Why is it in the news?
1. An in-house inquiry committee consisting of three judges with regard to burnt currency notes found in the storeroom in the official residential premises of the High Court Judge, justice Yashwant Varma was submitted before the Chief Justice of India. The Report was forwarded to the President and the Prime Minister of India by the then Chief Justice of India, Sanjeev Khanna. The report said that Justice Varma and his family members were in covert or active control of access into the storeroom. The report said that the currency notes found during the process of dousing of fire were highly suspicious items. They could not have been placed in the storeroom without the tacit or active consent of justice Varma or his family members. That the store room was under the physical control of Justice Varma and his family members and therefore, any suspicious item found in the store room will have to be accounted for by Justice Varma and his family members.
2. The report also blamed police officials for slipshod handling of burnt currency notes in the premises of Justice Varma because neither FIR was lodged nor a seizure memo was prepared on the scene of crime. The higher police officials explained the inaction by pointing out the sensitivity of the issue and the absence of Justice Varma at his residence at the time of incident.
3. An impeachment proceeding against Justice Varma is expected to be introduced in Parliament during the Monsoon session for his removal.
What is impeachment?
1. Impeachment is a constitutional mechanism for removing certain high ranking constitutional functionaries from office for defined grounds such as misbehaviour, incapacity or violation of the constitution. The process is designed to ensure accountability while protecting the independence of key constitutional bodies. It is a procedure which involves voting in a Parliament and judicial inquiry.
2. In India, the President of India (Article 61) can be impeached for the violation of the constitution. The Vice President of India, under article 67 (b) can be removed by resolution passed by majority of total membership of the Rajya Sabha and agreed by simple majority in the Lok Sabha.
3. The Supreme Court Judges under article 124 (4) and High Court judges under article 217 (1) (b), Chief Election Commissioner under article 324 (5), Comptroller and Auditor General of India under article 148 (1), can be removed on the grounds of proved misbehaviour or incapacity.
4. Other constitutional functionaries like UPSC Chairman and members, State PSCs Chairmen and members, Chairman of National Commissions of SCs, STs and Backward classes and Chairman and members of Finance Commission are not removed through impeachment process because Parliament is not involved in their removal. Instead, they can be removed on the grounds of misbehaviour like insolvency , unauthorised paid employment, misconduct ,incapacity like infirmity of mind and body. The President of India refers allegations against the concerned constitutional authority to the Supreme Court which conducts judicial inquiry. He may suspend the accused constitutional authority till the inquiry is completed.
5.The accused constitutional authority is given an opportunity to defend himself. If charges are proved, the President may issue a removal order of the concerned authority. However, the President may accept or may not accept the findings of the Judicial inquiry.
6. Constitutional authorities like the Prime Minister of India do not attract impeachment, process for his removal. He stays in office as long as he enjoys the majority in the Lok Sabha. Governor of a state and Attorney General of India hold their office till the pleasure of the President of India. The Speaker of the Lok Sabha/ Deputy Chairman of the Rajya Sabha can be removed by simple majority just after giving 14 days’ advance notice. They do not undergo the process of impeachment for their removal.
What is the procedure of impeachment of judges of the Supreme Court and High Courts in India?
1. The impeachment process for both the Supreme Court and High Courts judges is the same
2. A judge of the Supreme Court or High Court can be removed only on grounds of proved misbehaviour or incapacity. Proven misbehaviour is not defined in our constitution. It may include corruption, misconduct, partiality, favour, nepotism and faulty application of law. Similarly, incapacity means both physical and mental disability which hampers in the performance of his judicial duties.
3. The process begins with a motion which can be introduced in either House of the Parliament. The motion must be signed by at least 100 members of the Lok Sabha or at least 50 members of the Rajya Sabha. The motion must specify the charges against the concerned judge and must be accompanied with supporting evidence. If the motion is presented in the Lok Sabha, the Speaker decides whether to admit or not. If it is presented in the Rajya Sabha, it is chairman (Vice President) decides with regard to the admissibility of the motion.
4. Once admitted, the Speaker/Chairman constitutes a three member judicial inquiry committee under the judge inquiry Act, 1968, consisting of Chief Justice of India or his nominee, the senior most judge of the Supreme Court, a Chief Justice of a High Court and a distinguished jurist. The committee conducts a detailed inquiry giving the accused judge an opportunity to respond. It collects evidence, examines witnesses and records findings. The committee submits its report to the Speaker/ the Chairman stating whether the charges are substantiated or not.
5. If the committee finds the judge guilty of the charges, the impeachment motion is taken up for debate and voting in the House where it was introduced. The accused judge/ or his representative is also given the opportunity to participate in the debate and respond to the charges labelled against it. After the end of the debate motion is presented for voting in the House. It must be passed by special majority in both Houses of Parliament in the same session. A Special majority means a majority of the total membership of each House and at least two thirds of the members present and voting in each House. The motion must be passed separately in both the Lok Sabha and Rajya Sabha. For example, if a motion of impeachment for the removal of a judge of a High Court/ Supreme Court is brought in the Rajya Sabha, and if the total membership of the Rajya Sabha at that point of time is 242 then the motion must be passed by at least 122 members. If at the time of voting there are 180 members in the Rajya Sabha, the motion must be passed by at least 120 members present and voting. If both the conditions are fulfilled, this is called special majority.
6. If both Houses of the Parliament pass the motion with special majority in the same session against the accused judge, it is presented before the President of India. He has no option but to issue an order for the removal of the judge.
Defects of impeachment proceedings of judges of Higher judiciary of India
1. Excessive High thresholds - The impeachment proceedings against judges of Supreme Court and High Courts require the motion to be signed by 100 Lok Sabha or 50 Rajya Sabha MPs, followed by a special majority.
2. Political influence and partitionship - A political party having majority in both Houses of Parliament can use the impeachment process as a tool for political vendetta against judges who deliver judgements against the government interests. Conversely, judges aligned with the ruling party may favour them and put the opposition parties at the dock. This may compromise fairness in the delivery of justice.
3. Lengthy and Cumbersome process - The impeachment proceedings in India go through different stages of investigation, parliamentary debate and voting. This causes undue delay in the delivery of justice and thus, it loses effectiveness.
4. Ambiguity in defining misbehaviour - The impeachment proceedings can be initiated on the grounds of proved misbehaviour or incapacity but proved misbehaviour has not been defined. It leads to ambiguity among MPs and so, it becomes difficult to arrive at consensus in initiating impeachment against the erring constitutional authority.
5. Limited transparency - Chairman of the Rajya Sabha/ Speaker of the Lok Sabha may or may not accept the impeachment motion without giving detailed reason as to why the motion is not being accepted. Similarly, the proceedings of the inquiry committee are not as open as trials of the senate in the US.
6. Lack of the role of civil society - The impeachment process is driven by Parliament and the judiciary. There is no formal role for civil society. Therefore, lack of public participation limits responsiveness towards judicial misconduct.
7. Lack of alternative mechanism - Impeachment is the only constitutional mechanism to remove the Supreme Court/ High Court judge with no provision for lesser penalties. The absence of a graduated disciplinary framework limits the system's availability to address varying degrees of misconduct.
How judges of higher judiciary are impeached in other countries?
1. In the USA, the Supreme Court judges can be removed on the charge of treason, bribery, other high crimes and misdemeanours. Any member of the House of Representative can initiate the motion of impeachment based upon allegation of misconduct. A House Judicial Committee investigates the charge and gathers evidence. If the charge is substantiated , the motion is debated in the House. The impeachment proceeding is passed by a simple majority of 51% of members present and voting. Thereafter, the Senate conducts a trial, which is presided by the Chief Justice of the US. If the Chief Justice is the accused, the Vice President presides over the trial. After the conclusion of the trial the motion is put for vote in the Senate. If the motion is passed with 2/3rd majority, the accused judge stands removed from his office. The Senate may also vote to disqualify the accused judge from holding future public office.
2. In Pakistan, allegations are referred to the Supreme Judicial council under article 209, which consists of the Chief Justice of Pakistan as Chairman, two senior most Supreme Court Judges and two senior most High Court Chief Justices. Reference of allegation can be made by the President, Prime Minister or Supreme Judicial Council itself based on complaints. The SJC conducts a judicial inquiry. If the SJC finds the judge guilty of misconduct and incapacity it submits a report to the President. The President must remove the judge if the SJC recommends removal. The SJC may recommend suspension of the accused judge during inquiry subject to the Presidential approval. SJC decisions are generally final but Supreme Court review is possible for procedural irregularities.
3. In the UK, judges of the Supreme Court can be removed on the grounds of misbehaviour or incapacity. Misbehaviour includes corruption, criminal conviction, ethical breaches and persistent failure to perform duties. Incapacity includes both physical and mental inability to perform judicial functions. Complaints are handled by the judicial conduct investigations office (JCIO) an independent body or by the Lord Chancellor or Lord Chief Justice. After the investigation if the charge is substantiated, there is the requirement of agreement of the Lord Chancellor and Lord Chief Justice. Thereafter, the king removed the accused judge through a notification. Thus, no parliamentary vote is required like in India. The accused judge may be suspended during investigation.
4. In Australia, a judge of the Supreme Court can be removed by simple majority separately passed by both Houses of Parliament, the grounds for impeachment is proved misbehaviour or incapacity. The impeachment proceedings can be initiated by Attorney General or Government or Parliamentary motion. After the motion is accepted, a commission of judges and experts are constituted to investigate the allegation labelled against the accused judge. If the charge is substantiated, the motion is put for vote in both Houses of Parliament, if passed by simple majority in both Houses separately, the Governor General removes the accused judge. No federal judge has been removed through the impeachment process since 1901.
Ways Forward
1. The cumbersome process of impeachment proceedings against judges can be supplemented by creating a national judicial and constitutional oversight commission consisting of retired Supreme Court judges, former Chief Election Commissioner and independent experts.
2. The grounds for impeachment like proved misbehaviour must be codified so that ambiguity is removed. In addition, a code of conduct for judges should be enforced.
3. There is a need to suspend judges during inquiries.
4. There is a need to enhance transparency in the conduct of the inquiry committee and curtailment of discretionary power of the speaker of Lok Sabha/ Chairman of Rajya Sabha.
5. There is a need to reduce the threshold of special majority to be substituted by simple majority as it obtains in the UK/ Australia.
6. There is a need to prevent resignation tendered by an accused judge while the motion of impeachment is in the progress.
Conclusion
1. Impeachment proceedings against judges of the Supreme Court and High Courts in India suffer from high thresholds, political bias, ambiguous grounds, opacity and absence of public input. There is a need to establish an independent judicial body for handling complaints, introducing graduated sanctions, codifying grounds, enhancing transparency and reducing 2/3rd majority to simple majority vote in both Houses of Parliament.
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