Impeachment of Judges: A rigorous process and a history of fruitless attemptsMarch 29 2018
In what could turn out to be more smoke than fire, reports surfaced on Tuesday that the Congress party will be moving a motion in the Rajya Sabha for the impeachment of Chief Justice of India Dipak Misra, on grounds of judicial misconduct.
However, the question remains whether the motion will find success, particularly given the rigorous procedure laid down in Indian law for the removal of a judge.
The law on this aspect can be found in Articles 124 (4), (5), 217, and 218 of the Constitution of India, and the provisions of the Judges (Inquiry) Act, 1968 and corresponding rules.
These provisions allow for removal of a Supreme Court or High Court judge on grounds of proved misbehaviour or incapacity.
However, as it can be gauged from the following outline of the elaborate procedure laid down for the same, it can be near impossible to prove the alleged misbehaviour or incapacity of a judge for removal.
Notice of motion for removal of judge
Removal proceedings against a judge of the Supreme Court or the High Court can be initiated in either House of Parliament. For this, a notice of a motion to remove the judge has to be signed,
- If emanating from the Lok Sabha, by not less than one hundred members,
- If emanating from the Rajya Sabha, by not less than fifty members.
Constitution of an Inquiry Committee
The motion has to then be admitted by the Speaker or Chairman, depending on the House in which the motion is initiated.
Once admitted, the Speaker/Chairman has to constitute a three-member Inquiry Committee to investigate the grounds of judge removal.
This Committee comprises the following members:
- a Supreme Court judge
- a High Court Chief Justice
- an eminent jurist, as per the opinion of the Speaker/Chairman (as the case may be)
If such notices have been admitted in both Houses, the Inquiry Committee will be formed jointly by the Speaker and the Chairman of the respective Houses. In this scenario of dual notices, the notice given on a later date “shall stand rejected.”
However, this committee will not be formed if notices of motion to remove the judge is admitted in both Houses of Parliament on the same day.
Submission of the Inquiry Report
Following its investigation, the Inquiry Committee will record its findings in a formal report. This has to be laid down by the Speaker/Chairman before the concerned House of Parliament.
If the Inquiry Report finds the judge guilty, the motion for removal has to be put to vote in both Houses of Parliament.
As per Article 124 (4) of the Constitution, in order to proceed further with the removal of the judge, the motion has to be supported by
- a majority of the total membership of the House AND
- a majority of not less than two thirds of members present and voting.
Order by President
If the motion finds success in terms of Article 124(4), the motion is placed before the President of India.
The removal of a judge can only be effected by an order passed by the President after the presentation of this address.
Past instances of attempted removal
Given the procedure involved, it is not surprising that no judge has been removed till date in independent India. So far, six judges (excluding Justice Misra) have faced attempts to have them removed from office.
Justice V Ramaswami, then Chief Justice of the Punjab and Haryana High Court, has the dubious honour of being the first judge to have impeachment proceedings initiated against him in 1991. Although the Inquiry Committee had found Justice Ramaswami guilty on 11 out of 14 charges, the impeachment motion failed on account of insufficient votes at the penultimate stage.
Proceedings initiated against Sikkim High Court Judge, PD Dinakaran in 2011, for alleged judicial misconduct met with success up to the point of the constitution of an Inquiry Committee. However, the removal was halted following Justice Dinakaran’s resignation, on grounds of lack of faith and confidence in the impartiality of the Inquiry Committee.
The furthest impeachment proceedings have been taken forward was against Justice Soumitra Sen of the Calcutta High Court, for cited misappropriation of public funds. Following the Inquiry Committee’s finding that Justice Sen was guilty, the impeachment motion found overwhelming support in the Rajya Sabha. However, in September 2011, Justice Sen resigned before the motion could be voted on in the Lok Sabha.
In 2015, Justice JB Pardiwala of the Gujarat High Court ran into trouble after he made certain ‘casteist’ remarks against reservation in a judgment. However, the motion for impeachment lost steam after the judge removed the controversial remarks from the judgment.
The same year, impeachment proceedings were initiated against Justice SK Gangele of the Madhya Pradesh High Court on allegations of sexual misconduct. However, the Inquiry Committee set up by the Rajya Sabha ended up giving a clean chit to the judge, after finding that the allegations were unfounded.
Two attempts to remove Justice CV Nagarjuna Reddy as a judge of the Andhra Pradesh and Telangana High Court in 2016 and 2017 also failed to materialise. The impeachment motion initiated on alleged grounds of casteist acts, saw loss of support before an Inquiry Committee could be constituted.
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