The stage is set for yet another probable removal proceeding (the expression “impeachment” being used in common parlance) against Justice Yashwant Verma, with the Supreme Court forwarding an in-house inquiry report to the President and the Prime Minister for appropriate action.
But it’s almost impossible to remove a judge and none has been removed since the Constitution came into force on January 26, 1950. Like a cat, an indicted Judge has nine lives to avoid being removed by a motion of removal in Parliament.
A detailed exposition of in-house enquiry procedure is outlined in the Supreme Court’s judgment in Addl. District and Sessions Judge ‘X’ versus State of MP (2015), providing a two-stage deliberation. Firstly, formation of a prima facie view as regards the veracity of the material available and if the same is found to contain serious allegations involving misconduct or impropriety, the response of the Judge concerned needs to be elicited.
Secondly, if the CJI concurs that deeper investigation is needed, a three-member committee is constituted. This committee includes two Chief Justices of High Courts (excluding the one concerned) and one High Court judge from another jurisdiction. The committee conducts its own inquiry and, upon completion, submits its findings. If the charges are found serious, it may recommend removal; otherwise, it conveys its conclusion that the charges lack substance.
Thereafter, the CJI would advise the Judge to resign or opt for voluntary retirement. If the Judge refuses, the CJI can recommend withdrawal of judicial work and forward the committee’s report to the President and the Prime Minister, thus, marking the point at which formal removal proceedings under the Constitution begin.
Mechanism for removal
Removal mechanism has its foundation in Articles 217(1)(b) and 218 of the Constitution of India. These provisions make clear that a judge can only be removed by a Presidential order following a resolution passed by Parliament, making the removal process exceptionally rigorous. The first pre-requisite is that the removal motion must be signed either by 100 Lok Sabha members or 50 Rajya Sabha members, which, if admitted, would require constitution of another three-member committee, in accordance with the Judges Inquiry Act, 1968 [JIC Committee]. This committee would frame definite charges, which along with the statement of grounds would be served on the Judge concerned, who is then given an opportunity to defend himself. This inquiry process resembles a full-fledged trial, which requires giving an opportunity to the Judge concerned to cross-examine witnesses, present evidence, and summon defence witnesses.
If the committee finds the Judge guilty of any “misbehaviour” or “incapacity”, it will submit its report to the Speaker or the Chairman of the House concerned, to be placed before the House concerned for further action. It is at this stage that the rigours and requirements of Articles 217(1)(b) and 218 of the Constitution are triggered i.e., the removal motion must be passed by a special majority in both the Houses of Parliament. If both Houses pass the motion of removal with required majority, the motion will be forwarded to the President for removal of the Judge.
A number of lifelines
What is interesting is the number of ‘lifelines’ made available to the Judge concerned to take a call to submit resignation. He gets at least two opportunities to resign at the threshold stage before the Chief Justice of the High Court concerned, first, when the allegations surface and thereafter, when the Chief Justice submits her report to the Chief Justice of India. Three more arise at the Supreme Court level: on receiving the High Court report, after constitution of the in-house committee, and when the CJI advises resignation.
A sixth opportunity is available during the pendency of proceedings before the JIC Committee; seventh, when the JIC Committee submits its adverse report to the Speaker or the Chairman; eighth, when the Speaker or the Chairman submits the report before the House concerned; and the ninth and the last opportunity occurs during the Parliamentary debate.
While the complex procedure of removal of a Judge can justifiably be defended, being essential for safeguarding the independence of judiciary, however, from the perspective of a common man, the question as to how the impropriety in the corridors of judicial temples would be regulated, continues to beg for an answer.
The writer is Senior Advocate and former ASG of India