In this article, we would be discussing about how are the Judges of the judiciary on different hierarchies removed from their offices. It is the power of the President of India that he can remove the Judges from their office if they are proved disqualified on mainly two grounds. It is discussed elaborately in the article about the procedure of removing Judges in India.
The procedure to remove Judges may seem to be a little complicated but it is actually not. There are mainly two grounds on which the Judges of the Supreme Court and the High Court can be impeached i.e. they can only be removed from their office on two grounds, which are:
- Proved misbehavior and,
This means the Judges of the Supreme Court and the High Court can only be removed if it is proved that they misbehaved or are incapacitated to hold such responsibility and authority. The process of removing a Judge of the Supreme Court is regulated by the Judges Inquiry Act, 1968, and is called impeachment. He can only be removed by an order of the President of India. The President may issue the order for removal after addressing the Parliament, and the order should be supported by a special majority of each House of the Parliament (Lok Sabha and Rajya Sabha), i.e. a majority of the total members of each House and a majority not less than 2/3rds of each House present and voting, and then it is presented before the President for the purpose of such removal.
Removal of a Supreme Court Judge:
In India Article 124(4) talks about the removal of a Judge of the Supreme Court. It states that:
A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.[i]
- A motion for removal is signed by 100 members of Lok Sabha or 50 members Rajya Sabha and then it is to be given to the Speaker/Chairman. The removal motion can be introduced in either of the two Houses of Parliament.
- The Speaker/Chairman may either admit and reject the motion for removal of such Judge.
- A three-member committee is constituted, in case the Speaker or the Chairman admits the motion. The three-member committee is supposed to investigate into the charges. The committee should consist of:
- The Chief Justice of India or a Judge of the Supreme Court
- The Chief Justice of a High Court
- An eminent jurist.
The Committee frames charges and asks the judge to give to them, a written response. After the inquiry has been done, the inquiry committee determines whether the charges are valid or not. It then submits the report. The judge is given a chance to examine the witnesses.
- If in case, the committee holds the Judge to be guilty of the charges of either, misbehavior or incapacity then, the House in which the motion was introduced may consider such motion for removal of the specific Judge. But if in case he is not held guilty then there can be no actions against him.
- After it is passed with a special majority in the House, it was introduced in, it goes to the second House, where it gets passed, again, with a special majority.
- After the motion is passed in both the Houses of the Parliament by special majority, it is then presented to the President for removal of the Judge.
- Finally, the President passes an order removing the Judge and the Judge is thereupon, removed.
No judge of the Supreme Court has been impeached up till now. It was only in the case of Justice V Ramaswamy of the Supreme Court that a motion for impeachment was initiated and an Inquiry Committee was also set up but this motion defeated in the Lok Sabha itself as the committee found him not guilty.
Removal of a High Court Judge:
In the same manner, Article 217 (1)(b) and 218 talk about the removal of the Judge of aHigh Court.A judge of a High Court can also be removed only on either one of the given two grounds, misbehavior or incapacity. The process of removal of a High Court Judge is similar to that of a Supreme Court Judge which means, the President may remove a High Court Judge from his office only when both the Houses of the Parliament pass a resolution by a 2/3rd majority of their members present and voting in each House requesting the President to remove the Judge.
Judicial independence and judicial integrity are veryimportant for the accomplishment of the idea of democracy. Therefore, the constitution makers have, with utmost importance, carefully drafted the provisions of the Constitution to ensure that the judicial independence and supremacy is not compromised. The complicated process of removal of judges was demonstration of the same. Although, no Judge has been impeached in independent India, but there are have been notable instances of misbehavior or incapacity on the part of Judges.
In the past, the process for removal of judges was aimed at being tricky and complicated so that the Judges would not have any external pressure on themselves and they could do justice to the citizens under all circumstances. The protection of this right of Judiciary to decide a case with full independence and freedom of expression and authority is handled by Article 124(4) of the Constitution of India. But, in recent times there have been many issues that talk boldly of rising judicial impropriety which could be seen in the cases of Justices Ramaswamy, Soumitra Sen and P. Dinakaran.[ii]In case of Justice Dinakaran, the proceedings came to a haltbecause of his resignation after the investigation committee upheld the charges against him and declared him guilty. Also, the proceedings in case of Justice Soumitra Sen drew to a stand after he extended his resignation when the removal motion was passed by the Rajya Sabha. The disturbance in this process removal of the judges, even after the enquiry held them guilty is due to the inconvenient process.[iii] Also, the failed attempt to remove the former Chief Justice of India, Dipak Mishra has drawn considerable attention towards the Judges (Enquiry) Act, 1968. It has suggested some new reforms in the system. A procedural statute that regulates the procedure for the investigation and proof of misbehavior/incapacity on the part of a Judge of the Supreme Court or a High Court and also for the presentation of such matter by the Parliament to the President. It covers all stages from admission of the motion of removal to addressing of the motion in the two Houses of the Parliament. [iv]
The procedure of removal of Judges is a topic of debate as it has its own pros and cons as far as the purpose of Judiciary is concerned. India has given an independent status to Judiciary which means it should be free of all externalities in order to carry out its tasks. The judges need to impartial and accurate in what they do, their ideologies and thought processes should only be affected only by factual circumstances. The basic principles of Rule of Law and Democracy are required to be maintained by the Judiciary. The Judges cannot misuse their independence in these areas. They have to be authoritative and responsible in making decisions. Even though, everybody is subject to making mistakes and it is okay to make minor mistakes sometimes but as long as they do not fail the sole purpose of a particular task and considering judicial matters, precision is the key. Therefore, those judges who fail to carry out their jobs responsibly and their actions fall under the category of any of the two grounds as mentioned above can be removed from their office. There has not been an extraordinary number of cases where these Judges couldbe removed so we can say that, Judges hold responsibility and maintain the integrity of Judiciary very well. Besides that, there can be certain reforms in this domain so that the process can be removed and less humiliating for the Judges. They should feel both, responsible and accountable of their actions so that they can work properly, effectively and efficiently and people’s faith in Judiciary can be restored.
Q1. What were the charges against the Justice Sen?
Ans. There were two charges against Justice Sen. He was accused of misappropriating large sums of money which he received as a receiver appointed by the Calcutta High Court. He was also accused of misrepresenting facts in this regard to the High Court.
Q2. What is the importance of Parliament’s discussion on the Justice Sen issue?
The Rajya Sabha is scheduled to discuss a motion for the removal of Justice Soumitra Sen of the Calcutta High Court. Till date, no judge of the higher judiciary (Supreme Court and High Courts) has been successfully impeached.
Q3. How is the motion for removal of a judge initiated?
Ans. A motion has to be moved by either 100 Lok Sabha members of Parliament or 50 Rajya Sabha MPs.
Q4. How can removal process against the Chief Justice of India be initiated?
Ans. To move an impeachment motion against the CJI, signatures of 100 MPs are needed in Lok Sabha and in Rajya Sabha, signatures of 50 members are required. The motion can be introduced by in either of the House.
Q5. What are the Constitutional guidelines on this matter?
Ans. The Indian Constitution mentions that the CJI can remain in office till the age of 65 years. Under Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969, the impeachment of the CJI or an SC judge, motion needs to be introduced in either Houses of the Parliament.