Impeachment of Judges

In the wake of Opposition parties preparing to give notice to move a motion to impeach Justice Shekhar Kumar Yadav of Allahabad HC, for his remarks against minorities. 
Let’s understand the process of impeachment of judges.
The process of impeachment of a judge of the Supreme Court is laid down in Article 124(4) of the Constitution of India. Article 218 says the same provisions shall apply in relation to a judge of the High Court as well.

Under Article 124(4), a judge can be removed by Parliament through a laid-down procedure on only two grounds: “proved misbehaviour” and “incapacity”.

The provision states: “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”

In other words, for an impeachment motion against an SC or HC judge to go through, at least two-thirds of those “present and voting” in both Lok Sabha and Rajya Sabha must vote in favour of removing the judge — and the number of votes in favour must be more than 50% of the “total membership” of each House.

If Parliament passes such a vote, the President will pass an order for the removal of the judge.

The grounds and the process for impeachment have a high bar in order to ensure the independence of the judiciary is protected. Impeachment is also a political process — which needs the support of the broad spectrum of MPs and that of the Speaker of Lok Sabha or Chairperson of Rajya Sabha, depending on which House the motion is admitted.

The procedure to be followed for impeachment of a judge is laid down in the Judges Inquiry Act, 1968.

Under Section 3 of the Act, for a motion of impeachment to be taken up, it has to be moved by not less than 100 members in the Lower House, and at least 50 members in the Upper House.

This collection of signatures is the first step. In Justice Yadav’s case, in Lok Sabha, NCP MP Aga Syed Ruhullah Mehdi has initiated the process; in Rajya Sabha, Independent member Kapil Sibal, who is also president of the Supreme Court Bar Association, has taken the initiative.

Once the motion is brought in, the Speaker/ Chairman has to constitute a three-member committee of inquiry. The committee is headed by the Chief Justice of India or a judge of the Supreme Court, and has a Chief Justice of any High Court, and a person who is in the opinion of the Speaker/ Chairman, a “distinguished jurist”. When the motion of impeachment against Justice Soumitra Sen was moved in 2011, the distinguished jurist was Fali Nariman.

The committee frames the charges, and can seek a medical test for the judge if the impeachment charge is on the grounds of mental incapacity. The committee has the power to regulate its procedure, call for evidence, and cross-examine witnesses.

In previous instances, this committee has appointed a lawyer to conduct the proceedings against the judge in question. In Justice V Ramaswami’s case (1993), senior advocate Indira Jaising was the committee’s lawyer.

Once the investigation concludes, the committee will submit a report to the Speaker/ Chairman with its findings and observations. The Speaker/ Chairman will then place the report before Lok Sabha/ Rajya Sabha “as soon as may be”.

If the report finds that the judge is not guilty of misbehaviour or incapacity, the matter will end there.

In case of a guilty finding, the report of the committee is adopted by the House in which it was introduced, and then an address is made to the President by each House of Parliament in the same session seeking the judge’s removal.

None of the six attempts at impeaching a judge since Independence have been successful. Only in two instances — involving Justices Ramaswami and Sen — have the committees of inquiry returned a guilty finding. In five of the six instances, the charge was of financial impropriety; it was sexual misconduct in the remaining instance.

The first impeachment proceedings were initiated against former Supreme Court judge Justice V Ramaswami in 1993 on grounds of financial impropriety. The judge was defended by senior advocate Kapil Sibal before a joint sitting of Parliament. The motion failed, and Justice Ramaswami retired a year later.

Justice Soumitra Sen of Calcutta High Court was sought to be impeached in 2011, also on grounds of corruption. Justice Sen was impeached by Rajya Sabha but he resigned days before Lok Sabha was scheduled to discuss the motion. The proceedings lapsed with Justice Sen’s resignation.

Justice S K Ganguly of Madhya Pradesh High Court faced impeachment proceedings in 2015 on charges of sexual harassment. A committee set up to investigate the charges cleared him in 2017.

Justice J B Pardiwala, who is a sitting judge of the Supreme Court, was sought to be impeached in 2015 when he was a judge of the Gujarat High Court. The removal process was triggered against remarks the judge had made in a judgment — that reservation was one of the reasons that “has not allowed the country to progress in the right direction”.

The judge expunged the remarks from his judgment, and the impeachment motion was subsequently dropped by then Rajya Sabha Chairman Hamid Ansari.

Justice C V Nagarjuna of the High Court of Andhra Pradesh and Telangana was sought to be impeached in 2017. He was accused of victimising a Dalit judge and of financial misconduct. Both motions failed after Rajya Sabha MPs who had signed on withdrew their names — as a result of which the motion fell short of the required number.

The most recent impeachment attempt was the politically fraught case of former Chief Justice of India Dipak Misra in 2018. The motion was rejected by then Rajya Sabha Chairman M Venkaiah Naidu at the preliminary stage.