A motion seeking the removal of Allahabad High Court Judge, Justice Shekhar Kumar Yadav, has been submitted by 55 Members of Parliament (MPs) to the Chairman of the Rajya Sabha. This motion follows the provisions outlined in Articles 124 and 217 of the Indian Constitution, which govern the removal of judges from the Supreme Court and High Courts. According to these articles, a judge can only be removed by the President of India on grounds of ‘proved misbehaviour’ or ‘incapacity.’ However, the Constitution does not specifically define these terms, leaving them open to interpretation. The Supreme Court has clarified that wilful misconduct, corruption, lack of integrity, or any other offence involving moral turpitude can be considered as ‘misbehaviour.’ ‘Incapacity’ refers to a medical condition that may include physical or mental limitations.
The process for the removal of a judge involves multiple steps, including motions in both Houses of Parliament, a committee investigation, and the final approval of the President.
Procedure for Removal of Supreme Court Judges
Under Articles 124 to 147 of Part V of the Indian Constitution, which outlines the powers and procedures for the Supreme Court, the process for removing a Supreme Court judge is a detailed procedure.
1. Initiation of the Motion: A motion to remove a judge can be initiated in either the Lok Sabha or Rajya Sabha. The motion must be signed by at least 100 MPs in the Lok Sabha or 50 MPs in the Rajya Sabha. This motion is then presented to the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha.
2. Admission of the Motion: The Speaker or Chairman can either admit or reject the motion. If admitted, the motion moves forward to the next stage.
3. Formation of the Investigative Committee: Upon admitting the motion, the Speaker or Chairman appoints a three-member committee to investigate the allegations against the judge. This committee consists of:
The Chief Justice or the senior-most judge of the Supreme Court,
The Chief Justice of a High Court,
A prominent jurist.
4. Committee Report: If the committee finds the judge guilty of ‘misbehaviour’ or ‘incapacity,’ it submits its report to the Parliament. The report is then debated and discussed in the House where the motion was originally introduced.
5. Approval by Parliament: For the judge to be removed, the motion must be passed by both Houses of Parliament with a special majority. This means that the motion must be approved by a majority of the total membership of each House, as well as by at least two-thirds of the members present and voting.
6. Presidential Address: After the motion is passed by Parliament, it is addressed to the President of India, who may then issue an order for the removal of the judge.
7. Removal of the Judge: The President’s order for removal is final, and the judge is removed from office upon the President’s assent.
Historical Context
While the process is clearly outlined in the Constitution, it is noteworthy that no judge of the Supreme Court has been impeached or removed so far. Currently, there are 23 judges in the Supreme Court, including the Chief Justice of India, against a maximum possible strength of 31 judges.
Understanding the intricate procedure for removing judges ensures that any such action is based on solid grounds of misbehaviour or incapacity, maintaining the integrity and independence of the judiciary.
