Judging the Judges

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.

How a Sitting Judge Can Be Removed From Office?

• The Indian Constitution provides that a judge can be removed from office only by an order of the President.
  • The process of impeachment of a judge of the Supreme Court is laid down in Article 124(4) of the Constitution of India.
  • Article 218 says the same provisions shall apply in relation to a judge of the High Court.
• However, this drastic step is not taken lightly. The removal process is designed to ensure judicial independence while also maintaining accountability.
• The process is outlined in the Judges Inquiry Act, 1968.

Key Steps in the Removal Process

• Initiation of the Impeachment Motion: The process can start in either house of Parliament.
  • For the Lok Sabha, at least 100 members must sign a notice.
  • For the Rajya Sabha, at least 50 members must sign a notice.
    • Once the notice is submitted, the Speaker (for Lok Sabha) or the Chairman (for Rajya Sabha) examines the complaint and decides whether to admit the motion.
  • Formation of an Investigatory Committee: If the motion is admitted, a three-member committee is formed. This committee is made up of:
    • A judge from the Supreme Court
    • The Chief Justice of a High Court
    • A distinguished Jurist
  • This panel investigates the charges and frames the specific allegations against the judge. A copy of these charges is then sent to the accused judge, who is given an opportunity to present a written defence.
• Review and Debate in Parliament: After the committee completes its investigation, it submits a report to the Speaker or Chairman. The report is then discussed in the respective house of Parliament. For the motion to pass, it must be adopted by:
  • A majority of the total membership of the house, and
  • At least two-thirds of the members present and voting.
• Once one house passes the motion, it is sent to the other house for consideration.

• Final Decision by the President: If both houses of Parliament adopt the motion, the final step is for the President to issue an order removing the judge from office.

What is the In-House Inquiry Process?

Before a judge faces impeachment proceedings in Parliament, there is an internal or "in-house" inquiry process to address allegations of misconduct.

• Initial Complaint and Decision: When a complaint is received, the Chief Justice of India (CJI) first decides if further investigation is necessary. The accused judge is asked for a response, and the Chief Justice of the respective High Court is required to submit a report.
• Formation of a Probe Committee: If the complaint warrants further investigation, the CJI may set up a three-member panel.
  • For a regular High Court judge, the panel usually comprises:
    • Two Chief Justices (CJs) from other High Courts,
    • One judge from a High Court.
  • For a High Court Chief Justice, the panel includes:
    • One Supreme Court judge and two High Court Chief Justices.
  • For a Supreme Court judge, the panel consists of three Supreme Court judges.
• Investigation and Recommendations: The panel conducts a detailed inquiry and prepares a report. If the panel finds that the judge’s conduct merits removal, the CJI can advise the judge to resign.
  • If the judge refuse to resign, the CJI has the authority to:
    • Remove the judge from handling judicial duties,
    • Inform the President and the Prime Minister, thereby triggering formal impeachment proceedings.
  • If the alleged misconduct is less serious, the CJI may choose to issue advice or a warning to the judge.

Why This Process Matters?

• Judicial Independence vs. Accountability: The removal process is deliberately stringent to ensure that judges can perform their duties without fear of political retribution, while still providing a mechanism to remove those who commit serious misconduct.
• Checks and Balances: By involving multiple branches of government—the judiciary (through the CJI and probe committees) and the legislature (through Parliament)—the process ensures that no single entity has unchecked power over a judge’s tenure.
  • Unlike politicians, most judges are not legally required to disclose their assets, contributing to low transparency.
• Public Confidence: A transparent and fair process is crucial for maintaining public trust in the judicial system, especially when high-profile cases raise concerns over integrity and accountability.

How the Indian Judiciary Protects Its Interests?

• Kesavananda Bharati vs. State of Kerala (1973) challenged Kerala’s land reform that restricted religious institutions’ land holdings.
  • Outcome: Established the "basic structure" doctrine, limiting Parliament’s power to amend core constitutional features, thereby safeguarding judicial independence.
• K. Veeraswami vs. Union of India (1991): Former Chief Justice K. Veeraswami contested criminal charges under the Prevention of Corruption Act.
  • Outcome: Ruled that Supreme Court and High Court judges, as “public servants,” require prior sanction before prosecution, protecting them from politically motivated charges.
• Supreme Court Advocates-on-Record Association vs. Union of India (1993) – Birth of the Collegium System: A dispute over judicial appointments led to a challenge against executive control.
  • Outcome: The Supreme Court redefined "consultation" as "concurrence," establishing the collegium system where senior judges, led by the Chief Justice of India, hold the final say on appointments.
• Judicial Standards and Accountability Bill (2010) proposed to require judges to disclose assets and set up oversight committees.
  • Outcome: Faced strong resistance from within the judiciary; although passed in the Lok Sabha, it stalled in Parliament due to concerns over judicial independence.
• NJAC Case – Supreme Court Advocates-on-Record Association vs. Union of India (2015): The NJAC aimed to replace the collegium system with a commission involving executive and legislative members.
  • Outcome: The Supreme Court struck down the NJAC as unconstitutional, reaffirming the collegium system to protect judicial autonomy.
• Justice CS Karnan vs. Supreme Court of India (2017): Justice CS Karnan was imprisoned after making controversial remarks against fellow judges.
  • Outcome: Highlighted internal disciplinary measures within the judiciary, though critics argued it served to shield the institution from external accountability.