Article on Impeachment of judges in India

Introduction
The Indian judicial system is an important organ and commands considerable respect from the people for
dispensing justice impartially. The independence and integrity of the Judges has always been a crucial element in
the functioning and maturing of our democracy. The Separation of Powers and Judicial Independence has given
the judges a discretion in performing their functions impartially and in an unbiased manner. However, the
constitution makers have entrenched certain provisions to inhibit the complete control of judiciary and for judicial
accountability. If the judiciary misuses its power a process of impeachment against a judge can be initiated by the
executive.

Statutory Provisions and Acts:

The Indian Constitution lays down certain provisions for removal of a judge from his office and regulation of the
procedures thereof. Article 124(4) of the Constitution states that’s “A Judge of the Supreme Court shall not be
removed from his office except by an order of the President passed after an address by each House of Parliament
supported by 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 1 has been presented to the President in the same session for such
removal on the ground of proved misbehavior or incapacity2”. Further Article 124(5) states that the Parliament may
by law regulate the procedure for the presentation of an address and for the investigation and proof of the
misbehavior or incapacity of a Judge.

As per Article 124(5) the Judges (Inquiry) Act, 1968 was formulated. The Bill was referred to a Joint Committee of
the two Houses and after elaborate discussion in which eminent Members of Parliament and the then Attorney
General and former Attorney General gave their affirmation, the Joint committee gave its report on 13 May 1966.
The recommendations of the Committee were taken into account and The Judges (Inquiry) Act, 1968 was passed
prescribing the procedure for the investigation and proof of misbehavior and incapacity of Judges of the Supreme
Court, including the Chief Justice of India, the Chief Justices and Judges of the High Courts.

Procedure for Presentation of an address and Investigation:

Under the procedure laid down in section 3 of the Judges (Inquiry) Act, a notice of a motion for presenting an
Address to the President for the removal of a Judge, if given in Rajya Sabha, is to be signed by not less than fifty
members of the House and, if given in Lok Sabha by not less than one hundred members of that House. Thereafter,
Chairman or the Speaker, as the case may be, after due consideration and consultation, may admit or refuse to
admit the motion.

Consequent on the admittance of the motion, the Chairman or the Speaker, as the case may be, will constitute a
Committee of three members, one each from (i) the Chief Justice and other Judges of the Supreme Court; (ii) Chief
Justices of the High Courts; and (iii) distinguished jurists. In case the notices of motion are given on the same day
in both the Houses, the Committee will be constituted only if the motion has been admitted in both the Houses and
thereupon jointly by the Chairman and the Speaker. In case notices of motion are given in both the Houses on
different dates, the notice which is given later shall stand rejected.

The committee will then frame definite charges against the Judge on the basis of which investigation is proposed
to be held. In case of alleged physical and mental incapacity a Medical Board will be appointed by the Speaker or
the Chairman or jointly for medical examination of the judge.

The committee after the completion of investigation will submit its report to the Speaker or the Chairman. The
report thereafter, be laid before the respective House or the Houses. If the Committee absolves the Judge of any

1
Lily Thomas (Ms), Advocate v. Speaker, Lok Sabha and ors. r/w
Judicial Accountability v. Union of India and Ors.
2
In Re: C.S. Karnan
misbehavior or incapacity, the motion pending in the respective House or Houses, will not be proceeded with and
if the committee finds that the judge is guilty of any misbehavior or suffers from any incapacity, the motion will be
taken up for consideration by the House or the Houses in which it is pending. In case the motion voted for is
successful then an Address praying for the removal of the Judge will be presented to the President in the prescribed
manner by each House of Parliament in the same Session in which the motion has been adopted.

Instances of Impeachment:

The first ever impeachment motion was against a Supreme Court judge in 1993. The inquiry committee found him
guilty of wilful and gross misuses of office and for misappropriation of public funds. The Supreme Court Judge
survived the impeachment process as the motion failed to secure the required two –thirds majority of votes.

In August 2009 the Supreme Court collegium had recommended the Chief Justice of Karnataka High Court, for
elevation to the Supreme Court. Immediately after the news of proposed appointment became known, a group of
highly respected and responsible lawyers called the Forum for Judicial Accountability sent a series of
representations to the Collegium and the government detailing several very damaging allegations against him. The
allegations included, acquiring more than 350 acres of agricultural land and encroaching on another more than
hundred acres of public land; acquiring properties far beyond his known sources of income; hearing and deciding
cases of his friends etc. The Chief Justice of India, ordered an inquiry into the allegations by a District Magistrate
who confirmed it to be true. The Chief Justice of the Karnataka High Court also tried destroying evidence and
threatened revenue officials. All this came to be widely reported in the media. Thereafter, collegium had decided
to replace the Judge and recommended his transfer to the Sikkim High Court. Meanwhile the public demanded
FIRs to be registered against the Judge. This left no option but to initiate impeachment proceedings against him.
Eventually 75 members of the Rajya Sabha signed the motion and presented it to the speaker. Facing impeachment,
the Judge resigned by sending his resignation letter to President, with a copy to Chief Justice of India from the post
of Sikkim high court Chief Justice on 29 th July 2011 prior to the commencement of the removal proceedings.

In 2011 the Calcutta High Court Judge became the first judge to be impeached by Rajya Sabha (Upper House of the
Parliament). He was accused of misappropriating large sums of money which he received as a receiver prior to him
becoming a High Court Judge. He was also accused of misrepresenting facts in this regard to the High Court. The
committee concluded that there was a large scale diversion of funds and that such diversion was in violation of the
orders of the High Court. On 18th August 2011, Rajya Sabha passed the impeachment motion by overwhelming
majority of 189 votes. Ahead of the impeachment motion against him in the Lok Sabha on 5 & 6 September 2011,
he resigned on 1 September 2011. As a result of his resignation Lok Sabha decided to drop the impeachment
proceedings against him. On 15 Jan 2012, it became public through an RTI query that the High Court Judge would
keep getting his post – retirement benefits, even though he resigned ahead of impeachment proceedings against
him, as there are no Constitutional or statutory provisions restricting the entitlements in such a scenario. The
same was formulated in the above impeachment case of Sikkim High Court judge.

In 2015, a group of 58 Rajya Sabha MPs initiated an impeachment notice against the Gujarat High Court Judge for
his objectionable remarks on the issue of reservation. The High Court Judge while deciding a case had passed an
obscene remark stating reservation for Scheduled Castes and Scheduled Tribes to have destroyed the country and
not allowed the country to progress in the right direction. He had also commented that reservation has only
played the role of an amoeboid monster sowing seeds of discord amongst the people. However, he later deleted
the remarks from his judgment saying those were not relevant and necessary while deciding the case. The furore
quickly died down after deletion of the remark and thus the Gujarat High Court Judge managed to escape his
impeachment.

The Andhra Pradesh and Telangana Judge has faced two impeachment motions in the Rajya Sabha. The first of
which failed after 19 signatories withdrew their votes from the 61 Members who had initially voted. The second
motion was commenced when 54 members initiated impeachment proceedings against the Andhra Pradesh and
Telangana Judge for misuse of his power as a High Court Judge to victimize a Dalit Judge. The AP High Court
conducted a trail and found that the allegation against him was false and misleading. The motion of
Impeachment had failed as 9 members out of the 54 members supporting the motion of Impeachment had
withdrawn their signatures. The Bar Council of India in this scenario stated that the Members of Parliament
should have verified the facts before rushing with a notice for impeachment. The fact that they first made a
complaint and later some MPs decided to withdraw their consent clearly shows that they had not applied their
mind before signing the petition. By this act they have not only caused serious damage to the reputation of the
Judge, but equally damaged the institution of the judiciary.

Conclusion:
Through this article the writer has come to the conclusion that despite many motions being commenced there has
been no successful case of impeachment in India. No High Court and Supreme Court Judge has been removed
from his authority through the process of impeachment. Useually, the Judges who face impeachment resign
before the completion of the impeachment motion and take advantage of the situation as there is no constitutional
or statutory provision restricting the post – retirement benefits and entitlements of the judge prior to his
impeachment proceedings. The resignation also helps in prevent humiliation from public.