Tribune Explainer: Why removing a judge is not easy

The government is reportedly considering moving a motion in the ensuing session of Parliament for removing Justice Yashwant Varma of the Allahabad High Court, who has been indicted for recovery of unaccounted cash during a fire incident at his residence here on March 14.But it’s not an easy task as no judge of the Supreme Court or any high court has been removed since January 26, 1950, when the Constitution came into force.Constitutional provisionsArticle 124(4) read with Articles 217(1)(b) and 218 provide for the removal of a Supreme Court judge and a high court judge, respectively, for “proved misbehaviour or incapacity”.A judge can be removed from office by an order of the President after both Houses of Parliament separately pass a motion for his removal by a majority of not less than two-thirds of the members present and voting.Article 124(5) authorises Parliament to enact a law to regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge as mentioned under Article 124(4). Accordingly, Parliament has enacted the Judges Inquiry Act, 1968, which provides for the procedure for the removal of judges.Case against Justice VarmaA fire broke out on March 14 at 11.35 pm at the residence of Justice Yashwant Varma, who was then a Delhi High Court judge, in a storeroom stocked with stationery and domestic articles. Two fire tenders reached the spot at 11.43 pm and doused the fire in 15 minutes. It was alleged that unaccounted burnt cash was recovered from the site.An initial probe report submitted by Delhi High Court Chief Justice DK Upadhyaya found substance in the allegations. The top court had made the report public and also uploaded on its website the documents, including photos and video taken by the Delhi Police substantiating the allegations of the discovery of unaccounted currency at Justice Varma’s residence. On March 22, the CJI constituted a three-judge in-house inquiry committee to probe the allegations of the recovery of unaccounted cash.On March 24, the Supreme Court Collegium recommended Justice Varma’s transfer to the Allahabad High Court. The government notified his transfer on March 28, but he has not been assigned any judicial work.In its May 4 report, the three-member committee comprising Punjab and Haryana High Court Chief Justice Sheel Nagu, Himachal Pradesh High Court Chief Justice GS Sandhawalia and Justice Anu Sivaraman of the Karnataka High Court indicted Justice Varma.As Justice Varma reportedly refused to resign despite his indictment, then CJI Sanjiv Khanna on May 8 wrote to the President and the Prime Minister recommending his removal.What next?Now the ball is in the government’s court. Since the CJI has recommended Justice Varma’s removal, the government has given enough indication about a motion for his removal.As required under the Judges Enquiry Act, 1968, a motion for removal to be signed by 50 members of the Rajya Sabha or 100 members of the Lok Sabha has to be moved.The Rajya Sabha Chairman or the Lok Sabha Speaker--as the case may be--can either admit or refuse to admit the motion for removal of a judge.If the motion is admitted, a three-member committee comprising a Supreme Court judge, a high court chief justice and a distinguished jurist will be constituted to probe the complaint and determine whether a case is made out to initiate the process for the removal of Justice Varma.If the committee exonerates him, Justice Varma can continue as a judge. However, if the committee finds him guilty of “misbehaviour or incapacity”, the motion for his removal will be taken up for consideration and debated in each House of Parliament.To remove a judge from office, the motion has to be adopted by each House by a special majority (i.e. a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting). After the motion is adopted in both the Houses, it’s sent in the same session to the President, who will issue an order for removal of the judge.Justice Varma’s optionsHowever, at any stage during the entire process, Justice Varma can follow the path of Justice Soumitra Sen of the Calcutta High Court who tendered his resignation in September 2011 to escape earning the dubious distinction of being the first judge to be removed.

Tribune Explainer: Why removing a judge is not easy

Satya Prakash

Tribune News Service

Tribune Explainer: Why removing a judge is not easy

Satya Prakash

Tribune News Service

Unlock Premium Insights in This Article