‘Impeachment of judge only on proven misbehaviour’
Why is the process of impeachment of a judge the subject of debate now?
Chief Justice of India (CJI) K G Balakrishnan recommended the removal of Calcutta High Court judge Soumitra Sen to the government at the beginning of August. The judge is accused of having been involved in financial misappropriation before he was appointed as a judge. This recommendation has revived the debate over the cumbersome process for impeachment as laid down in the Constitution.
What is the process for impeachment?
Article 124(4) of the Constitution provides for the removal of a judge only on the ground of proved misbehaviour or incapacity. Under the Constitution, impeachment is the only way of removing a high court or Supreme Court judge. The procedure is laid out in the Judges Inquiry Act, 1968. According to the Act, a complaint against a judge has to be made through a resolution by 100 Lok Sabha MPs or 50 Rajya Sabha MPs. These MPs have to go through the complaint and if they are satisfied they can submit a memoramdum to the Lok Sabha Speaker or the Rajya Sabha chairman. The Speaker or chairman, after acquiring the sense of the House, has to constitute a three-member inquiry committee comprising two judges of the Supreme Court and a jury to examine the complaint and to determine if a case is established prima facie. It can also get the complaint investigated through different agencies and make recommendations. These recommendations have to be debated in both Houses of Parliament in the same session. If only one House considers the matter and it remains pending in the other House in that session, the resolution will fall through. It will then have to be brought in afresh in the next session. Thus, the resolution has to be passed by two-third majority in both Houses in the same session. Only then can the resolution be sent to the President who will then order removal of the judge.
Why is it said to be almost impossible to impeach a judge?
It is difficult to get a large number of MPs to sign the impeachment motion unless there is absolute documentary evidence of the judge’s guilt, which in most cases is not possible unless some investigative agency has investigated the charges and collected the evidence. Since impeachment requires two-thirds majority in Parliament, mustering the numbers necessary for impeachment has become virtually impossible. The problem of judicial accountability has been complicated further by the Supreme Court’s judgement in the Veeraswami case, in which it declared that no judge of the high court or Supreme Court could even be subject to investigation in any criminal offence of corruption or otherwise, unless one obtains prior written consent of the CJI. Since this judgement, no sitting judge has been subject to even investigation despite several complaints of corruption in the judiciary. The police cannot approach the CJI for permission to investigate unless they have clinching evidence and this they cannot collect unless they investigate, leading to a catch-22 situation.
What is the history of impeachment in India?
No judge has ever been impeached. The only exception was the case of justice V Ramaswami who faced impeachment in 1991, an attempt that failed due to the absence of a political consensus. A large number of Congress MPs abstained from voting, thus defeating the impeachment motion. The MP who had moved the impeachment motion against Justice Ramaswamy is the current speaker, Somnath Chatterjee.
How are errant judges disciplined in the absence of the option of impeachment?
The Supreme Court has transferred judges for errant behaviour from one high court to another to discipline them, though the wisdom of this method of foisting a tainted judge on the litigants of another high court has come in for much criticism. In 1997, the Supreme Court passed two resolutions establishing in-house procedures for examining any complaints against a judge. By these resolutions, the CJI and two colleagues are to examine the charges against a judge and if found guilty have to proceed against him through a process other than impeachment.