Alan V. Avanesh and Shambhavi Moghe, Nyayshastram
Introduction
The Constitution provides necessary freedom to the judiciary which allows the Judges to make fair judgments without the influence of the executive. However, the Constitution also ensures that there would not be any kind of misbehavior from the judges.[1] The main procedure for the impeachment of judges is described in the Judges (Inquiry) Act 1968[2] and Article 124(4) of the Indian constitution[3]. In Article 124(4), it is clearly stated that a judge of the Supreme Court will be removed with an order of the President passed after an address of each house of the parliament that is supported by a majority of at least two-thirds of the overall membership of that house. This prevents the judiciary from having too much power and ensures that the judges perform their duties efficiently and in good faith.
Judges (Inquiry) Act 1968[4]
Judges (Inquiry) Act of 1968 is an Act that controls all the investigations and the proof of the misbehavior or incapacity of the judge of the Supreme Court or of the High Court and for the presentation of an address by Parliament to the President and for matters connected therewith. The procedure involved for impeaching judges in India are as follows[5]: -
1. Initiate a Motion: - A motion has to be moved by either a minimum of 100 members of the Lok Sabha or 50 members of the Rajya Sabha. The motion can then be accepted or rejected by the Speaker (Lok Sabha) or the Chairman (Rajya Sabha).
2. Formation of a Committee: - If the Speaker or the Chairman rejects the motion then the impeachment would be canceled. However, if the Speaker or the Chairman were to allow it, then a committee will be formed. There are three members on the committee. In the committee, the first member is the Chief Justice of India or any other judge of the Supreme Court, the second member is the Chief Justice or any other judge of the High Courts and the third member is a distinguished jurist. The committee will only be formed after obtaining the approval of both the houses of the Parliament. The Speaker and the Chairman will attend the committee’s proceedings.
3. Conducting an Inquiry: - The committee will then frame charges against the judge base on the previously conducted investigation. Such charge along with all the statements regarding the grounds on which each such charge is based on will be told to the judge. The judge will also be given a specific period of time to write a statement of defense regarding the same.
4. Submitting a report: - After the inquiry has been conducted the committee will either submit a report to the Speaker or the Chairman or both. If the report fails to prove that the Judge is guilty then there will be no further action and the impeachment would be canceled. However, if the report is able to prove that the judge is guilty then the House of Parliament which initiated the motion can choose to continue the motion. The motion is debated and the Judge or his representative will have the opportunity to represent his/her case. Then the motion is voted upon and if there is a minimum of a two-thirds majority in both the houses of parliament then the motion will be passed. An address will be sent to the President asking him/her to remove the judge.
Judges that had faced impeachment motions[6]
In India, only six judges have faced impeachment motions and none of them were removed from office. These judges are: -
1. V. Ramaswami[7]: - V. Ramaswami was the first judge in independent India to face the impeachment motion, was sworn in as the Chief Justice of the Punjab and Haryana High Court, on November 12, 1987.[8] He was the Chief Justice of the Punjab and Haryana High court for nearly two years from November 1987- October 1989 after which he was promoted to a judge in the Supreme Court. However, in 1990, several media reports projected his rather suspicious lifestyle which involved spending a lot of money allegedly on the “renovation” of his official residence and other personal expenses like sending his official car to Chennai for a family wedding, spending approximately 9.1 lakhs on residential telephones in just 22 months, ordering 25 silver maces for exorbitant prices, claiming expenses of Rs 76,150 for a Madras telephone, purchasing eight air conditioners, bed and bath linen worth Rs 1,79,217. On February 29th 1991,108 MPs of the opposition party sent a notice citing the 11 charges against V. Ramaswami on the basis of the audit reports given by the high court and the accountant general’s office to Rabi Ray (the Speaker at that time), requesting the judge’s removal. Apparently, many congress leaders like Rajiv Gandhi and P.V Narasimha Rao had requested Rabi Ray to dismiss the motion however, Ray decided to make his decision on the basis of the legitimacy of the given audit reports and once he was satisfied with the reports, he admitted the motion on March 12, 1991. A committee was then formed for further investigation. After the assassination of Rajiv Gandhi on May 21, 1991, the new Narasimha Rao government was of the belief that with the birth of the 10th Lok Sabha, the impeachment motion of the 9th Lok Sabha had lapsed. Hence, it was not that keen on operationalizing the inquiry committee. However, a constitution bench in Sub-Committee on Judicial Accountability vs Union of India held that the inquiry committee would survive the dissolution of the Lok Sabha. The inquiry committee concluded that V. Ramaswami was indeed guilty of office misuse and negligence in the discharge of his duties. Finally, the removal motion was taken up in the Lok Sabha on May 10, 1993. V. Ramaswami was able to defend himself with the help of his lawyer, Kapil Sibal. At the time of voting, nearly 196 members of the house voted for the motion. While no one really voted against the motion, 205 Congress MPs abstained from voting thereby preventing a two-thirds majority due to which the motion was not passed. V. Ramaswami was able to save himself from being removed from his post and on 14 February 1994, he announced his retirement.
2. P.D Dinakaran[9]: - Justice P.D Dinakaran, a former Chief Justice of the Sikkim High Court, started his career in Madras High Court. On August 28th, 2009, Dinakaran’s promotion as a judge in the Supreme Court was halted due to the various allegations levied against him, highlighting his huge assets and land acquisitions which were more than what was fixed under the Tamil Nadu land reforms. He was then transferred to the Sikkim High Court. He had sworn in as the Chief Justice of Sikkim on 9th August 2010. While facing impeachment proceedings for his judicial misconduct, Dinakaran decided to resign. He finally resigned on July 29th, 2011. On August 4th, 2011, Dinakaran wrote a letter to the law ministry requesting the withdrawal of his resignation which was rejected by the ministry.
3. Soumitra Sen[10]: - In 2009 a motion was moved by 58 members of the Rajya Sabha for the removal of Justice Soumitra Sen, a Judge in the Calcutta High Court, on grounds of misappropriation of funds and misrepresentation of facts. In March 2009, an inquiry committee was set up, which found out that the misappropriation resulted while Justice Soumitra Sen was appointed as the Receiver in the Calcutta High Court. The Calcutta High Court requires the receiver to open only one bank account and transfer funds only with prior permission. However, it was found out that Justice Soumitra Sen opened two bank accounts with ANZ Grindlays Bank and Allahabad Bank and also transferred Rs 33,22,800 to these accounts and this money was not accounted for either when he was an advocate or when he was a Judge. After he became a Judge in 2003, he did not seek permission from the Court for approval of the dealings, as required by the Court, nor did he account for the funds. Hence, the committee concluded that he was indeed guilty of “misbehavior”. In 2011 Justice Soumitra Sen resigned thereby saving himself from the impeachment motion.
4. C.V Nagarjuna Reddy[11]: - In December 2016, 61 members of the Rajya Sabha submitted a plea against C.V Nagarjuna Reddy stating that he interferes in the judicial process in several cases and also made caste threats. Later on, 21 of the 61 members withdrew their approval for the plea thereby canceling the motion. The Rajya Sabha tried to initiate a motion of impeachment against Justice Nagarjuna a second time when 54 members of the Rajya Sabha made a plea against him but 4 of 54 withdrew their support for the plea thereby canceling the motion. Hence, the members had failed twice in introducing a motion to seek the impeachment of justice Nagarjuna Reddy.
5. J.B Pardiwala[12]: - J.B Pardiwala was a judge in the Gujarat High Court. In 2017, he made remarks against reservation while hearing the sedition case against Hardik Patel.[13] He said that reservation was initially made only for ten years within which most people belonging to the backward communities will be able to develop but even after 65 years the practice of this reservation system had prevented the development in India. On hearing this about 58 MPs of the Rajya Sabha moved a motion to seek the impeachment of Justice Pardiwala. Justice Pardiwala immediately withdrew his statement due to which the motion was canceled.
6. Dipak Misra[14]: - Dipak Misra served as the 45th Chief Justice of India. On April 20th, 2018, nearly 71 MPs of the Rajya Sabha signed a plea to seek the impeachment of Dipak Misra. However, on April 24th, 2018, the Rajya Sabha chairman rejected the notice as he believed that the grounds provided in the notice were not sufficient to prove the “incapacity” or “misbehavior” of the CJI.
Conclusion
It has been interesting to note that in India, out of six motions that sought the impeachment of a judge in the higher judiciary, none of them have been successful. [15]Whenever a Judge had to face an impeachment motion, he/she could easily resign thereby saving themselves from the embarrassment of being removed from their post. Justice Sanjay Sawant, the head of the inquiry committee investigating the issue regarding the impeachment of Justice V. Ramaswami had stated that the system to remove judges was indebted, cumbersome, and heavily dependent on politicians. Hence, it is imperative that a more pragmatic approach towards the impeachment of Judges needs to be initiated and implemented so as to safeguard the interest of the Indian judiciary.
[1] Sruthi Radhakrishnan, The Hindu explains: How is the Chief Justice of India Impeached, The Hindu (07/05/2018), last seen on 30/10/2020.
[2] Act ID-196851; 1st January 1969, vide notification No. G.S.R. 35, dated the 1st of January 1969, see Gazette of India, 1969, Extraordinary, Part II, Sec. 3(i).
[3] 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 - thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
[4] FAQ on the process of impeachment of judges, PRS Legislative Research, last seen on 30/10/2020.
[5] Page 12.944-12.946 of The Judges (Inquiry) Act 1968.
[6] List of judges who faced impeachment proceedings, The Hindu (25/05/2017), last seen 30/10/2020.
[7] "Advocate recounts first-ever impeachment proceedings in Parliament". Times of India. 20 August 2011. Retrieved 27 April 2012.
[8] Sanjoy Ghose; Carpets, Bedsheets, Towels and Intrigue: The Story of Justice V.Ramaswami’s Impeachment, The wire (22/07/20), last seen 30/10/2020.
[9] "I am a victim of politics and legal system: Justice Dinakaran". The Times of India. 30 July 2011; "Dinakaran not above law: Moily". The Hindu. Chennai, India. 25 April 2010; "SC lifts justice Dinakaran's impeachment proceedings". 5 July 2011. Retrieved 15 January 2012.
[10] "Rajya Sabha Approves Impeachment of Justice Sen". 18 August 2011. Archived from the original on 31 January 2013; Soumitra Sen resigns, saves embarrassment". The Pioneer. 2 September 2011. Retrieved 16 January 2012.
[11] "Fresh Move to Impeach Justice Nagarjuna Reddy.” The Hindu. 26 May 2017; “RS MPs move please to impeach Hyderabad HC judge CV Nagarjuna Reddy.” Business Standard. 7 December 2016.
[12] “58 MPs seek impeachment proceedings against Gujarat HC judge.” The Economic Times. 18 December 2015.
[13] Rathin Das, What a U-turn, milord! Guj judge deletes quota remark to avoid impeachment, catchnews (14/02/17), last seen on 30 October 2020.
[14] Sangeeta Barooah Pisharoty, The Only Time the Opposition Pulled of a Motion Against a Sitting Judge, The wire (22/04/20), last seen 30 October 2020.
[15] Sanjay K Jha, Impeach History: 5 shots, no score, telegraph India (30/10/2018), last seen on 30 October 2020.