Explained| Impeachment Of A Sitting Judge: Procedure & Precedents

Even before the moving of the impeachment motion by 55 MPs on December 13, the Supreme Court took note of the media coverage of Justice Yadav's speech and called for its details from the Allahabad High Court.

With the stage set for the Parliament to now take things forward, let's understand the essence, procedure, and history of impeachment of sitting Supreme Court and High Court Judges.

'Impeachment' in simple terms refers to the parliamentary proceedings to examine the alleged misconduct or incapacity by a public servant.

The legal framework for impeachment of a Supreme Court or High Court judge finds a starting point under Articles 124 and 217 of the Constitution of India. A detailed procedure for removal is chalked out under the Judges Inquiry Act 1968.

Articles 124(4) and (5) provide that a Supreme Court judge can be removed from his office only through impeachment by the Parliament on the proven grounds of misbehaviour or incapacity. The impeachment resolution shall be passed by a 'special majority' of 2/3rd after a thorough inquiry into the allegations against the Judge.

“(4) 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 a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity”

“(5)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 under clause (4)”

Article 217(1) (b) provides a similar procedure and grounds for impeachment as under Article 124. It states - “a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court”

What Is Meant By 'Proven Incapacity' And Misconduct'?

The terms "proved misbehaviour or incapacity", which are also the only two grounds for impeachment of a sitting Supreme Court or High Court judge, have been interpreted by the Apex Court as follows :

Proven Incapacity: means when the judge is unable to discharge his duties due to physical or mental challenges.

Proved Misbehaviour: In C. Ravichandran Iyer vs Justice A.M. Bhattacharjee & Ors, the Supreme Court explained that misconduct would amount to any such behaviour which undermines the integrity and independence of a judge or judiciary. Such behaviour would include corruption, sexual harassment, financial misconduct etc. Here the Court was considering a PIL seeking a CBI investigation into the alleged misconduct of the then Bombay High Court Chief Justice, Justice Bhattacharjee.

The bench here adopted the above observation from the decision in M Krishna Swami v. Union of India, which stated :

“Wilful abuse of judicial office, wilful misconduct in the office, corruption, lack of integrity, or any other offence involving moral turpitude would be misbehaviour. Misconduct implies actuation of some degree of mens rea by the doer. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform the judicial duties of the judge or wilful abuse of the office dolus malus would be misbehaviour.”

“Misbehaviour would extend to conduct of the Judge in or beyond the execution of judicial office. Even administrative actions or omissions too need accompaniment of mens rea. The holder of the office of the judge of the Supreme Court or the High Court should, therefore, be above the conduct of ordinary mortals in the society.”

In Krishna Swami's Case, the Court was considering the challenge against the initiation of impeachment proceedings against then-Supreme Court Judge, Justice V. Ramaswami.

A smilar decision was given in K Veeraswami v Union of India which held that impeachment could be initiated for corruption by judges but such claims are required to be backed by credible evidence. The Court in this case was dealing with the legal issue of whether Supreme Court / High Court Judges would come under the ambit of the Prevention of Corruption Act 1947 as 'public servant'.

Notably, while the Constitution does not define the above terms, the Judges (Inquiry) Bill, 2006 defined 'misbehaviour' as wilful or persistent conduct which brings dishonour or disrepute to the judiciary; or wilful or persistent failure to perform the duties of a Judge; or wilful abuse of judicial office, corruption, lack of integrity; or committing an offence involving moral turpitude; and includes violation of Code of Conduct;

While 'incapacity' means “physical or mental incapacity which is or is likely to be of a permanent character”

In 2010, the Judicial Standards and Accountability Bill was initiated which sought to widen the meaning of 'misbehaviour' to include the act of delivering judgments for 'collateral or extraneous reasons' constituting 'lack of integrity'. It also brought into the ambit the wilful misrepresentation or suppression of the declaration of assets.

However, the above Bill lapsed without passing.

What Are The Steps For Impeaching A Judge?

The main procedure for the impeachment is detailed under S.3 of the Judges Inquiry Act 1968. Let's understand step-wise:

1. Initiating Motion For Impeachment- the motion can be introduced in either house of the Parliament. Before the Lok Sabha, the motion needs to be signed by at least 100 members. If the motion is moved in Rajya Sabha, 50 members are necessary to sign the initiation. The motion must be based on clear allegations of misbehavior or incapacity.

2. Presentation Of Motion - After the signing of the motion, it is introduced in the house where it is signed. The motion must expressly state the charges or grounds for impeaching the judge.

3. Three Member-Committee Inquiry - if the motion is admitted, it is referred to a committee of three members for conducting a detailed inquiry against the alleged misconduct or incapacity of the judge including a thorough examination of evidence and witnesses. The committee would be composed of (a) a Supreme Court Judge ( usually the CJI); (b) a Chief Justice of a High Court and(c) one shall be a person who is, in the opinion of the Speaker/Chairman, a distinguished jurist. If the inquiry finds any valid material related to the charges alleged against the judge, it prepares a report upon the same and tables it for parliamentary discussion.

4. Parliamentary Debate And Voting - The inquiry report on submission to both houses of the Parliament is subjected to discussion and voting. Notably, the resolution must be passed by a 'Special Majority' which mandates (a) a majority of the total members of each house and (b)a 2/3rd majority of the members present and voting in each of the houses. Here the judge undergoing impeachment is also given a fair chance to represent his stand before the Parliament.

5. Presidential Order Of Judge's Dismissal- after the impeachment resolution is passed in both houses of the Parliament, the concerned judge is officially removed from his judicial position by way of a formal order passed by the President of India.

Impeachments InThe Past : Failed attempts

Notably, in the history of independent India, impeachment against a sitting Supreme Court or High Court Judge has been initiated or attempted to be initiated formally only 4 times.

1. Justice V Ramaswami (1993) - Justice Ramaswami was the first Supreme Court Judge against whom a motion for impeachment was initiated. Justice Ramaswami was charged with wilful and gross misuse of office, especially of financial misuse of public funds for his personal 'extravagance'. However, the impeachment motion introduced in Lok Sabha failed as it fell short of the 2/3rd majority requirement. Notably, only 196 Members of Parliament (MPs) in Opposition then voted in favour of impeaching.

2. Justice Soumitra Sen (2011) - The first impeachment motion moved before the Rajya Sabha was in Justice Sen's case. Justice Sen from the Calcutta High Court was accused of (1) misappropriation of funds which he received in the capacity of High Court-appointed receiver in 1984 and (2) misrepresentation of facts with regards to the misappropriation of funds. Notably, 58 MPs of Rajya Sabha had moved the impeachment motion. Justice Sen however resigned before the impeachment resolution could be voted before the Lok Sabha after the Upper House already voted in favour of his impeachment.

3. Justice JB Pardiwala (2015)- Justice Pardiwala who is presently serving as a Supreme Court Judge faced an impeachment attempt when he was in Gujarat High Court in 2015. An impeachment petition was initiated by 58 MPs in Rajya Sabha, taking objection to Justice Pardiwala's observations relating to reservations in a criminal case. Justice Pardiwala was dealing with a criminal petition seeking the quashing of sedition charges by Patidar Anamat Andolan Samiti (PAAS) convener Hardik Patel. While setting aside the charges, he observed that the two things that have not allowed the Country to progress are reservations and corruption. However, the remarks were later expunged from the order.

4. Justice CV Nagarjuna Reddy (2017) - 61 Rajya Sabha MPs had moved the motion for impeachment against Justice Reddy of the Andhra Pradesh/Telangana High Court. Justice Reddy was alleged of misconduct for (1) misbehaving with a dalit judge; (2) disproportionate income and non-disclosure of assets and liabilities and (3) misconduct as an advocate. The motion to impeach failed twice before the Rajyasabha as both times, signatories to the petition withdrew their support. In the first attempt 19 out of the 61 signatories withdrew support, while in the second attempt, 9 out of 54 signatories backed out.

Notably, in 2018 and 2011, two other judges fell short of facing formal impeachment. In 2011, then Chief Justice of Sikkim High Court, Justice PD Dinakaran resigned before impeachment could be initiated against him. Justice Dinakaran was alleged of corruption, land grabbing and abuse of judicial office.

When the Rajya Sabha appointed a three-member committee to inquire into the charges of misconduct, Justice Dinkaran resigned before the Committee's probe commenced. The Supreme Court in April 2011 had also stayed the committee's probe upon a plea filed by Justice Dinakaran alleging the possibility of bias by senior advocate PP Rao, one of the members appointed to the committee. In its order, the Apex Court noted that while the plea seemed as an attempt to delay the inquiry, it allowed the replacement of Rao with another jurist.

In 2018, a few opposition MPs of the Rajya Sabha submitted a motion to impeach then-CJI Dipak Misra based on allegations of misconduct in relation to the Medical College Bribery case, abuse of powers of the master of roster, etc. Rajya Sabha Chairman Venkaiah Naidu rejected the motion on the ground that there was no "proved misbehaviour."

Two MPs then challenged the rejection before the CJI. The petition was listed before a five judges bench of Justices Sikri, Bobde, Ramana, Arun Mishra and A K Goel.

Senior Counsel Kapil Sibal, who appeared for the petitioners, objected to the fact that a five-member bench was hearing the petition for the first instance instead of a two-member bench. Sibal insisted on getting a copy of the administrative order constituting the bench. The SC declined to accede to the request, which led to Sibal withdrawing the petition.