Removal of Judges in India

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Context (IE | TH | TH): Opposition parties in Rajya Sabha (RS) are preparing a motion to remove Allahabad HC judge Justice Shekhar Kumar Yadav for controversial remarks.

About Impeachment

The term ‘impeachment’ means the process followed in deciding the removal of a person in a position from exercising all the powers and responsibilities that the position demands. The entire process of removal is impeachment.
In India, the impeachment is used in two contexts:
- Impeachment of President
- Impeachment of Judges (However, the Constitution does not use the word ‘impeachment‘ for removal of Judges).

Constitutional Provisions: Article 124(4) and Article 218 provide the legal basis for the removal of Judges of the Supreme Court and High Court, respectively.
Criteria: Removal is permitted only on grounds of proven misbehaviour or incapacity.
- The Constitution does not define the terms ‘proved misbehaviour’ or ‘incapacity.’
- The Supreme Court has opined in various cases that wilful misconduct in office, corruption, lack of integrity or any other offence involving moral turpitude would constitute misbehaviour. Incapacity here means a medical condition that may include physical or mental incapacity.

The Judges Enquiry Act (1968) regulates the procedure for removing an SC judge and an HC judge.
Initiation: Requires a motion signed by at least 100 MPs in Lok Sabha (LS) or 50 MPs in RS. The Chairman/Speaker may, after due consideration and consultation, admit or refuse to admit the motion. If admitted, a three-member committee (Committee of Inquiry) would be constituted.
Committee of Inquiry:
- Comprises the CJI or SC judge, a High Court CJ, and a distinguished jurist.
- Investigates charges, frames allegations, examines evidence and cross-examines witnesses.
- Report findings to the Speaker/Chairperson.
Parliamentary Vote:
- Each House must pass the motion with at least two-thirds of the members present and voting and more than 50% of the total membership in favour.
- If both Houses agree, the President issues the removal order.

Termination of Proceedings: If the committee finds the judge not guilty, the matter is dropped.
From the above, it is clear that the procedure for the impeachment of a high court judge is the same as that for a judge of the Supreme Court.

Also, refer to Impeachment Process in USA vs. India

Justice Ramaswami (1993): Accused of financial impropriety. Motion failed as LS abstained from voting.
Justice Soumitra Sen (2011): Guilty of corruption, impeached in RS but resigned before LS discussion.
Justice S. K. Gangele (2015): Cleared by a committee on sexual harassment charges.
Justice Pardiwala (2015): Motion dropped after controversial remarks on reservations were expunged.
Justice C. V. Nagarjuna (2017): Accused of victimising a Dalit judge and financial misconduct. The motion failed due to insufficient signatures.
Justice Dipak Misra (2018): The RS chairman rejected the motion at the preliminary stage.

No Success: Despite six impeachment attempts, no judge has been impeached since independence.
High Bar for Removal: The stringent voting requirement makes impeachment rare.
Political Nature: The process often involves political negotiations and alliances.

Judicial Training: Initiatives to ensure sensitivity and ethical conduct among judges.
Depoliticization of Process: Measures to reduce political influence in judicial impeachment proceedings.
Strengthening Accountability: Regular performance reviews and clearer guidelines for judicial conduct.