DH Deciphers | Judging the judges: The removal process for higher judiciary

Chief Justice of India Sanjiv Khanna has constituted a three-member panel to examine the alleged recovery of a huge stash of cash from the residence of sitting Delhi High Court Judge Justice Yashwant Varma. Sumit Pande explains the procedure involved in the in-house judicial probe and the due process laid down in the Constitution for removing an HC or SC judge from office.

How can a sitting judge in the higher judiciary be removed from office?

To maintain the independence of the higher judiciary, the Constitution under Articles 121 and 211 bars Parliament and state legislatures from discussing the conduct of judges. Parliament can however consider a motion to impeach a judge according to the procedure laid down in the Judges (Inquiry) Act, 1968.

Judges can also be removed from office through in-house guidelines adopted by the Supreme Court in 1999 for complaints received by the President, Chief Justice of a High Court of the Chief Justice of India.

The process is based on the 1991 K Veeraswamy judgment where the Supreme Court said that the higher judiciary came under the purview of the Prevention of Corruption Act but to investigate a sitting judge, prior sanction from the CJI was mandatory.

How does Parliament deal with the impeachment of a Constitution Court judge?

An impeachment motion against an HC or SC judge can be moved with the backing of 100 Lok Sabha MPs or 50 Rajya Sabha MPs. If admitted, the allegations are investigated by a three-member judicial committee. If the committee finds merit in the allegations, both Houses of Parliament have to pass the motion for the impeachment of the judge by a special majority, i.e., the majority of the two-thirds of the members present and voting, which should not be less than half of the total strength of the House.

Has any judge ever been impeached by Parliament?

No judge has ever been impeached by Parliament. SC Judge Justice V Ramaswami faced impeachment proceedings in 1993, but the motion failed in the Lok Sabha. Calcutta HC Judge Soumitra Sen resigned in 2011 after the Rajya Sabha passed an impeachment motion against him.

What is the in-house inquiry process?

Upon receipt of a complaint, the CJI decides if the matter needs further investigation, and a response is sought from the judge against whom the allegations have been made. The CJ of the concerned high court is also asked to submit a report. On receipt of the inputs, if further probe is required, the CJI may constitute a three-member committee comprising two CJs from other HCs and one HC judge. Based on the inquiry report, if the conduct of the accused judge merits removal, the CJI can advise the judge to resign.

If the judge does not heed the advice, all judicial work can be taken from him and the CJI can inform the President and the Prime Minister to initiate impeachment proceedings. If the misconduct is not serious, the CJI can advise the accused judge accordingly. The probe process against an high court CJ is similar, except that the probe panel should comprise an SC judge and two HC CJs. For an SC judge, the panel should comprise three SC judges.

What action has the SC initiated after introducing an in-house inquiry mechanism?

In 2003, Justice Shamit Mukherjee was asked to resign and was later arrested after the CBI reached out to the then CJI with documents related to a scam in the Delhi Development Authority.

In 2008, an SC in-house inquiry probed allegations of corruption against Justice Nirmal Yadav of the Punjab and Haryana High Court. In 2011, the CJI sanctioned prosecution against Yadav.

In 2017, the then CJI Justice Dipak Mishra constituted an in-house committee to probe allegations of corruption against Allahabad High Court lawyer Justice SN Shukla. Based on the report, the CJI urged Justice Shukla to resign or retire. When he refused, judicial work was withdrawn from him.