The Path to Impeachment: How to Remove A Judge

As of today, no judge in India has been impeached, despite several attempts to initiate proceedings. The first such attempt in independent India occurred in 1993 against Justice V. Ramaswami. He faced accusations of financial irregularities, and while the inquiry committee found him guilty, the impeachment motion failed in the Lok Sabha due to the ruling party members abstaining from the vote.

The most recent impeachment process was against Judge Yashwant Verma. The proceeding begin in parliament due to the discovery of large amounts of currency at his residence, which highlighted the complexity of the entire process. 

Impeaching judges is intentionally made difficult to safeguard judicial independence and prevent politically motivated removals. The process, outlined in the Constitution and the Judges (Inquiry) Act, 1968, requires a high bar for proving misconduct or incapacity and involves both Houses of Parliament. This ensures judges can make decisions without fear of undue influence or retaliation. 

In this Weekly, we will explore the impeachment process for judges in India. 

Laws Governing the Impeachment Process: 

The process for impeaching a judge in India is governed by two key legal instruments:

• The Constitution of India: The Constitution provides the foundational principles and grounds for removal.

• Article 124(4) specifies that a Supreme Court judge can be removed from office by an order of the President, but only after an address from both Houses of Parliament has been passed by a special majority.
• A judge can only be removed on the grounds of “misbehaviour” or “incapacity”, either of which must have been proved. Eg: Misuse of public funds, misappropriation of property, unable to perform judicial functions due to a severe and persistent physical or mental illness.
• Article 218 extends these same provisions to the judges of High Courts.
• The Judges (Inquiry) Act, 1968: This is the primary law that regulates the detailed procedure for the investigation and proof of “misbehaviour” or “incapacity”. It outlines the specific steps that must be followed, from the initiation of a motion in Parliament to the final order of the President.
  

Process of Impeachment

The formal removal process begins with a motion in Parliament.

• Initiation of Motion: The motion for impeachment can be initiated by either the Lok Sabha (signed by 100 members) or the Rajya Sabha (signed by 50 members).
• Admission of Motion: The Speaker of the Lok Sabha or the Chairman of the Rajya Sabha can either admit or reject the motion. They may consult with others before making a decision. If the motion is admitted, the Speaker or Chairman (presiding officer), as the case may be,  forms a three-member inquiry committee.
• Inquiry Committee: The committee is typically composed of:
  • A sitting judge of the Supreme Court (or the Chief Justice of India).
  • A Chief Justice of a High Court.
  • A distinguished jurist (Legal Scholars, renowned professors, writers of legal texts etc) .

This committee investigates the charges, frames definite charges, and gives the judge an opportunity to present a defence.

Investigation Process: 

• The committee frames specific charges against the judge based on the impeachment motion.
• The judge is given a copy of these charges and a reasonable opportunity to present a written statement of defense.
• The committee holds hearings, where the judge has the right to cross-examine witnesses, present evidence, and be heard in their defense.
• If the allegation is related to physical or mental incapacity, and the judge denies it, the committee can arrange for a medical examination by a Medical Board.

Committee’s Report: After the investigation, the committee submits its report to the presiding officer of the house where the motion was initiated, or in the case of a joint constitution, to the presiding officers of both the Houses. The report must state findings on each charge separately and their observations on the whole case. 

• If the committee finds the judge not guilty on any charges of misbehaviour or incapacity, the motion does not go ahead.. 
• If the committee finds the judge guilty on any charge of misbehaviour or incapacity, the motion through which the charge was initiated, and the report are placed before the concerned House of Parliament (or both Houses in case of a joint constitution) for consideration.

Parliamentary Debate and Voting: The motion, along with the committee’s report, is debated in the respective House. The judge (or their representative) has the right to defend themselves on the floor of the House.

Special Majority in Parliament: For the motion to pass, both Houses of Parliament must approve it by a special majority, first in the House where the motion was initiated and then by the second House. A special majority requires:

• A majority of the total membership of the House; and
• A majority of at least two-thirds of the members present and voting.

• Once both Houses pass the motion, it’s presented to the President of India. The President then issues an order for the removal of the judge.

The In-House Procedure

In addition to the formal parliamentary impeachment process, the judiciary also has an “in-house” procedure to address allegations of misconduct against judges. 

The in-house procedure is a private, internal process created by the Supreme Court of India. Its purpose is to investigate claims of misconduct against judges of the Supreme Court and High Courts.

This system allows the judiciary to handle minor issues on its own, bridging the gap between a simple complaint and the long, public, and political process of a full parliamentary impeachment.

The power to initiate an in-house inquiry against a judge in India primarily rests with the Chief Justice of India (CJI). The Chief Justice of India (CJI) gets this power from the Supreme Court’s own resolutions and judicial precedents

The Supreme Court’s “Full Court Resolution” of 1999 is a decision made by all the judges of the Supreme Court together. It created an internal system to deal with misconduct by judges that wasn’t serious enough for a full-scale impeachment by Parliament.This mechanism allows the Chief Justice of India (CJI) to initiate an internal inquiry. If the inquiry committee finds a judge guilty of serious misconduct, the judge may be advised to resign or take voluntary retirement. If they refuse, the CJI may withdraw judicial work from the judge and may recommend to the President and Prime Minister that a parliamentary removal motion be initiated.

In the case of Justice Yashwant Verma, an in-house committee found him guilty of misconduct and recommended his removal. When he refused to resign, the then-CJI Sanjiv Khanna wrote to the President and Prime Minister, enclosing the inquiry report and recommending that impeachment proceedings begin. Following this recommendation, Members of Parliament submitted a motion for impeachment to the presiding officers of both the Lok Sabha and the Rajya Sabha, formally starting the parliamentary process.