The judiciary is the cornerstone of a democracy, entrusted with safeguarding constitutional values, ensuring justice, and upholding the rule of law. However, when a judge’s conduct or capacity to function in their esteemed position comes into question, the Constitution of India provides a detailed and rigorous process for their removal through impeachment.
Recently, this issue gained prominence as Opposition INDIA bloc parties in the Rajya Sabha initiated a motion to impeach Justice Shekhar Kumar Yadav of the Allahabad High Court for alleged controversial statements against minorities. This article delves into the constitutional provisions, process, limitations, and recommendations for addressing the challenges associated with the impeachment of judges in India.
What are the constitutional provisions for the impeachment of judges in India?
| Article 124 (4), (5) | Applicable for the removal of a Supreme Court judge |
| Article 217 (1) (b) and Article 218 | Applicable for the removal of a High court judge |
Although the Constitution does not explicitly mention the term ‘impeachment,’ it is commonly used to describe the process outlined in Article 124 (4) , Article 217 (1) (b) and Article 218. The term impeachment, as officially used under Article 61 of the Indian Constitution, applies exclusively to the removal of the President of India.
Grounds for Removal of Judges
1. The provisions under article 124 (4) (5), 217 (1) (b) and 218 allow for the removal of a Supreme Court or High Court judge on the grounds of “proved misbehaviour” or “incapacity“.
2. The provisions mandated that a judge of the Supreme Court or High Court shall not be removed from office unless an address is presented to the President in the same session in which it is passed by each House of Parliament. This requires:
a. A majority of the total membership of each House.
b. A majority of not less than two-thirds of the members of each House present and voting.
Once Parliament passes the motion, the President is required to issue an order for the judge’s removal.
What is the Procedure for the removal of Judges in India?
The procedure for removal of judges is codified in the Judges Inquiry Act, 1968 and Judges Inquiry rules 1969. The process involves several critical steps:
1. Initiation of Motion: The removal process begins with a notice of motion signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha. This motion is then submitted to the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha, depending on the House where it originates.
2. Admittance of Motion: The Speaker or Chairman examines the motion and decides whether to admit it. Upon admission, a three-member inquiry committee is constituted.
3. Inquiry Committee: The committee comprises the Chief Justice of India (or a Supreme Court judge), the Chief Justice of a High Court, and a distinguished jurist ,as per the opinion of the Speaker/Chairman. The committee investigates the charges, frames them formally, and has the authority to call for evidence and cross examine witnesses.
4. Committee Findings: The committee submits its report to the Speaker/Chairman. If the charges of misbehaviour or incapacity are not proven, the process terminates. If proven, the motion is taken up in the originating House of Parliament.
5. Parliamentary Voting: The motion must be passed by both Houses with a majority of the total membership and a two-thirds majority of those present and voting.
6. Presidential Order: Once both Houses approve the motion, an address is sent to the President, who issues the order for the judge’s removal.
What are the Instances of Impeachment in India?
India has witnessed six impeachment attempts since independence, none of which resulted in a judge’s removal. Some notable cases include:
| Justice V. Ramaswami (1993) | Accused of financial impropriety, Justice Ramaswami faced impeachment. Despite the inquiry committee’s finding of guilt, the motion failed due to political considerations and Congress’s decision to abstain from voting. |
| Justice Soumitra Sen (2011) | Accused of misappropriation of funds, Justice Sen was impeached by the Rajya Sabha. However, he resigned before the Lok Sabha could discuss the motion, leading to the termination of the proceedings. |
| Justice S. K. Gangele (2015) | Allegations of sexual harassment were levied against him, but the inquiry committee cleared him of wrongdoing. |
| Justice C.V. Nagarjuna (2017) | Accused of victimising a Dalit judge and financial misconduct, the motion failed as MPs withdrew their signatures. |
| Justice Dipak Misra (2018) | The politically charged impeachment motion against the former Chief Justice of India was rejected at the preliminary stage by the Rajya Sabha Chairman. |
How are Judges impeached in other countries?
1. United Kingdom– Judges hold office during “good behaviour” and can be removed by the Crown following an address by both Houses of Parliament. Allegations of misconduct are investigated by a tribunal or the Office for Judicial Complaints, which advises the Lord Chancellor before a motion is presented in Parliament.
2. United States– Federal judges serve during “good behavior,” as per Article III. Only Congress has the authority to remove an Article III judge. This is done through a vote of impeachment by the House and a trial and conviction by the Senate.
3. Canada– Judges hold office during “good behaviour” and can be removed by the Governor General following an address by the Senate and House of Commons. Grounds for removal include age, infirmity, misconduct, failure in duty, or incompatibility with judicial office.
What are the limitations of the impeachment Process in India?
Despite its robust design, the impeachment process has several limitations:
1. Ambiguity in Grounds: Terms like “proved misbehaviour” and “incapacity” are not clearly defined, leading to subjective interpretations and potential misuse.
2. Political Interference: The process relies heavily on parliamentary approval, making it susceptible to political considerations, as seen in the case of Justice Ramaswami.
3. Partisan Whip: The anti-defection law under the 10th Schedule mandates party members to follow the party’s stance, stifling independent judgment.
4. Resignation Loophole: Judges can evade accountability by resigning before the impeachment process concludes, as demonstrated in Justice Sen’s case.
5. Transfer as a Solution: Allegations against judges often result in their transfer instead of proper inquiry, undermining the accountability mechanism.
Solutions and Way Forward
To address these challenges and enhance the effectiveness of the impeachment process, the following measures can be considered:
1. Clarify Grounds for Removal: The terms “proved misbehaviour” and “incapacity” must be clearly defined in the Constitution or through legislative amendments to prevent subjective interpretations.
2. Establish an Independent Body: An independent commission, akin to the Lokpal, could be constituted specifically to handle impeachment cases, ensuring impartiality and reducing political influence.
3. Restrict Whip Usage: Amend the anti-defection law to allow MPs to vote according to their conscience on impeachment motions, ensuring decisions are based on merit rather than party directives.
4. Address Resignation Loophole: Laws should mandate that allegations against a judge be investigated even if they resign, ensuring accountability and deterring misuse of resignation as an escape route.
5. Strengthen Inquiry Mechanisms: The inquiry process should include stringent timelines and safeguards to ensure timely and impartial investigations.
6. Promote Judicial Accountability: A culture of transparency and accountability within the judiciary, coupled with regular performance reviews, can prevent instances requiring impeachment.
| Read more- The Indian Express UPSC Syllabus-GS 2- Indian Judiciary |
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