Supreme Court decided that prior written consent of the Chief Justice of India is mandatory for any proceedings regarding the prosecution of a judge of a High Court or the Supreme Court to be initiated in the Parliament. The Veeraswami case holds good on the judicial side as it gave an edge to the judges.
In Justice P.D. Dinakaran vs Hon’ble Judges Inquiry Committee, in 2011, it was alleged that P.D. Dinakaran, former Chief Justice of Sikkim High Court, had accumulated disproportionate assets and was involved in land acquisitions in Arakkonam (his hometown), exceeding the limit that was fixed by the Tamil Nadu Land Reforms. A motion was admitted in the Rajya Sabha by its Chairman in December 2009 and met with success to the extent of the constitution of an Inquiry Committee, seeking his removal on the charges of corruption and abuse of his office. However, before the proceedings could be completed in one House, he tendered his resignation on grounds of lack of confidence and faith in the three-member Inquiry Committee probing the charges against him and thus, the removal was halted. He managed to get post-retirement benefits even before the proceedings could be completed and the allegations against him could be proved.
The furthest impeachment proceedings have been taken forward in the case of Justice Soumitra Sen, a former judge of the Calcutta High Court, for being accused of misappropriating public funds. He was accused of misappropriating rupees thirty-three lakhs in a conflict between Steel Authority of India and Shipping Corporation of India in 1993 over the supply of fire bricks. In 2009, 58 MPs of the Rajya Sabha moved a motion for impeachment against him. The three-member committee formed by the Chairman suggested that Justice Sen was guilty of corruption and hence, that constituted ‘misbehaviour’ under Article 124(4) read with proviso (b) to Article 217(1) of the Constitution of India. Hence, the impeachment found overwhelming support in the Rajya Sabha and was to be taken up in the Lok Sabha. However, on September 1, 2011, Justice Sen decided to resign before the motion could be passed in the Lok Sabha.
In Hardik Bharatbhai Patel v. State of Gujarat And Ors., Justice Pardiwala of the Gujarat High Court ran into trouble after making certain ‘casteist’ remarks against reservation in a judgement. 58 MPs of the Rajya Sabha introduced a petition before the Chairman seeking his impeachment for his alleged ‘unconstitutional’ remarks against reservation. However, the motion lost its momentum after the Judge removed the controversial remarks from the judgement.
In her 2014 resignation letter, a Former Additional District Judge in Madhya Pradesh had accused the Madhya Pradesh High Court judge, Justice SK Gangele, of sexual harassment. She had written to the then Chief Justice of India, RM Lodha and Supreme Court judges regarding the assault. After 58 MPs of the Rajya Sabha initiated impeachment proceedings against Justice SK Gangele, an Inquiry Committee was constituted. The inquiry panel ruled in favour of the High Court judge rejecting the allegations of sexual harassment.
Two attempts to remove Justice CV Nagarjuna Reddy, a former judge of the Andhra Pradesh and Telangana High Court in 2016 and 2017 also failed. The impeachment motion initiated on allegations based on casteist acts saw the loss of support before an inquiry panel could be set up.
In 2018, an impeachment motion signed by 71 MPs of the Rajya Sabha was passed against the then Chief Justice of India, Dipak Misra, accusing him of five charges in the full text of the statement against him and also stated that the CJI acted arbitrarily in allocating cases to brother judges as “master of roster”. However, the Chairman and Vice-President M.Venkaiah Naidu rejected the motion as he did not find any misbehaviour on the judge’s part after consulting with Constitutional experts, legal luminaries and Senior Parliament officials.
These episodes of unsuccessful attempts at removal of judges demonstrate that it is common for judges facing probes to resign pending removal proceedings once they are convinced that the motion has a high probability of being passed by both the Houses. Constitutional Assembly Debates show that a judge should continue his office during good behaviour but is expected to vacate it if he is found guilty of any act that goes against the deemed dignity of the office. Besides this, decisions of the Supreme Court have cleared the air around misbehaviour to some extent but it has repeatedly refrained from delving too much on the issue. Traditionally, it has restricted itself to the instances of amassing or misappropriating wealth, disproportionate to a judge’s income. Lately, it has ventured into other issues like sexual harassment but with little success. Lack of clear regulations as to what constitutes misbehaviour can be blamed for corrupt judges walking away with impunity.
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