A GREATER IMMUNITY TO JUDGES OF SUPREME COURT AND HIGH COURT WHEN IT COMES TO IMPEACHMENT

This is a guest post contributed by Mr. Rajat Joshi, Advocate. The views expressed are completely personal without the intent to harm anyone or the institution.

Does the constitution protect this nation's judges from being removed or has the executive turned a blind eye to the increasing immorality of  sitting judges who have sworn to protect and uphold the integrity of the constitution of this great country.

Recently, A speech delivered by Justice Shekhar Kumar Yadav of the Allahabad High Court on December 8, 2024 garnered massive controversy and made national headline. The sitting judge had publicly expressed his biasness against the Muslim Community at an event organized by the legal cell of the Vishwa Hindu Parishad within the Court Premises, This again highlighted the judges immunity from impeachment or removal from the office of the Indian Judicial System.

Fifty-Five MPs of the Rajya Sabha led by eminent Jurist and President of Supreme Court Bar Association (SCBA) Mr. Kapil Sibal, Senior Advocate has moved a motion against the conduct of the Allahabad High Court Judge and has called for the impeachment of Justice Shekhar Kumar Yadav as per the constitution norms.

WHAT IS THE PROCEDURE FOR IMPEACHMENT OF JUDGES?

Article 124 (4) (5) and 217, 218 of The Constitution of India provides that a judge of the Supreme Court and High Court respectively shall be removed by the President, on the grounds of ‘proved misbehavior’ or ‘incapacity’ after a motion is passed  in each house of the Parliament by a majority of the total membership of that house and by the majority of not less than two thirds of the House present and voting (special majority) in the same session.

The Constitution of India dose not define the word ‘proved misbehavior’ or ‘incapacity’. The Supreme Court in many cases have given interpretation of the words ‘proved misbehavior’ or ‘incapacity’ as willful misconduct in office, corruption, lack of integrity or any other offence involving moral turpitude would constitute misbehavior. Incapacity here means a medical condition that may include physical or mental incapacity.

THREE-MEMBER COMMITTEE UNDER THE JUDGES (INQUIRY) ACT, 1968.

The Judges (Inquiry) Act, 1968 also provides a detailed procedure for removal of judges and A three-member committee comprising of a Supreme Court Judge, a Chief Justice of High Court and an eminent jurists is set up under this Act and the committee must review the  “proved misbehavior” or “incapacity”  of the concerned judge and decided. This committee functions like a trial court but is set in motion only after a successful attempt to impeach the concerned judge is moved in either in the Lok Sabha or Rajya Sabha, which must be approved by the Presiding Officer of the House- the Speaker in case of Lok Sabha, or the Vice President/Chairman in case of the Rajya Sabha. The notice of motion for removal should be signed by not less than 50 members in the Rajya Sabha and 100 members in the Lok Sabha. The Chairman or Speaker may after due consideration and consultation admit or refuse to admit the motion. If admitted, a three-member committee will be constituted consisting of Supreme Court Judge, a Chief Justice of a High Court and an eminent jurist. If the committee, after investigation, exonerate the judge of any misbehavior or incapacity, the motion pending shall not be proceeded with. If found guilty of misbehavior or suffering from incapacity, the committee report will be taken up in the Houses of Parliament which would then need to pass the motion with special majority.

Therefore, following a thorough investigation,  if the three-member committee determines that the concerned judge is guilty in accordance with Article 124(4) of the constitution,  a motion will be made and the panel's decision will be put to a new vote in Parliament  The decision of the three-member committee would need to be approved by two-thirds of the current MPs voting in favor of the motion, or an absolute majority in each house. If the judge in question resigns during the impeachment process, they are regarded as retired elected officials and "continue to enjoy the perks of being a retired judge, like pension" and other benefits.”

JUDGES AGAINST WHOM IMPEACHEMENT HAS BEEN ATTEMPTED SO FAR.

Justice V. Ramaswami (Retd. Judge Supreme Court of India)

Only two judges out of seven so far, aside from Justice Shekhar Kumar Yadav against whom impeachment has been attempted, have been found guilty for their “misbehavior” by the three-member committee.

Justice V. Ramaswami Retd. Judge Supreme Court of India was the first, who was found guilty of extravagant spending on his official residence such as buying of Air Conditioners, furniture and beddings, without following due process. This incident and some other incidents in the later 80s and early 90s led to the foundation of ‘Restatement of Values of Judicial Life’ adopted by the Supreme , Court on 7^th May 1997, as the code of conduct for those holding high offices in judiciary. The adverse verdict by the three-member panel constituted under the Judges Inquiry Act set the precedent of then CJI Sabyasachi Mukherjee deciding not to allocate any work to him in 1993. The failure of the impeachment motion in the Lok Sabha that year, did not led to the reversal of the CJI decision. No cases were listed for hearing before Justice Ramaswami’s Bench until his retirement three years later. On 10^th May 1993, of the 401 members present in the Lok Sabha, 196 voted for Ramaswami’s removal. While no one voted against the motion, 205 abstentions by the ruling party Congress ensured the defeat of the impeachment.

Justice Soumitra Sen (Judge Calcutta High Court)

The second judge to face an impeachment motion was Justice Soumitra Sen of the Calcutta High Court. Justice Sen became the first judge of India’s Judiciary who was voted to be removed by the Rajya Sabha by an overwhelming majority, but he resigned in September 2011, days before the motion was to be tabled in the Lok Sabha. Justice Sen was found guilty of misappropriating Rs. 33.23 lakh in a case in 1983, as a court-appointed receiver in his capacity as a lawyer, and misrepresenting facts before a Calcutta Court.

P.D. Dinakaran (Chief Justice Sikkim High Court)

Chief Justice of Sikkim High Court, P.D. Dinakaran resigned on July 29, 2011, the day of the first sitting of the three-members panel constituted under the Inquiry Act, to look into 16 charges, some of them as grave as appropriating more than 300 acres of lands from farmers in Tamil Nadu’s Tiruvallur district, after he became a judge of Madras High Court. Such resignations abort the trial and subsequent impeachment.

CONCLUSION

In India's history of judicial impeachment, Only two judges have been found guilty by the three-member committee so far. The aforementioned instances and parliamentary procedures demonstrate how difficult it is to remove judges from the office in India, which gives the judiciary a disproportionately high immunity from impeachment.