Article 124(4): The Ground and the Procedure

The word "proved", and what it imports

The ground is not misbehaviour; it is PROVED misbehaviour.

So the article assumes a process of proof, and article 124(5) supplies it: Parliament may by law regulate the procedure for the presentation of an address and for the INVESTIGATION AND PROOF of the misbehaviour or incapacity of a Judge under clause (4).

And that is why the removal of a judge in India is not an impeachment. In an impeachment the legislature tries the officer. Here the legislature votes on a matter already proved elsewhere, and chapter 1610 works the two stages that follow.

The Supreme Court put it exactly, in Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699: "the entire process of removal is in two parts: the first part, under clause (5), from initiation to investigation and proof of misbehaviour or incapacity, is covered by an enacted law, Parliament's role being only legislative as in all the laws enacted by it; the second part, under clause (4), is in Parliament and that process commences only on proof of misbehaviour or incapacity in accordance with the law enacted under clause (5). Thus, the first part is entirely statutory, while the second part alone is the parliamentary process."

And the Court connected the word to article 121. The bar on discussion in Parliament is lifted "upon a motion for presenting an address ... as hereinafter provided", and "what lifts the bar under Article 121 is the 'proved' misbehaviour or incapacity." So until misbehaviour is proved under the clause (5) law, Parliament may not discuss the judge's conduct at all, chapter 1720.

What "misbehaviour" and "incapacity" mean

Neither is defined, in the Constitution or in the Act, and an honest answer says so.

What can be said about misbehaviour, on the material this book holds. It is plainly wider than a criminal offence, since chapter 1700 shows that a prosecution is a separate route and does not depend on removal. It is conduct incompatible with holding judicial office, and the practice under the Act is that the Committee frames definite charges, chapter 1590, so that the content of the word is settled charge by charge rather than by definition.

Incapacity. Section 3(5) of the Act, chapter 1580, contemplates an allegation that the Judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity, and where the allegation is denied the Committee may arrange for a medical examination. So incapacity is physical or mental and is provable by evidence, which is why the Act provides machinery for it.

Article 218 and the High Courts

The provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court, with the substitution of references to the High Court for references to the Supreme Court.

Two consequences, and both are counter-intuitive.

A High Court Judge is removed by PARLIAMENT, not by the State Legislature. Article 218 imports article 124(4), which speaks of each House of Parliament. A State Legislature has no part in the removal of a Judge of its own High Court, and article 211, chapter 1720, forbids it even to discuss his conduct.

And the same Committee inquires. The Judges (Inquiry) Act 1968 applies to a Judge, which by section 2(c) means a Judge of the Supreme Court or of a High Court and includes the Chief Justice of India and the Chief Justice of a High Court.

So a Chief Justice of India is removable by the same procedure as a puisne Judge of a High Court, which is worth noticing: the Constitution makes no distinction of rank in the removal of judges.

Clauses (6) and (7)

124(6): the oath. Every person appointed a Judge of the Supreme Court shall, before entering upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out in the Third Schedule.

Chapter 620 and chapter 1360 noted the borrowing in the other direction. The Central Vigilance Commissioner's oath and the Comptroller and Auditor-General's are in the judicial form: "without fear or favour, affection or ill-will."

124(7): no practice after office. No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.

Compare chapter 1370's article 148(4) for the auditor: no further office under any Government. The Judge's bar is on PRACTICE, not on OFFICE; the auditor's is on OFFICE, not on practice. The two are near mirror images, and the criticism made of each is the gap the other closes.

A worked example

Allegations are made against a Judge of a High Court.

Who removes him? The President, on an address of each House of Parliament: article 218 with article 124(4). Not the State Legislature, which may not even discuss his conduct: article 211.

On what ground? Proved misbehaviour or incapacity, and on no other.

Who proves it? Not Parliament. Article 124(5) and the law made under it: the Committee under the Judges (Inquiry) Act 1968, chapter 1580. The first part is entirely statutory; the second part alone is the parliamentary process.

Can the House debate his conduct in the meantime? No. Article 121 lifts the bar only on a motion for an address, and what lifts it is the "proved" misbehaviour: chapter 1720.

Both Houses vote and the motion is carried in one by 300 of 545 members present, of whom 290 vote in favour. Check both majorities. A majority of the total membership of 545 is 273, and 290 exceeds it. Two-thirds of those present and voting: if 300 voted, two-thirds is 200, and 290 exceeds that. Both satisfied.

The other House carries it in the next session. Fatal. The addresses must be presented to the President in the same session.

And the allegation is that he can no longer hear cases because of illness. That is incapacity, and section 3(5) allows the Committee to arrange for a medical examination where the allegation is denied.

What beginners get wrong

That a judge is impeached. He is removed on an address, and the proof happens outside Parliament under the law made under article 124(5).

That a simple majority suffices. Two majorities are required in each House: a majority of the total membership and two-thirds of those present and voting.

That the addresses may be carried in different sessions. They must be presented in the same session.

That a High Court Judge is removed by the State Legislature. Article 218 imports article 124(4), so it is each House of Parliament; and article 211 forbids a State Legislature even to discuss his conduct.

That "misbehaviour" is defined. It is not, in the Constitution or in the Act; the Committee frames definite charges, and the content is settled charge by charge.

Quick revision

Art 124(4): shall not be removed except by an ORDER OF THE PRESIDENT, passed after an ADDRESS BY EACH HOUSE supported by (i) a majority of the total membership of that House and (ii) not less than two-thirds of the members present and voting, presented to the President IN THE SAME SESSION, on the ground of PROVED misbehaviour or incapacity.

Art 124(5): Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity.

Sub-Committee on Judicial Accountability, (1991) 4 SCC 699: the process is in two parts; the first, under cl. (5), from initiation to investigation and proof, is covered by an enacted law, Parliament's role being only legislative; the second, under cl. (4), commences only on proof. The first part is entirely statutory; the second part alone is the parliamentary process. And what lifts the bar under art 121 is the "proved" misbehaviour or incapacity.

Art 218: cl. (4) and (5) apply to a High Court. So a High Court Judge is removed by each House of PARLIAMENT, not by the State Legislature; and by s.2(c) of the Act, "Judge" includes the Chief Justice of India and a Chief Justice of a High Court.

Art 124(6) the oath in the Third Schedule; art 124(7) no pleading or acting in any court or before any authority after office. Mirror of art 148(4): the Judge's bar is on practice, the auditor's on office.

Test yourself

1. Set out article 124(4). 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. The formula is negative and exhaustive, so there is no other means of removal, no dismissal, suspension or compulsory retirement; the order of the President is an executive act at the end of the process and involves no independent judgment; both Houses must address, the Council of States having an equal voice which it does not have on confidence or on money; two distinct majorities must be satisfied in each House, one computed on the total membership so that absences tell against the motion and one on those present and voting; the addresses must be presented in the same session; and the ground is proved misbehaviour or incapacity and no other.

2. What is the significance of the word "proved"? That the removal of a judge in India is not an impeachment. The ground is not misbehaviour but proved misbehaviour, which assumes a process of proof, and article 124(5) supplies it by empowering Parliament to regulate by law the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity. As the Supreme Court held in Sub-Committee on Judicial Accountability v. Union of India, the entire process is in two parts: the first, under clause (5), from initiation to investigation and proof, is covered by an enacted law, Parliament's role being only legislative as in all laws it enacts; and the second, under clause (4), is in Parliament and commences only on proof of misbehaviour or incapacity in accordance with the law made under clause (5), so that the first part is entirely statutory and the second part alone is the parliamentary process. The Court added that what lifts the bar on discussion under article 121 is the proved misbehaviour or incapacity, so that until the statutory stage is complete Parliament may not discuss the judge's conduct at all.

3. How is a Judge of a High Court removed? By exactly the same process. Article 218 provides that clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court, with the substitution of references. Two consequences follow which are counter-intuitive. The removal is by the President on an address of each House of Parliament, so a State Legislature has no part in the removal of a Judge of its own High Court, and by article 211 it may not even discuss his conduct. And the same statutory machinery applies, since section 2(c) of the Judges (Inquiry) Act 1968 defines a Judge as a Judge of the Supreme Court or of a High Court and includes the Chief Justice of India and the Chief Justice of a High Court, so that the Chief Justice of India and a puisne Judge of a High Court are removable by an identical procedure and the Constitution draws no distinction of rank.

4. What do "misbehaviour" and "incapacity" mean? Neither is defined, in the Constitution or in the Act, and the honest answer begins by saying so. Misbehaviour is plainly wider than a criminal offence, since prosecution under the Prevention of Corruption Act is a separate route which does not depend on removal; it is conduct incompatible with the holding of judicial office, and its content is settled in practice charge by charge, because section 3(3) of the Act requires the Committee to frame definite charges on the basis of which the investigation is proposed to be held. Incapacity is physical or mental, as appears from section 3(5), under which, where it is alleged that the Judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the Committee may arrange for a medical examination; so incapacity is a matter of evidence for which the Act provides machinery.