Removal of Judges in India: Context, Procedure, and Future Course of Action
Context:
Recently, 55 Rajya Sabha Members submitted a motion to the Chairman of the Rajya Sabha seeking the removal of Allahabad High Court Judge, Justice Shekhar Kumar Yadav.
About the Current Issue:
- Justice Shekhar Kumar Yadav’s remarks at a public event triggered this controversy. Speaking at an event organised by the Vishwa Hindu Parishad, Justice Yadav allegedly stated that “the country would be run according to the wishes of the majority.” This statement raised serious questions about the impartiality and conduct of judges, as it seemingly violates the “Reinstatement of Values of Judicial Life” adopted in 1997.
- These guidelines mandate that judges’ conduct should reaffirm public confidence in judicial impartiality and avoid acts that are unbecoming of their office. While the Supreme Court has sought an explanation from Justice Yadav, the motion for removal reflects the growing concerns over judges’ public conduct.
About the Procedure, Grounds, and Constitutional Articles for Removal of Judges:
The procedure for removing judges of the Supreme Court and High Courts is outlined in Articles 124(4) and 217(1)(b) of the Constitution of India:
- Grounds for Removal: Judges can be removed on the grounds of “proved misbehaviour” or “incapacity.” The Constitution does not explicitly define these terms.
- Procedure for Removal: The process is detailed in the Judges (Inquiry) Act, 1968. The steps are as follows:
- A notice of motion for removal must be signed by at least 100 Members of the Lok Sabha or 50 Members of the Rajya Sabha and submitted to the Speaker/Chairman.
- The Speaker/Chairman may either admit or refuse to admit the motion.
- If admitted, a three-member committee is constituted to investigate the charges. The committee comprises:
- The Chief Justice or a Judge of the Supreme Court,
- The Chief Justice of a High Court, and
- A distinguished jurist.
- If the committee finds the judge guilty of misbehaviour or incapacity, the motion is considered by both Houses of Parliament.
- The motion must be passed by a special majority in both Houses:
- A majority of the total membership of the House, and
- A majority of not less than two-thirds of the members present and voting.
- Once passed, an address is presented to the President, who then issues an order for removal.
The process is deliberately stringent to ensure judicial independence and prevent arbitrary removal.
Future Course of Action:
The current issue requires a measured response that preserves judicial independence while ensuring accountability. Some key steps that could be considered include:
- Strengthening the Code of Conduct: A binding Code of Conduct for judges, similar to the 2006 Judges Inquiry Bill’s proposal, could address minor instances of misconduct.
- Collegium Oversight: The Supreme Court Collegium must ensure a thorough evaluation of judges’ conduct and performance.
- Transparency in Proceedings: The inquiry process under the Judges Inquiry Act should be transparent and impartial to build public trust.
- Balancing Accountability with Independence: While stringent procedures safeguard judges from arbitrary removal, mechanisms for addressing misconduct must be efficient and effective.
Past Cases of Removal of Judges:
No judge of the Supreme Court or High Court has been successfully impeached in India so far. The most notable case is:
- Justice V. Ramaswami (1991–1993):
- Justice Ramaswami was found guilty of misbehaviour by the inquiry committee.
- However, the impeachment motion was defeated in the Lok Sabha as the Congress Party abstained from voting.
- This case highlighted the challenges in removing judges despite evidence of misconduct.
Powers of the Collegium System in Removal of Judges:
The Collegium system, which oversees judicial appointments and transfers, does not have direct powers to remove judges. However:
- The Collegium can recommend action in cases of serious misconduct, including transfer of judges.
- In exceptional cases, the Collegium may advise judges to step down to avoid further controversy.
- While the formal process of removal lies with Parliament and the President, the Collegium’s oversight and recommendations are significant in upholding judicial standards.
