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An Analysis Of The Procedure For Removal Of Judges

India being largest democracy in the world must essentially possess or demands two things which are considered to be a vital component in a democratic country like India and they are accountability and transparency which is very evident that still there remains few things in our democracy that isn't transparent and some are not made accountable.

To make them accountable and to keep a check on the different organs of our country, a concept called separation of powers was brought in to as act as a checks and balance that would help the organs to function more efficiently without misusing their power.
  But these checks or overlapping has to be limited and at the same time provide the organs with the independence they need. One such independent organ is the judiciary which as we all know is not completely independent and the other two organs that is the legislature and executive have some say over the functioning of judiciary. Moving on to the topic, the concept of procedures with regards to the removal of judges and the judiciary being independent was actually borrowed from the constitution of America.

The separation of powers in our country isn't something as the convention concept wherein it ensures water tight division between the three organs. India doesn't have a water tight compartment or division of powers but instead there has been some overlap of some organ with the functioning of another organ.

The supreme court in the case of Ram Jawaya Kapur v state of Punjab observed that the:
Indian constitution hasn't indeed recognized the doctrine of separation of power in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our constitution doesn't contemplate assumption by one organ or part of the state of function that essentially belong to another[1]

And it's not rigid as something in the constitution of America and Australia. there are overlap in both the ways, for instance the judiciary is competent to declare any law to void that is passed by the Legislature and in return the core of this project, legislature playing a vital role in removal of judges under article 124 of the Indian constitution which basically has two issues:
  1. Legislature is competent to remove any judge when they have the required majority in the House.
  2. Legislature using its majority and whip may save a judge from removal even if they are found to be guilty or some wrong doing.

The forth coming chapters will deal with these issues including the limitations or the part which I feel could be misused and have been misused in the past. It's very interesting and also shocking to know that from the time of independence, not even a single judge was removed as per article 124(4) even if there was some kind of prima facie evidence that was against the judge.

It's evident that the procedure for removal of a judge is very difficult and that was made in order to maintain the independence of judiciary and its integrity and this has narrowed the chances of removing or impeaching a judge. It is not possible to say that each and every judge would be striving to uphold justice and act in a fair manner, therefore impeachment was necessary to keep such corrupt judges out of the purview of judiciary.

And for this reason, this duty was vested with the legislature and notably there were lots of cases where impeachment procedure was initiated but none of the case succeeded and one interesting case was that of Justice V. Ramaswami that will be discussed in the next chapters and here, the loopholes that remain in the procedure to remove judges was used and then he was acquitted even after evidence that supported him of misappropriating funds.

We will also be dealing with how the judges have used or be using these loopholes in order to evade prosecution if they are impeached. To being with the text of the provision, the grounds are limited to only proven misbehaviour or incapacity for the removal of judges of High Court and Supreme Court[2]. And major drawback is the lack of no proper definition of the terms proven misbehaviour and incapacity in the Indian Constitution and Judges (Inquiry) Act, 1968.

One contention is that the judges should also be held accountable since India being the largest democracy and the any sort of misuse of power should not be tolerated. And the next contention is basically the role of legislature in the procedure of removal and this part of an independent organ influenced by some other organ has resulted in injustice as mentioned above and these two issues must be addressed immediately.

Therefore it has to be made accountable and the same time that role shouldn't be vested with another organ that will in turn damage the reliability of judiciary. The forthcoming chapters will basically deal with those limitation in the provisions with regards to the removal of judges.

Misbehaviour

Under the constitution of India, Article 124(4) deals with the procedure for removal of judges and it lays down two grounds for the removal and they are Proven misbehaviour or incapacity as we already know. Article 124(4) says that,

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.[3]

And this mentions the two grounds and the procedure for removal. And it is evident as I have mentioned above that the duty of removal is vested with the legislature and it says that a judge can be impeached when the houses of parliament vote for it with a two third majority which if possible will have two repercussions, i) a guilty judge can be acquitted or ii) an innocent judge who seems to be against the government or its policies can be impeached through this procedure. Therefore, the duty vested with the parliament can result as I have mentioned above and followed by that, the lack of proper definition for the term proved misbehaviour and incapacity seems to be very vague and what constitutes such misbehaviour is difficult to find when no proper definition is given and this could be used in cases where any judge can be drawn into this.

This issue revolves around the definition of the grounds and shockingly its nowhere defined in the Indian Constitution and the Judges (Inquiry) Act, 1986. And when referred to a normal English dictionary, the meaning of the word misbehaviour is basically to behave badly but what constitutes bad and which kind of behaviour seems to be very ambiguous and this loophole is prone to be misused. But in Subcommittee on Judicial Accountability v. Union of India, the term misbehaviour was defined and it meant the situations,
As the case of conviction upon an indictment for any infamous offence of such a nature as to render the person unfit to exercise the office[4]

And this definition by the court erupts another question on what constitutes an infamous offence which would render them unfit. This seems to be a subjective question and it's up to the parliament to decide on this issue if such judge's act were one of them. And the same was questioned or the issue was raised by Justice Ramaswami in his letter to the speaker of Lok Sabha wherein he mentions that committee finds that he could have purchased silver plated maces. He questions this report by saying that Can these kind of act ever be misbehaviour as contemplated under Article 124(4) of the Constitution?

Therefore with regards to this first issue of the definition, this ambiguity has to be rectified and clearly defined so that no such question arises and misuse of these vague grounds can be avoided. The parliament has to amend it in a way that removes all the ambiguities and makes sure of the grounds under which judges can be impeached. There should be no scope to keep the grounds as wide as this and any acts as mentioned above can be managed to get under the ambit of the said grounds under the provision of Indian constitution. Therefore, a clear-cut, non-ambiguous grounds has to be inserted through an amendment so that any sort of loophole can be taken out or removed that would result in fair use of the provision.

Parliaments Role

The next issue after the ambiguity with regards to the grounds of impeachment is the role of an organ other than the judiciary itself in its functioning. As I have mentioned above regarding the provision in the constitution of India, article 124(4) says something about a condition with which such judge can be impeached. For this purpose, we refer to both the Indian constitution and the judges (Inquiry) Act, which together lays the rules of such removal. But the judges (Inquiry) Act mentions in details about the procedure on how this removal must be taken forward.

It says that after the issue has been addressed in the houses of parliament, the speaker may form a committee consisting the Chief justice or other judges of the Supreme Court, Chief justice of High Courts, and one eminent jurist. This initiation of impeachment procedure is up to the parliament wherein it just need a motion with not less than 50 members in Rajya Sabha and not less than 100 members in Lok Sabha. And therefore, initiating the procedure would be simple since the ruling government has these numbers which are more than enough.

And after the committee submits its report to the houses of parliament, the decision is to be taken by the members of the house with two third majority present and voting. The possibility is higher that the ruling government having the two third majority themselves or through their electoral alliances. This concept is called the Whip and this is a game changer when it comes to removal of judges.

A. The Whip

Whip is basically a procedure that would make sure the members of the party and the parties aligned with them to follow the orders of the party even if they doesn't support it personally, each and every one is obliged to follow the directions given to them according to the policy of the party.

Paragraph 2 of the 10th schedule in the constitution of India deals with disqualification on grounds of defection and it says that a member shall be disqualified,
If he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party[5]

And this would bind the members together and keep them under the apprehension of being disqualified if they do anything contrary to what they were said to do. And this is exactly what they term as the concept of whip and through this the ruling party which has formed the government with the required mandate can use this whip to pass any Bill or anything in their favour. In case of removal of judges, it is left to the parliament after the committee has given their report to the houses of parliament.

The houses after this, through their whip is competent to decide anything on their favour if they have the required number present and voting. This could have two consequences as I have mentioned earlier that even after the committee finds the judge guilty, the parliament I competent to acquit them with a two third majority or contrary to it, the parliament can initiate a proceeding against someone using the vague grounds but notably there remains a committee that has to give its report.

Therefore, one serious concern over here is with regards to the cases where the judges are found to be guilty by the committee, but the parliament turn this decision upside down with their majority in hand using the concept called whip and the same thing happened in the case of Justice Ramaswami wherein
The move had to be supported by two-thirds the members present to succeed. All those who voted for impeachment were from the Opposition, while the Congress (I) adopted the strategy of abstaining. The Congress (I) camp decided there were good reasons for sabotaging the impeachment motion.[6]

And motion didn't get the required majority because of the whip of congress party even after the committee found him guilty for misappropriation of funds. And other justices criticise this act and they called the parliament as a fish market since just by using their whip, they left the perpetrator without any punishment or consequences. And many of these provisions need to be amended in order to ensure fairness in everything.

When the parliament deals with a matter like this, it is not a simple thing but instead a matter of public interest and the parliament must decide based on its merit rather than the party to which such judges belong. In the case of Ramaswami, the congress took that stand just because he was appointed by the congress government and if he was to be impeached, that would create a black mark on the name of congress.

One of the cases where the judge was drawn into this impeachment procedure just because of something he something he mentioned in a judgement. In Hardik Bharatbhai Patel v. State of Gujarat And Ors.[7]a judge of the Gujrat High court, Justice Pardiwala went into an issue for making a statement in this judgment mentioned above wherein he supposedly spoke about some caste issue and contended that he has made some casteist remarks which he mentioned against some sort of reservation policy in that judgement. As a result of this statement, 58 MPs in the Upper House i.e. Rajya Sabha initiated an impeachment procedure before the chairman of the Rajya Sabha to impeach him just based on the statement he has made in one of his judgement and alleged it to be an unconstitutional remarks against the reservation in matter. But this issue got resolved just after the judge agreed to remove that remark from his statement in the judgement. Therefore, I see this as the best example on how the parliament is competent to initiate an impeachment procedure against the judge of the Supreme Court or High court which I think to be baseless and this is done with the help of the ambiguous and vague grounds for such removal coupled with the power of ruling party in the parliament which result in any arbitrary decisions.

Judge's Behaviour During Impeachment Procedure

A. Transfer Of Judges

There is a conventional solution or step taken towards the judges who are facing any kind of allegations and that is not something that would bar them from their judicial work but instead the judges are always seen to be transferred when any such allegations or charges arise. But the issue over here is whether such transfers are reasonable when the judges are facing any allegations.

And there are many instances where the judges when they alleged of indulging in any sorts of corruption, they are transferred to some other High courts. The question is how the corruption could be removed when the person alleged of doing the corruption is transferred by the collegium and its policy. I feel that this act of transferring instead of some sort of bar on their work amounts to injustice and needs to be addressed.

For instance, when any judge is alleged of some wrong doing, he is presumed to be unfit to serve at a particular High Court but do they become perfect just because they are transferred to some other High Court. Instead of putting a bar on their work and sought a solution, the collegium just shifts the place of work. And in fact the constituent assembly and its members were very determined to make this organ that is judiciary an independent organ just for the sake of public interest, so that the judges would be able to fulfil or perform their duty in an efficient manner. And Dr. B.R. Ambedakar said that the:
There can be no difference of opinion in the House that our Judiciary must be both independent of the executive and must also be competent in itself. And the question is how these two objects can be secured.

This constituent assembly was of the view that the immunity of the judges was not for the protection of the malicious or corrupt Judge but for the public, the term independence only means that Judges should be at liberty to exercise their function with independence and without fear of consequences.

But still transferring alone wouldn't serve the purpose and that would inflict a sense of lethargy with the judges and some sort serious measures are necessary in order to ensure them to be fair. Measures such as suspension must be taken up wherein the judges who seems to be indulging in any sort offences must be inquired into and just transferring them would not suffice.

B. Resignation As A Defence

The best way to escape from the impeachment procedure is just to reign from being a judge and that it, the allegations, charges and the impeachment procedure vanishes. There were numerous instances of judges resigning from their office just before the day of passing the motion in the parliament or just before the day of inquiry by the committee consisting three members. In the case of Justice Dinakaran, when he was the chief justice of the Sikkim high court, resigned just a day before the impeachment procedure was to be initiated against him.

In the past, Parliament has taken up impeachment motions only twice: in 1993 against Justice V. Ramaswami, which failed, and in 2011 against Justice Soumitra Sen, who resigned after the Rajya Sabha adopted the motion for his removal and sent it to the Lok Sabha to complete the process.[8] And in the case of Justice Dinakaran, the impeachment proceeding which was initiated under the Judges (Inquiry) Act, 1886 was vanished and was left aside just because of his resignation from his office and this is one of the major loophole which must be addressed since all the judges who are found to be guilty and against whom prima facie evidence is there to support such allegation are seen to use this loophole of resignation to escape from being punished for the offence they have done.

Most of the cases were corruption charges, and just because they resign from their office, they were set free and all the procedures that they initiated becomes useless. This serious loophole must be addressed and some check has to be kept or else it has to be made clear that even if the judges resign from their offices, the trial that was supposed to happen wouldn't stop.

Conclusion
After a proper perusal of the provision with regards to the procedure for removal of judges and its critical analysis, it is evident that the provisions for removal of judges enshrined under article 124(4) of the Indian constitution and the judges (Inquiry) Act has many limitations and ambiguities which were addressed in the previous chapters.

When we look into both these provisions, the first issue is with regards to the ground for removal of judges wherein a judge can be impeached on proved misbehaviour or incapacity and these grounds are very vague and ambiguous. This ambiguity may result in a situation wherein any act could be could be described as a misbehaviour since this term is subjective till such term is defined clearly. Therefore, the first amendment or clarification must be with regards to the grounds of removal and it has to be defined clearly devoid of any ambiguities.

And the parliament plays a game changing role in the functioning of judiciary which is conceived as independent but in fact judiciary is evidently influenced by various things including the parliament and the first instance is the concept of whip which has played a very important role in the past.

The parliament could take the defence of anti-defection law under the 10th schedule of the Indian Constitution wherein it mandates the members to obey the directions and orders of the party and failing to obey would result in disqualification. The apprehension of this would result in the concept whip and the whole population of a political party would take the same stance and no single member of the said faction would be allowed to express his own views over that issue because of the provision with regards to anti-defection.

This acts as a major influence over the impeachment procedure since a party with majority can turn any decision upside down and one instance was the case of Justice V. Ramaswami wherein the motion failed because of the whip of congress party.

The behaviour of the collegium and the judges in the issue was also dealt in the previous chapters and we found that the judges who were pointed with allegation of some kind an offence, didn't result in any serious punishment but instead one common solution, they resorted to was that the judges were transferred immediately when any allegations erupt against them. I think this act of transferring is totally baseless since instead of a serious punishment like suspension or inquiry, a transfer would be very meaningless as only the place of work is shifted and no proper solution is sought.

Therefore, this conventional way of transferring the judges should be addressed and proper inquiry and strict actions should be taken. The next issue we addressed was the judges resigning their officers when the impeachment procedure was yet to be concluded.

We dealt with many cases of resignation wherein the judges tend to resign just a day before the commencement of impeachment procedure or the initiation of inquiry committee or even before the motion was about to be passed in the houses of parliament. The reason for such behaviour was just to evade the charges and when they leave the office, any kind of impeachment procedure that was happening at that point of time just goes away and the judges escapes from the trial.

Therefore, laws has be amended and made into a stricter one which has to ensure that even if the judges leave their officer, those charges against them remains and that will be inquired into. When this kind of provision is added and that mandates any allegations to be looked into whatever the circumstances could be, the chances of judges resigning from their offices would reduce and in turn promote justice.

After critically analysing all these limitations, there are certain ways through which there limitations can be amended and the loopholes can be narrowed down. First thing being the amended that must define the grounds properly and followed by that is the role of parliament in the removal. After looking at various instances of misuse of the provisions enshrined under the constitution, the amount of influence parliament has over the judiciary has to be questioned or in fact amended. For this issue, I propose a different mechanism for the removal of judges.

This process instead of being vested with the parliament can be given to a body like Lokpal just for the purpose of impeachment of a judge. Unfortunately, Lokpal being a body which is even more complicated filled with ambiguities and loopholes.

The Lokpal also has the same kind of influence of parliament in its functioning and for instance, in order to initiate an inquiry against the Prime Minister, it needs a two third majority of the members and one notable thing is the influence of the ruling party in the selection of members. Therefore, a body must be created or the Lokpal itself has to be amended to make it independent without any kind of external influence with a wider scope to entertain impeachment procedures.

And the parliament's role can be restricted just for the purpose of initiating the impeachment procedure and the remaining procedures that include the inquiry and decisions based on the merit will be bestowed with such independent body. Therefore, the parliament can be allowed to initiate the impeachment procedure and that has to be in consonance with the grounds of such removal which in turn has to be defined clearly devoid of any ambiguities. Introducing an independent body like Lokpal would reduce the role of parliament the games they play with the majority they have or the whip they possess and use to make any decision in their favour.

And lastly during the impeachment procedure in the independent body, if the judges resign from their office, that must not have any consequences or repercussions on the charges that were alleged against them. For instance, if a judge was sought to be impeached for his involvement in corruption, resignation of the said judge shouldn't clear him of any charges and that the independent body must look into it even after their resignation and property decision has to be given. This may not be the best solution, but with proper changes and implementation, the major loopholes that were dealt in the previous chapters could be eliminated and the independence of judiciary can be upheld to some extent.

End-Notes:
  1. Rai Sahib Ram Jawaya Kapur And Ors. vs The State Of Punjab, 1955 2 SCR 225
  2. India Const. art.124, cl.4.
  3. Id.
  4. Subcommittee on Judicial Accountability v. Union of India, 1991 AIR 1598.
  5. India Const. 10th schedule
  6. Z.Agha, Justice V. Ramaswami survives impeachment motion due to abstention of Congress(I) MPs, India Today, issued on May 31, 1993.
  7. Hardik Bharatbhai Patel v. State of Gujarat And Ors, Criminal Misc. Application (For Quashing & Set Aside FIR/order) No. 19858 of 2015.
  8. Quota row: Impeachment move against judge, The Hindu, (March 24, 2016), available at: https://www.thehindu.com/news/national/quota-row-impeachment-move-against-judge/article8006034.ece, Accessed on 12-05-2021

    Award Winning Article Is Written By: Mr.Varunkarthick K
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