Source: The Hindu 

Introduction 

The recent controversy surrounding Justice Shekhar Kumar Yadav's speech at a Vishwa Hindu Parishad event has reignited concerns about the accountability mechanisms for India's higher judiciary. The current system, governed by Articles 124(4), (5), 217, and 218 of the Constitution and the Judges (Inquiry) Act, 1968, requires "proved misbehaviour or incapacity" to be established through a complex impeachment process involving both parliamentary approval and a three-member judicial committee. 

What is Impeachment?

• Impeachment is a constitutional mechanism to remove judges of higher judiciary (Supreme Court and High Courts) in India for proven misbehavior or incapacity. The process requires initiation in either house of Parliament through a motion approved by the presiding officer, followed by an investigation by a three-member committee consisting of a Supreme Court judge, a High Court Chief Justice, and an eminent jurist. 
• For successful impeachment, the motion needs either a two-thirds majority of present MPs voting in favor or an absolute majority in each House of Parliament, making it a rigorous process that combines both judicial scrutiny and parliamentary oversight. 
• The process, however, has a significant limitation - if a judge resigns before the completion of proceedings, the investigation typically stops, and they retain their retirement benefits, unlike other public officials who face accountability even after leaving office. 

Constitutional Provisions and Legal Framework: 

• The process is governed by Articles 124(4), (5), 217, and 218 of the Constitution of India, along with the Judges (Inquiry) Act, 1968. 
• Article 124(4) requires "proved misbehavior or incapacity" as grounds for removal and mandates that the panel's findings must be voted upon by Parliament. 

Grounds of Impeachment  

• Grounds for removing Supreme Court or High Court judges: "proved misbehaviour" or "incapacity." 
• The removal process requires presentation of an address to the President, which must be passed by both Houses of Parliament in the same session. 
• The parliamentary approval requires either an absolute majority of the total membership of each House, OR a majority of not less than two-thirds of the members present and voting. 
• Both Houses must pass the motion with the required majority in the same parliamentary session for it to be valid. 
• Once Parliament successfully passes the motion with required majority, the President is mandated to issue an order removing the judge from office. 
• This rigorous process ensures that removal of judges is not arbitrary and requires substantial parliamentary consensus, protecting judicial independence while maintaining accountability. 

Process Steps: 

• 3. The impeachment motion must be initiated in either the Lok Sabha or Rajya Sabha and approved by the respective presiding officer (Speaker/Chairman). 
• A three-member committee is then constituted under the Judges (Inquiry) Act, comprising:  
  • A Supreme Court judge 
  • A Chief Justice of a High Court 
  • An eminent jurist 
• This committee functions like a trial court to investigate and determine guilt. 
• Parliamentary Approval Requirements: 6. For successful impeachment, the motion requires either: 
• Two-thirds majority of present MPs voting in favor, or 
• An absolute majority in each House 

Outcome: 

• If found guilty and successfully impeached, the judge is removed from office. 
• However, if the judge resigns before completion of proceedings, the investigation typically stops, and they retain retirement benefits - a loophole highlighted by several cases in Indian judicial history. 

Judicial Impeachment Cases in India’s Judiciary  

• Justice V. Ramaswami Case 
  • First Supreme Court judge to face impeachment proceedings for extravagant spending on official residence 
  • Controversially purchased 7 maces (including one with silver head) and transported them by cargo plane 
  • Despite being found guilty by the panel, impeachment failed in Lok Sabha due to Congress party's abstentions (196 voted for removal, 205 abstained) 
  • CJI stopped allocating work to him until retirement, but he retained benefits 
• Justice Soumitra Sen Case 
  • Judge of Calcutta High Court found guilty of misappropriating ₹33.23 lakh as a court-appointed receiver in 1983 
  • First judge to be voted for removal by Rajya Sabha with overwhelming majority 
  • Resigned before the motion could be tabled in Lok Sabha, avoiding full accountability 
• Justice S. K. Gangele Case (2015) 
  • Faced allegations of sexual harassment 
  • An inquiry committee was constituted to investigate the charges 
  • The committee ultimately cleared him of all wrongdoing 
  • This case marked one of the rare instances where sexual harassment allegations led to impeachment proceedings 
• Justice C.V. Nagarjuna Case (2017) 
  • Accusations included victimization of a Dalit judge and financial misconduct 
  • Impeachment motion was initiated in Parliament 
  • The motion failed because several MPs withdrew their signatures 
  • Highlighted the challenges in maintaining support for impeachment proceedings 
• Justice Dipak Misra Case (2018) 
  • Most high-profile case as it involved a sitting Chief Justice of India 
  • The impeachment motion was politically charged 
  • Rajya Sabha Chairman rejected the motion at the preliminary stage 
  • This case sparked significant debate about the independence of judiciary and the impeachment process 
  • First time in Indian history that an impeachment motion was moved against a Chief Justice of India 
• Justice P.D. Dinakaran Case 
  • Chief Justice of Sikkim High Court faced 16 charges, including appropriating over 300 acres of farmers' land in Tamil Nadu 
  • Resigned on the first day of the three-member panel's sitting 
  • His resignation prevented the completion of investigation despite attempts by Forum for Judicial Accountability (FJA) to continue proceedings 
  • Case highlighted the loophole allowing judges to escape accountability through resignation 
• Justice Shekhar Kumar Yadav Incident (Current) 
  • Made controversial speech showing apparent bias against Muslim community 
  • Speech was delivered at Vishwa Hindu Parishad event within Court precincts 
  • Incident has sparked fresh debate about accountability mechanisms for higher judiciary

Can Judges Escape Accountability Through Resignation? Insights from the Dinakaran Case RTI Revelations ? 

• RTI petitions were filed a former Frontline legal affairs editor, which revealed correspondence between the three-member committee members and the Rajya Sabha Chairperson regarding the Dinakaran case. 
• The RTI replies exposed that both jurist Mohan Gopal and Chairman Justice Aftab Alam believed the investigation should continue despite Justice Dinakaran's resignation. 
• In his letter dated 15th August, 2011, Mohan Gopal argued that allowing resignation to end investigations would give judges the power to escape accountability, creating an "absurd situation" not intended by legislature. 
• The correspondence has been included as annexures in Venkatesan's 2014 book "Constitutional Conundrums: Challenges to India's Democratic Process." 
• Despite Justice Aftab Alam's agreement to continue the committee's work, the request was ultimately rejected by Rajya Sabha Chairman Hamid Ansari, highlighting the limitations in the current accountability framework. 
• These RTI revelations emphasized the need for reforms in the judicial accountability system to prevent judges from escaping investigation through resignation. 

Judicial Impeachment Processes in Other Countries 

• In the United Kingdom 
  • The system states judicial independence through the "good behaviour" standard 
  • Initial investigations are handled by professional bodies (Office for Judicial Complaints) 
  • Both Houses of Parliament must agree to remove a judge 
  • The Crown makes the final removal, but only after Parliamentary address 
  • This process hasn't been used in over 300 years, showing the system's stability 
• For the United States: 
  • The Constitution specifically protects federal judges through the "good behavior" clause 
  • The process mirrors presidential impeachment but is specifically for judiciary 
  • The House needs a simple majority to impeach 
  • The Senate requires a two-thirds majority to convict and remove 
  • Only 15 federal judges have been impeached in U.S. history, with 8 convictions 
• In Canada: 
  • The system combines elements of both UK and US approaches 
  • The Canadian Judicial Council investigates complaints 
  • Removal requires action by both legislative houses 
  • The Governor General (representing the Crown) makes the final removal 
  • The specific grounds for removal are more clearly defined than in the UK or US 
  • No federally appointed judge has ever been removed through this process 

Conclusion: 

The existing framework for judicial accountability in India presents significant challenges, as evidenced by historical precedents where judges have avoided accountability through resignation. This loophole allows judges to retain post-retirement benefits despite serious allegations, unlike other public officials. The case for reforming the judicial accountability mechanism is particularly pressing, as the current system allows judges to terminate investigations by simply resigning, potentially undermining public confidence in the judiciary's integrity.