Explained| Impeachment Of A Sitting Judge: Procedure & Precedents

Allahabad High Court Judge, Justice Shekhar Kumar Yadav, is the subject of an impeachment motion against him in Rajya Sabha for the controversial remarks made by him against the Muslim community at an event organized by the Vishwa Hindu Parishad.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 ...

Explained| Impeachment Of A Sitting Judge: Procedure & Precedents

Anmol Kaur Bawa

Tags