HOW ARE JUDGES REMOVED IN INDIA?

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Picture Courtesy:  TIMESOFINDIA

Context

Over 100 opposition Lok Sabha MPs submitted a removal motion against Madras high court Justice GR Swaminathan to Lok Sabha Speaker Om Birla. 

How Judges are removed in India? 

The process for removing Supreme Court and High Court judges balances judicial independence with public accountability.

The Constitution does not use the word ‘impeachment,’ but the term refers to the removal proceedings for Supreme Court (Article 124) and High Court (Article 218) judges.

Constitutional and Legal Framework

• Constitutional Basis:
• Article 124(4): Outlines the procedure for the removal of a Supreme Court judge.
• Article 218: Extends the provisions of Article 124(4) to the judges of High Courts, ensuring a uniform process.
• Statutory Framework: The Judges (Inquiry) Act, 1968, regulates the detailed procedure for the investigation and proof of the charges against a judge.
• Grounds for Removal: A judge can be removed only on grounds of "proved misbehaviour" or "incapacity".
• These terms are not defined in the Constitution, but "misbehaviour" include corruption, wilful misconduct, or actions that bring disrepute to the judiciary.

Removal Process of Judge

Step 1: Initiation of the Motion

• A removal motion can be introduced in either House of Parliament.
• It must be signed by at least 100 MPs in the Lok Sabha or 50 MPs in the Rajya Sabha.
• The Speaker (of Lok Sabha) or the Chairman (of Rajya Sabha) has the discretion to admit or reject the motion.

Step 2: Constitution of an Inquiry Committee

• If the motion is admitted, the presiding officer constitutes a three-member committee under the Judges (Inquiry) Act, 1968.
• The committee consists of:
• A sitting Supreme Court judge.
• A Chief Justice of a High Court.
• A distinguished jurist.
• This committee investigates the charges, functioning like a court to assess evidence and hear the judge's defence.

Parliamentary Vote and Removal

• If the committee finds the judge not guilty, the process ends immediately.
• If the judge is found guilty, the report is tabled in Parliament for consideration.
• The motion to remove the judge must be passed in both Houses in the same session by a special majority. This is defined as:
  • A majority of the total membership of the House, AND
  • A majority of not less than two-thirds of the members present and voting.
• After being passed by both Houses, an address is presented to the President, who then issues the final order for the judge's removal.

What is 'In-House' Disciplinary Mechanism?

• Origin: The Supreme Court formally adopted the "in-house procedure" in 1999, driven by the need for a non-impeachment mechanism highlighted in the C. Ravichandran Iyer vs Justice A.M. Bhattacharjee (1995) case.
• How it Works:
• Complaints against judges are screened by the Chief Justice of the concerned High Court or the Chief Justice of India (CJI).
• If a complaint is found to be serious, the CJI forms a three-member committee of judges to investigate it.
• Possible Outcomes:
• If misconduct is minor, the judge may be privately advised or cautioned.
• If serious misconduct is proven, the committee can recommend that the judge resign or take voluntary retirement.
• If the judge refuses, the CJI may withdraw judicial work from them and recommend to the President and Prime Minister that formal removal proceedings be initiated.

Has a Judge Ever Been Removed?

Six impeachment attempts have been made against judges since Independence, but none have succeeded yet.

• Justice V Ramaswami (1993): An impeachment motion for financial fraud failed to pass, and he subsequently retired.
• Justice Soumitra Sen (2011): Charged with corruption, he resigned before the impeachment motion could be debated in the Lok Sabha.
• Justice S K Gangele (2015): Accused of sexual harassment, he was ultimately cleared by the investigating committee.
• Justice J B Pardiwala (2015): An impeachment proposal was initiated over controversial remarks regarding reservations but was dropped after he retracted the statements.
• Justice C V Nagarjuna (2017): An impeachment motion for victimizing a Dalit judge failed as the supporting Members of Parliament withdrew their backing.
• Former Chief Justice of India Dipak Misra (2018): A motion for his impeachment was rejected by the Rajya Sabha Chairman at the preliminary stage.

Key Challenges in Ensuring Judicial Accountability

High Bar for Removal: The special majority required in Parliament makes the process extremely difficult, reserving it only for the most severe cases of misconduct.

Procedural Gaps: A judge can halt the entire process by resigning, thereby avoiding a formal finding of guilt and retaining post-retirement benefits.

Lack of Transparency: The in-house inquiry is conducted confidentially, which leads to public criticism and calls for greater transparency to maintain trust in the judiciary.

Potential for Political Misuse: There are concerns that the threat of impeachment can be used as a political tool to pressure the judiciary, undermining independence.

Way Forward 

Strengthening the accountability framework requires careful reforms that do not compromise judicial independence, which is a part of the 'basic structure' of the Constitution.

Reforming Judicial Appointments: A transparent, objective system is essential for judicial appointments. The 2015 Supreme Court ruling striking down the National Judicial Appointments Commission (NJAC) highlights the need for a balanced appointment mechanism.

Increasing Transparency: Publishing in-house inquiry findings, particularly in proven serious misconduct cases, could boost public trust and accountability.

Codifying Judicial Standards: Strengthening compliance to ethical codes like the 'Restatement of Values of Judicial Life' is essential to prevent misconduct at its root.

Constructive Dialogue: A balanced legislature-judiciary discourse is vital. Parliament's constitutional check on the judiciary requires restraint to maintain the separation of powers.

Conclusion

To balance judicial independence and accountability effectively, India's rigorous judicial removal process necessitates continuous, transparent reforms to address procedural gaps and strengthen public trust.

Source: TIMESOFINDIA