What is the procedure for removing judges? | Explained Premium

Fifty-five MPs submit motion to remove Allahabad High Court Judge, Justice Shekhar Kumar Yadav, sparking constitutional debate.

The story so far: Fifty-five MPs of the Rajya Sabha have submitted a motion, for removing Allahabad High Court Judge, Justice Shekhar Kumar Yadav, to Chairman of the Rajya Sabha.

Articles 124 and 217 of the Constitution provide that a judge of the Supreme Court/High Court shall be removed by the President, on the grounds of ‘proved misbehaviour’ or ‘incapacity’ after a motion is passed in each House of Parliament 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 (special majority) in the same session. The Constitution does not define the terms ‘proved misbehaviour’ or ‘incapacity.’ The Supreme Court has opined in various cases that wilful misconduct in office, corruption, lack of integrity or any other offence involving moral turpitude would constitute misbehaviour. Incapacity here means a medical condition that may include physical or mental incapacity.

The detailed procedure for removal is provided in the Judges (Inquiry) Act, 1968. It stipulates that a 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/High Court judges and a distinguished jurist. If the Committee, after investigation, absolves the judge of any misbehaviour or incapacity, the motion pending shall not be proceeded with. If found guilty of misbehaviour 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.

Justice Yadav made communally-charged remarks while speaking at an event organised by the Vishwa Hindu Parishad. He is reported to have said the country would be run according to the wishes of the majority. The ‘Reinstatement of Values of Judicial Life’ adopted by the Supreme Court in 1997, and followed by all the High Courts, mandates that behaviour and conduct of members of the higher judiciary must reaffirm people’s faith in the impartiality of the judiciary. The judges should not commit any act of omission or commission that is unbecoming of the high office they occupy. Notably, though the Judges (Inquiry) Bill, 2006 was not passed by the Parliament, it defined ‘misbehaviour’ to include violation of code of conduct for the judges. This bill proposed imposition of ‘minor measures,’ like issuing warnings, public or private censure, withdrawal of judicial work for a limited time etc., for misconduct that does not warrant removal.

The Blackstone’s ratio in criminal jurisprudence that ‘it is better that ten guilty persons escape than that one innocent suffer’ can be applied even when it comes to the removal of judges. The stringent process with the requirement of special majority in both houses has resulted in the non-removal of judges even after having been found guilty of misbehaviour by the inquiry committee. This is nevertheless essential to protect the independence of judges while discharging their duties. The Chairman of the Rajya Sabha, against whom himself a notice of motion for removal has been submitted, is unlikely to admit the present motion. The Supreme Court has issued a notice seeking details of the controversial speech made by Justice Yadav. The Judge is likely to appear before the Supreme Court Collegium to explain his stand. It is cardinal that Judges display behaviour that behoves the high constitutional office they hold.

Rangarajan R is a former IAS officer and author of ‘Polity Simplified’. Views expressed are personal.