Explainer Judging the judges
The recovery of cash from the residence of Justice Yashwant Varma of the Delhi High Court has caught the attention of the country. In the aftermath, the SC formed a three-member committee to probe into the matter and Justice Varma was transferred to Allahabad High Court. Members of the legal fraternity have called for initiating the impeachment proceeding against Justice Varma, but removing a sitting judge from office is easier said than done. It is a complex procedure, which involves parliamentary approval, judicial inquiry and presidential assent. No wonder this process has never achieved success as no judge has ever been impeached. Why such an intricate procedure was laid out and how it is done, let’s understand the law behind it.
Constitutional provisions
While the Constitution does not use the word ‘impeachment’, it is colloquially used to refer to the proceedings under Article 124 (for the removal of a Supreme Court judge) and Article 218 (for the removal of a high court judge). In a nutshell, the procedure to remove High Court and Supreme Court judges is essentially the same. This uniform procedure ensures consistency and maintains the independence of the judiciary.
Judges Inquiry Act, 1968
The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968. While the Constitution outlines the removal of judges in the above mentioned articles, it lacks specific procedural details for investigating allegations. The Judges (Inquiry) Act, 1968, addresses this deficiency by establishing a structured and transparent process for such inquiries, ensuring fairness and clarity. Essentially, the Judges (Inquiry) Act, 1968, establishes the procedural framework to investigate and establish whether these constitutional grounds for removal are met.
Grounds & interplay between Constitution and statute
The grounds for removal of judges are mentioned in the Constitution only. These grounds are (i) proved misbehaviour and (ii) incapacity. The Judges (Inquiry) Act, 1968, primarily focuses on the procedure for investigating the grounds and not the grounds themselves. Hence, the Act provides the procedural grounds for the investigation of the grounds mentioned in the Constitution.
Procedure and the legal angle
First of all, the MPs need to formally introduce a motion for impeachment. The motion can be introduced in the Lok Sabha or Rajya Sabha. The motion, if brought in Lok Sabha, must be supported by 100 MPs and if in Rajya Sabha it must be backed by 50 MPs. If the motion is admitted, the Speaker or chairman (whoever receives it) will constitute a three-member committee to investigate the complaint under the Judges (Inquiry) Act, 1968. The panel consists of three members:
(i) Supreme Court judge (ii) a Chief Justice of a High Court and (iii) an eminent jurist
Now, a report will be prepared by the panel after completing the inquiry. If it finds the judge guilty, they will recommend the removal of the judge. After the recommendation of removal, the matter is brought back to Parliament for a vote. Both Lok Sabha and Rajya Sabha will then debate the case. In both houses, two-thirds of the MPs present and voting must support the motion for impeachment. This means a majority vote (special majority) in both houses is needed to remove the judge. Once the motion is passed by both houses of Parliament, it is sent to the President. The President will then give assent to the motion and the judge is formally removed from office.
Why such a complicated process?
The complicated and elaborate process for removing a judge is provided to ensure independence of the judiciary. Judges must be free from political pressure or undue influence to deliver impartial judgments. Such job security is essential to ensure that judges act without fear of loss of post. The high bar for removal prevents the process from being used as a tool for political vendettas.
Can the judge file an appeal?
As soon as the President signs the order, the judge’s removal is final. There is no appeal against impeachment.
Now, let’s solve some MCQs on the topic:
Q 1. Who can initiate the impeachment process of a judge in India?
a) Chief Justice of India
b) President of India
c) Member of Parliament
d) Attorney General of India
Answer: c) Member of Parliament
Q2. What type of majority is required in each House of Parliament for a judge's removal?
a) Absolute majority.
b) Special majority.
c) Two-thirds of members present.
d) Simple majority
Answer: c) Two-thirds of members present and voting plus a majority of the total membership.
Q.3 In which house of the Parliament can the motion for impeachment of a judge be introduced?
a) Lok Sabha
b) Rajya Sabha
c) Either Lok Sabha or Rajya Sabha
d) President's Office
Answer: c) Either Lok Sabha or Rajya Sabha
