New Delhi: Sitting Allahabad High Court judge Shekhar Kumar Yadav has drawn severe criticism from the legal fraternity for his controversial remarks about Muslims, with many members demanding his removal.
The Supreme Court Tuesday took swift note of news reports highlighting Justice Yadav’s remarks at an event organised by right-wing organisation Vishwa Hindu Parishad’s (VHP’s) legal cell Sunday, and sought more details about it.
The statement issued by the top court in this regard, however, did not clarify whether the court’s action was part of an in-house inquiry procedure that envisages a process to deal with allegations against a judge.
The judge’s participation at the VHP-organised public function within the HC premises and the course of events that have followed has once again put the spotlight on the much talked about mechanism to initiate disciplinary action against a judge or remove one.
Under the existing scenario, there is one in-house procedure, devised by the judiciary itself, to penalise a judge who is found guilty of misconduct. Apart from this, the Judges (Inquiry) Act, 1968, offers a legal prescription to remove a judge.
Article 124 (4) of the Constitution conjoined with the Judges (Inquiry) Act contemplate removal of a judge found incapable of continuing in office. Both have been framed with the objective of ensuring independence of the judiciary, as they keep out the executive from having a say when it comes to judicial discipline.
Incidentally, neither the in-house mechanism nor the statutory framework define the term “misbehaviour” or “misconduct”, and it is left to the discretion of members of committees formed under them to ascertain whether a judge’s action would make him/her unfit to be in office.
However, a 1997 resolution, framed by the Supreme Court and comprising all sitting judges of that time, which was later adopted during a conference of chief justices of high courts in 1999, lists out 16 illustrative points on what is expected of a sitting judge.
According to the 1997 resolution, “the behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary”. Therefore, a judge must avoid an act that may erode the credibility of this perception.
Apart from prohibiting judges from contesting elections to any club, society or association not connected with law, the ethics code expects a judge to practice a “degree of aloofness”, consistent with the dignity of his/her office.
It specifically restrains a judge from entering “into a public debate or expressing views in public on political matters or on matters that are pending or are likely to arise for judicial determination”.
A judge is expected to speak through his/her judgement, as the resolution advises against media interviews by judges when they are in office.
“Every judge must at all time be conscious that he is under the public gaze and there should be no act or omission by him, which is unbecoming of the high court he occupies and the public esteem in which that office is held,” the resolution states.
ThePrint takes a look at the disciplinary procedures for judges.
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In-house process
The in-house process to deal with allegations against a sitting judge relating to discharge of his/her judicial function or with regard to his/her conduct or behaviour outside the court was evolved in 1999.
Under this, a complaint can be filed either before the Chief Justice of India (CJI) or the President. It allows the CJI to determine whether the complaint is either frivolous or serious. Importantly, the mechanism does not give the CJI power to remove a judge who is found guilty following a detailed in-house probe.
In case the complaint is found to be frivolous or relates to a pending case, no action is required. However, if the allegations against the judge’s conduct are found to be serious, the CJI can seek a response from the judge concerned. Based on the response, if the CJI opines that the allegations need a deeper probe, he/she can set up an inquiry committee to complete the task.
This committee would be headed by a sitting Supreme Court judge, and would comprise two chief justices of any high courts. There is no timeline prescribed for this committee to conclude its inquiry, but on completion it has to submit a report to the CJI.
The committee has to mainly look at whether there is substance in the allegation made. If the committee finds there is substance in the allegation, it has to then determine how serious it is. In case the misconduct falls into the serious category, then the committee can suggest the judge’s removal from office.
Upon receiving the report, the CJI can advise the judge if the allegations against him/her are not found to be serious enough, warranting his/her removal. But if it is otherwise, then the CJI can ask the judge to resign or seek voluntary resignation.
In the event of a judge refusing to resign, the CJI can, according to the procedure, decide not to allocate judicial work to the judge concerned and accordingly inform the President about this decision.
Former CJI Ranjan Gogoi was subject to an in-house inquiry following sexual harassment charges against him. The allegations were found to be baseless by the panel.
Sitting HC judges have faced in-house inquiry proceedings, but the number is not too significant. The last HC judge to have come under scrutiny was from Madhya Pradesh, and was accused of sexual harassment by a trial court judicial officer.
In 2015, the judge was given a clean chit by the in-house probe panel and two years later was also absolved by a three-member panel constituted by the Rajya Sabha. This panel of two top court judges and then Attorney General was set up under the Judges (Inquiry) Act.
Action under Judges (Inquiry) Act, 1968
The Act is the only legal prescription available to remove a judge.
However, the procedure entailed in it makes it virtually impossible to impeach a judge. So far, impeachment proceedings have been initiated against three judges–Justice V. Ramaswami, Justice Soumitra Sen and Justice P.D. Dinakaran. While the motion against Justice Ramaswami failed, both justices Sen and Dinakaran resigned ahead of the impeachment motion.
In 2018, the Congress made an unsuccessful bid to impeach then sitting CJI Dipak Misra, months after four judges of the top court rebelled against him in a press conference. However, Venkaiah Naidu, who was then the Rajya Sabha Chairman, rejected the motion.
The 1968 Act and Article 124 (4) of the Constitution contemplate a judge’s removal on the basis of a motion in either the Lok Sabha or Rajya Sabha. Before Parliament takes a final call on it, an inquiry is carried out.
According to Article 124 (4), a judge may be removed only through a motion in Parliament with two-thirds support in each House.
A motion has to be moved by either 100 Lok Sabha members or 50 Rajya Sabha members. If the motion is admitted, the Speaker of either of the two Houses constitutes a probe panel in accordance with the Judges (Inquiry) Act. This three-member committee is headed by a sitting Supreme Court judge and comprises an HC chief justice and an eminent jurist.
The proceedings conducted before the committee are akin to a mini-trial where it can frame charges against the accused judge and ask him/her for a response in writing. Witnesses can also be examined during the hearing.
The panel’s report suggesting action based on the findings is submitted to the Speaker. In case the panel finds the judge guilty, Parliament may consider continuing with the motion against the judge and debate over it. In such a situation, the judge would have the right to represent his/her case.
After the debate is over, the motion is put to voting. If there is two-thirds support from those present and voting, or support from the majority of the total membership of the House, the motion is considered to have passed. However, it has to receive similar approval from the other House and only then can a recommendation be sent to the President for the judge’s removal.
(Edited by Nida Fatima Siddiqui)
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