Prakash Yedhula (Lawyer) 16 September 2008

Process of impeachment

‘Impeachment of judge only on proven misbehaviour’

Why is the process of impeachment of a judge the subject of debate now?

Chief Justice of India (CJI) K G Balakrishnan recommended the removal of Calcutta High Court judge Soumitra Sen to the government at the beginning of August. The judge is accused of having been involved in financial misappropriation before he was appointed as a judge. This recommendation has revived the debate over the cumbersome process for impeachment as laid down in the Constitution.

What is the process for impeachment?

Article 124(4) of the Constitution provides for the removal of a judge only on the ground of proved misbehaviour or incapacity. Under the Constitution, impeachment is the only way of removing a high court or Supreme Court judge. The procedure is laid out in the Judges Inquiry Act, 1968. According to the Act, a complaint against a judge has to be made through a resolution by 100 Lok Sabha MPs or 50 Rajya Sabha MPs. These MPs have to go through the complaint and if they are satisfied they can submit a memoramdum to the Lok Sabha Speaker or the Rajya Sabha chairman. The Speaker or chairman, after acquiring the sense of the House, has to constitute a three-member inquiry committee comprising two judges of the Supreme Court and a jury to examine the complaint and to determine if a case is established prima facie. It can also get the complaint investigated through different agencies and make recommendations. These recommendations have to be debated in both Houses of Parliament in the same session. If only one House considers the matter and it remains pending in the other House in that session, the resolution will fall through. It will then have to be brought in afresh in the next session. Thus, the resolution has to be passed by two-third majority in both Houses in the same session. Only then can the resolution be sent to the President who will then order removal of the judge.

Why is it said to be almost impossible to impeach a judge?

It is difficult to get a large number of MPs to sign the impeachment motion unless there is absolute documentary evidence of the judge’s guilt, which in most cases is not possible unless some investigative agency has investigated the charges and collected the evidence. Since impeachment requires two-thirds majority in Parliament, mustering the numbers necessary for impeachment has become virtually impossible. The problem of judicial accountability has been complicated further by the Supreme Court’s judgement in the Veeraswami case, in which it declared that no judge of the high court or Supreme Court could even be subject to investigation in any criminal offence of corruption or otherwise, unless one obtains prior written consent of the CJI. Since this judgement, no sitting judge has been subject to even investigation despite several complaints of corruption in the judiciary. The police cannot approach the CJI for permission to investigate unless they have clinching evidence and this they cannot collect unless they investigate, leading to a catch-22 situation.

What is the history of impeachment in India?

No judge has ever been impeached. The only exception was the case of justice V Ramaswami who faced impeachment in 1991, an attempt that failed due to the absence of a political consensus. A large number of Congress MPs abstained from voting, thus defeating the impeachment motion. The MP who had moved the impeachment motion against Justice Ramaswamy is the current speaker, Somnath Chatterjee.

How are errant judges disciplined in the absence of the option of impeachment?

The Supreme Court has transferred judges for errant behaviour from one high court to another to discipline them, though the wisdom of this method of foisting a tainted judge on the litigants of another high court has come in for much criticism. In 1997, the Supreme Court passed two resolutions establishing in-house procedures for examining any complaints against a judge. By these resolutions, the CJI and two colleagues are to examine the charges against a judge and if found guilty have to proceed against him through a process other than impeachment.

Reply Follow

4 Replies

Shree. ( Advocate.) 16 September 2008

Discrepancy in procedures :

THE Judges (Inquiry) Bill, 2006, seeks to establish a National Judicial Council (NJC) to undertake preliminary investigation and to inquire into allegations of misbehaviour or incapacity of a judge of the Supreme Court or of a High Court. The Bill also seeks to regulate the procedure for such investigation, inquiry and proof and to impose minor punitive measures and for the presentation of an address by Parliament to the President.

The Bill creates two procedures called reference and complaint. Under the reference procedure, the Rajya Sabha Chairman or the Lok Sabha Speaker can make a reference to the NJC for an initial inquiry into allegations contained in a notice for removal of a judge admitted in the House.

Under the complaint procedure, any person may make a complaint in writing to the NJC in respect of a judge. If the complaint is found to be false, vexatious and not made in good faith, the complainant is liable to be punished with imprisonment for a term of up to one year and also a fine of up to Rs.25,000. (The committee has suggested that the NJC can so punish the complainant only after due process of inquiry.)

The committee has pointed to a serious discrepancy in these provisions. A notice for the removal of a judge can be admitted in the Lok Sabha only if it has the signatures of not less than 100 members and in the Rajya Sabha only if it has the signatures of at least 50 members. Only after the notice is admitted can the Presiding Officer of the House make a reference to the NJC to probe the allegations. However, under the complaint procedure a single person can make a complaint to the NJC.

The committee has found that the reference procedure, rather inexplicably, imposes a much higher threshold requirement in the form of obtaining the signatures of several Members of Parliament. Under the complaint procedure, one individual is treated on a par with 100 MPs, the committee felt.

The committee has recommended the formation of a broad-based empowered committee as part of the NJC. This committee, it has opined, must have representation not only from the Judiciary but from the Executive, Parliament and the Bar and must be entrusted with the responsibility of screening complaints, including those referred by the Presiding Officers of Parliament after the admission of a notice for removal of a judge.

In its present form, the Bill provides for a five-member NJC – all drawn from the Judiciary – comprising the Chief Justice of India as the Chairperson, two senior-most judges of the Supreme Court and two Chief Justices of the High Courts to be nominated by the Chief Justice of India.

The Bill seeks to exclude the Chief Justice of India from the purview of the complaint procedure to be initiated by a person. The committee has disapproved of this exclusion, suggesting that complaints can be made against the Chief Justice of India also.

Clause 20 of the Bill makes provision for the following: If after an inquiry the NJC is satisfied that all or any of the charges in regard to a judge have been proved and if it is of the view that the charges do not warrant his or her removal, it may impose all or any of the following minor measures: issuing advisories; warnings; withdrawal of judicial work for a limited period of time, including cases assigned to the judge; requiring that the judge retire voluntarily; and censure or admonition, public or private.

Of these, the committee has recommended the deletion of the measure requesting the judge to retire voluntarily as it would amount to enabling the judge to bypass the accountability process. It has also recommended that the word minor in the clause may be changed to “appropriate”.

Clause 30 of the Bill makes provision for a judge, if aggrieved by the order of removal passed by the President, or a final order passed by the NJC imposing one or the other minor measures, to prefer an appeal to the Supreme Court. The committee has recommended the deletion of this clause as keeping it would defeat the very purpose for which the Bill was introduced.

Clause 33 of the Bill requires that all records and documents related to a complaint, its preliminary investigation and inquiry be confidential. The committee favoured the creation of an exception to make the final order of the NJC known to the people.