What is the process for removing a judge? | explained

For representative purposes. | Photo credit: iStockphoto

Story so far: 55 MPs of the Rajya Sabha have submitted a resolution to remove Allahabad High Court Judge Shekhar Kumar Yadav as the Chairman of the Rajya Sabha.

What is the removal process?

Article 124 and 217 of the Constitution provide for the removal of judges of the Supreme Court/High Court by the President on the basis of ‘proven misconduct’ or ‘incompetence’ after a resolution is passed by the majority of each House of Parliament. A majority of the total number of members of that house and at least two-thirds of the members of that house present and vote in the same session (special majority). The Constitution does not define the terms ‘proved abuse’ or ‘incapacity’. In various cases, the Supreme Court has ruled that intentional misconduct in office, corruption, lack of honesty or any other crime involving moral degradation is misconduct. Disability here means a medical condition which may include physical or mental disability.

The Judges (Enquiry) Act, 1968 provides a detailed procedure for removal. It provides that at least 50 members in the Rajya Sabha and 100 members in the Lok Sabha must sign the notice of removal motion. The Chairman or Speaker may accept or reject the proposal after due consideration and consultation. In case of admission, a three-member committee consisting of Supreme Court/High Court judges and distinguished judges will be constituted. If the committee, after inquiry, clears the judge of any misconduct or incapacity, the pending motion shall not be carried forward. If found to be suffering from malpractice or incompetence, the report of the committee will be placed in the House of Parliament and then the resolution will have to be passed by a special majority.

What is the current problem?

Speaking at a program organized by Vishwa Hindu Parishad, Judge Yadav made communal accusations. He said that the country will run according to the wishes of the majority. The ‘restoration of values ​​of judicial life’ adopted by the Supreme Court in 1997 and followed by all High Courts, the behavior and conduct of the members of the High Judiciary should reaffirm the public’s faith in the impartiality of the Judiciary. Judges shall not perform any act or commission inconsistent with the high office they hold. Notably, the Judges (Investigation) Bill, 2006, although not passed by Parliament, defined ‘misconduct’ to include breach of the Code of Conduct for Judges. The Bill proposes to impose ‘minor measures’ such as issuing warnings, public or private censure, withdrawal of judicial duties for a limited time for misconduct not warranting removal.

What is needed?

Blackstone’s ratio in criminal jurisprudence ‘it is better that ten guilty escape than one innocent suffer’ can also be applied to the removal of judges. Due to the strict process that requires a special majority in both houses, the judge could not be removed even after the investigation committee found that he had committed misconduct. Yet it is necessary to protect the independence of judges in the discharge of their duties. The Speaker of the Rajya Sabha, against whom a notice of motion to remove himself has been filed, is unlikely to accept the current motion. The Supreme Court has issued a notice seeking details of the controversial speech made by Judge Yadav. The judge is likely to appear before the Supreme Court collegium to explain his stand. It is important for judges to show their behavior towards the high constitutional position they hold.

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