Judicial Accountability: The In-House Procedure, Impeachment and the Criminal Law

In one line

There are three routes against a judge, removal by Parliament, prosecution under the criminal law and the in-house procedure, and the first has never succeeded, the second requires a consultation, and the third is unpublished.

In the wording a student can write in an exam: a judge of the Supreme Court or a High Court may be removed only by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership and a majority of not less than two-thirds of the members present and voting, on the ground of proved misbehaviour or incapacity, under article 124(4), made applicable to High Court judges by article 217(1)(b); the procedure for investigation and proof is the Judges (Inquiry) Act 1968.

Route one: removal by Parliament

The constitutional provision. Article 124(4) provides for removal by an order of the President passed after an address by each House supported by the double majority, on the ground of proved misbehaviour or incapacity. Article 124(5) empowers Parliament to regulate by law the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity.

The Judges (Inquiry) Act 1968. Section 3 provides that where notice of a motion for an address is given, signed by not less than one hundred members of the House of the People or not less than fifty members of the Council of States, the Speaker or the Chairman may, after consulting such persons as he thinks fit and considering such materials as are available to him, either admit the motion or refuse to admit it. If the motion is admitted, the Speaker or Chairman keeps it pending and constitutes a Committee of three: one chosen from among the Chief Justice and other Judges of the Supreme Court, one from among the Chief Justices of the High Courts, and one who is in his opinion a distinguished jurist. Where notices are given on the same day in both Houses, no Committee is constituted unless the motion is admitted in both.

Section 4 provides for the report of the Committee, section 5 for its powers, and section 6 for the consideration of the report and the procedure for the presentation of an address.

Why it has never succeeded. The motion requires the signatures of a large number of members and can be refused admission by the Speaker or Chairman. The Committee must find misbehaviour proved. And the address then requires the double majority in both Houses, which is a political decision that has never been carried through to a vote resulting in removal. In the one instance in which a Committee found misbehaviour proved, the motion failed in the House.