• The Supreme Court has taken note of news reports over the purported controversial statements of Justice Shekhar Kumar Yadav at a VHP function and sought details from the Allahabad High Court on the issue.

• The development assumes significance amid the rising clamour seeking action from Chief Justice of India Sanjiv Khanna against the HC judge for his remarks.

• The Opposition INDIA bloc is working to initiate a motion in Parliament to impeach Justice Yadav of the Allahabad High Court.

The removal process

• The procedure for removing a judge is enshrined in Article 124(4) of the Constitution, which governs both Supreme Court and High Court judges (as per Article 218). 

• Judges can only be removed on two grounds: “proved misbehaviour” or “incapacity”. 

Removal requires a resolution passed in both Houses of Parliament with:

a) A majority of the total membership, and 

b) At least two-thirds of the members present and voting. 

• Article 124(4) and the Judges Inquiry Act 1968 determine the procedure of removal of the judges.

• A motion of impeachment addressed to the President is to be signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha and then delivered to the Speaker of Lok Sabha or the Chairman of Rajya Sabha.

• The motion is to be investigated by a committee of three judges of the Supreme Court and a distinguished jurist.

• If the Committee finds the judge guilty of misbehaviour or that he suffers from incapacity, the motion along with the report of the committee is taken up for consideration in the House where motion was moved.

• The judge is then removed by the requisite majority, i.e. majority of total and two-thirds of its members present and voting.

The Investigation Committee

• Once the motion is admitted, the Speaker of Lok Sabha or the Chairman of Rajya Sabha must form a three-member committee to investigate the allegations. 

This committee comprises:

i) The Chief Justice of India (or a Supreme Court judge). 

ii) A Chief Justice of a High Court. 

iii) A distinguished jurist. 

• The committee investigates the charges, frames allegations, and has powers to summon evidence and witnesses. If the charges involve mental incapacity, a medical examination may be conducted. 

Outcome of the investigation

• The committee submits its findings to the presiding officer. If it determines the judge is not guilty, the process concludes. However, if the committee finds the judge guilty, the House where the motion originated debates and votes on it. If passed, the resolution is sent to the other House. 

• Upon approval by both Houses in the same session, the President issues an order for removal.

Previous cases of judicial impeachments

India has witnessed six impeachment attempts against judges since Independence, but none have resulted in the removal of a judge. 

Notable instances include:

i) Justice V. Ramaswami (1993): Accused of financial impropriety, the motion failed due to lack of support in Parliament.

ii) Justice Soumitra Sen (2011): Found guilty of corruption, the motion passed in Rajya Sabha but lapsed after his resignation before Lok Sabha could vote.

iii) Justice S.K. Gangele (2015): Accused of sexual harassment, he was cleared by the inquiry committee.

iv) Justice J.B. Pardiwala (2015): Faced impeachment over remarks criticising reservations but expunged the comments, leading to the motion's withdrawal.

v) Justice C.V. Nagarjuna (2017): Allegations of victimising a Dalit judge and financial misconduct did not gather sufficient parliamentary support.

vi) Chief Justice Dipak Misra (2018): The politically charged motion was rejected at the preliminary stage by then Rajya Sabha Chairman M. Venkaiah Naidu.

The need for reforms:

• Method pursued by the legislature in the Act of 1968 falls abysmally short of the mark as the same makes judges susceptible to a political process of voting which may or may not impeach judges despite a three-member committee holding the judge guilty. Such an event is a travesty of natural justice as there is a propensity for a ‘guilty’ judge to be let off on the whims of a political process of voting.

• Entire process concerns of a possibility of harming judicial independence. This stems from a possibility of Judges being harassed to toe the ideology of a party in majority or face their wrath in an impending motion of impeachment.

• The words “misbehaviour” or “incapacity” have neither been defined nor clarified in the Constitution.

• The process of removing a judge is too elaborate and somewhat cumbersome.

(The author is a trainer for Civil Services aspirants.)