MEMBERS REFERENCE SERVICE

LARRDIS
LOK SABHA SECRETARIAT
NEW DELHI

REFERENCE NOTE
For the use of Members of Parliament NOT FOR PUBLICATION

No. 32/RN/Ref./July/2018

IMPEACHMENT OF JUDGES

Prepared by Shri B. Phani Kumar, Additional Director (23034536) and Smt. Minakshi Sharma, Joint Director of
Lok Sabha Secretariat under the supervision of Smt. Kalpana Sharma, Joint Secretary and
Shri C.N. Sathyanathan, Director.

The Reference Note is for personal use of the Members in the discharge of their Parliamentary duties, and is
not for publication. This Service is not to be quoted as the source of information as it is based on the sources
indicated at the end/in the context.
 IMPEACHMENT OF JUDGES

The Parliament, the Executive and the Judiciary are the three main pillars of
our democratic edifice. The Constitution of India defines powers, delimits
jurisdictions and demarcates the responsibilities of each organ. As regards the
relationship between the Parliament and the Judiciary, both are under constitutional
obligation not to encroach upon each other's jurisdiction. In this respect,
Article 121 provides that the conduct of the Judge of the Supreme Court or High
Court cannot be discussed in Parliament except upon a motion, for presenting to
the President, praying for the removal of such Judge. Also, the matters which are
sub judice cannot be discussed in Parliament. Article 122 provides that the
Judiciary too cannot question the validity of any proceedings of Parliament on the
ground of any alleged irregularity of procedure.

Constitutional Provisions for the resignation/removal of Judge

A Judge of the Supreme Court or of a High Court may, by writing under his
hand addressed to the President, resign his office, but he cannot be removed from
his office except by an order of the President passed after an address by each
House of Parliament in the prescribed manner. The Procedure is contained in
Article 124(4) of the Constitution of India read with proviso (b) to
Article 124(2)(a) and proviso (b) to Article 217(1) for 'proved misbehaviour or
incapacity'.

The address for the removal of a judge, whether of the Supreme Court or a
High Court, can be presented to the President only on the ground of 'proved
misbehavior' or 'incapacity'. Such an address has to be presented to the President in
the same session in which it is passed by each House of Parliament supported by a
majority of the total membership of each House and also by a majority of not less
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than two-thirds of the members of each House present and voting. If the address of
both the Houses is in conformity with the aforesaid provision of the Constitution,
the President issues an order for the removal of the Judge from office.

Procedure for the removal of Judge

The Parliament, in exercise of the power conferred by Clause (5) of

Article 124, enacted the Judges (Inquiry), Act in 1968. The law was enacted with
a view to regulate the procedure for the investigation and proof of the
misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court
and for the presentation of an address by Parliament to the President and for
matters connected therewith.

The procedure for the investigation and proof of the misbehaviour or

incapacity of a Judge and for the presentation of an address to the President has
been prescribed by the Judges (Inquiry) Act,1968. Under the procedure laid down
by the Act, a notice of a motion for presenting an address to the President for the
removal of a Judge, if given in Lok Sabha, is to be signed by not less than one
hundred members of the House and if given in Rajya Sabha, by not less than fifty
members of that House. The Speaker or the Chairman, as the case may be, after
due consideration and consultation, may admit or refuse to admit the motion.

Consequent on the admittance of the motion, the Speaker or the Chairman,

as the case may be, constitutes a Committee of three members, one each from
among the following:(i) The Chief Justice and other Judges of the Supreme Court;
(ii) Chief Justice of the High Courts; (iii) distinguished jurists. In case the notices
of motion are given on the same day in both the Houses, the Committee will be
constituted only if the motion has been admitted in both Houses and thereupon
jointly by the Speaker and the Chairman. In case notices of motion are given in
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both the Houses on different dates, the notice which is given later shall stand
rejected.

The Committee will frame definite charges against the Judge on the basis of
which investigation is proposed to be held. The Committee will have the powers
of a civil Court in respect of summoning persons for examination on oath,
production of documents, etc. The charges together with a statement of the grounds
on which each such charge is based, shall be communicated to the Judge and he
shall be given a reasonable opportunity of presenting a written statement of
defense within such time as may be specified. In a case of alleged physical or
mental incapacity and where such an allegation is denied, a Medical Board will be
appointed for the medical examination of the Judge by the Speaker or, as the case
may be, the Chairman or, where the Committee has been constituted jointly, by
both of them.

At the conclusion of the investigation, the Committee will submit its report
to the Speaker or, as the case may be, to the Chairman, or where the Committee
has been constituted jointly, to both of them, stating therein its findings on each of
the charges separately with such observations on the whole case as it thinks fit.
The report will thereafter be laid before the respective House, or the Houses where
the Committee has been appointed jointly by the Speaker and the Chairman.

If the Committee absolved the Judge of any misbehavior or incapacity, the

motion pending in the respective House or Houses, as the case may be, will not be
proceeded with. If the report of the Committee contains a finding that the Judge is
guilty of any misbehavior or suffers from any incapacity, the motion will, together
with the report of the Committee, be taken up for consideration by the House or the
Houses in which it is pending.
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In the event of the adoption of the motion in accordance with the

constitutional provisions, the misbehaviour or incapacity of the Judge will be
deemed to have been proved and an address praying for the removal of the Judge
will be presented in the prescribed manner by each House of Parliament in the
same session in which the motion has been adopted.

Before the procedure for the removal of Judges was laid down by law
(i.e. The Judges (Inquiry) Act, 1968), notices of motions for the removal of a Judge
on the ground of misbehaviour or incapacity were on occasions tabled by
members. Whenever a notice was received from a member of his intention to move
such a motion, the Speaker discussed the matter with the member and examined
the material on which the allegation was based to ensure that there was a prima
facie case to proceed in the matter. He asked the member not to make the contents
of his motion public: in fact, a strict secrecy about the matter was ensured. After
the Speaker was satisfied that there was a prima facie case, he sent a copy of the
complaint to the Chief Justice of the concerned High Court and to the Chief Justice
of India to look into the matter. A copy was also sent to the Minister of Home
Affairs for his comments. The Speaker adopted this procedure in order to resolve
the matter without its being raised on the floor of the House.

As a result of the adoption of this procedure in such cases, either the Judge
concerned retired voluntarily or the defect was soon rectified and thus unpleasant
controversy which might have lowered the prestige of Judiciary was avoided on
the floor of the House, and the cases complained of were resolved before the
matter could be raised in the House.
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Instances of Impeachment

After the passing of the Judges (Inquiry) Act, 1968, a notice of a motion for
presenting an address to the President for the removal of a Judge of the Supreme
Court was given in Lok Sabha by S.M. Joshi and 198 other members on
15 May 1970 (10 Session, 4LS). The Speaker (Dr. G.S. Dhillon) did not consider
it to be a fit case for action under the Judges (Inquiry) Act, 1968 and did not admit
the notice. The following cases have come up before the Parliament.

I. Case of Justice V. Ramaswami

The first such case involved the impeachment motion in Lok Sabha of
Justice V. Ramaswami of the Supreme Court in May 1993 on charges
relating to gross abuse of his financial and administrative powers as the Chief
Justice of the Punjab and Haryana High Court and criminal misappropriation
of property. The Notice of Motion was signed by Prof. Madhu Dandavate
and 107 others, which was admitted by the Speaker (9th Lok Sabha),
Shri Rabi Ray on 12 March 1991. The Speaker, in pursuance of Section 3(2)
of the Judges (Inquiry) Act, 1968, constituted a Committee consisting of
Justice P.B. Sawant, Judge of the Supreme Court of India, (Chairman),
Justice P.D. Desai, Chief Justice of the High Court at Bombay and
Justice O. Chinnappa Reddy, former Judge of the Supreme Court of India
(Members) for making an investigation into the grounds on which the
removal of Justice V. Ramaswami was prayed for. Before the Committee
could submit its report, the Ninth Lok Sabha was dissolved by the President
on 13 March 1991. The question whether the Motion lapsed or remained
alive on the dissolution of the Lok Sabha was raised in a petition filed before
the Supreme Court which held that the Notice of Motion remained alive.
Justice Sawant Committee submitted its report to the Speaker of the
 6

Tenth Lok Sabha in July 1992. The Report found that Justice Ramaswami
was guilty of misbehaviour and was laid on the Table of the House on
17 December 1992 by the Secretary-General, Lok Sabha. As this was the
first case of its kind, the Speaker in consultation with the Leaders of Parties
and Groups in the House, formulated the procedure. After two days
discussion, the motion and the address were put to the vote of the House.
As a result of the division (Ayes:196 and Noes: Nil) the motion and the
address were declared as not carried by the requisite majority in accordance
with clause (4) of Article 124 of the Constitution.

II. Case of Justice Soumitra Sen

The second case involved Justice Soumitra Sen of the Calcutta High Court
whose removal from office was sought on two grounds by the following
motions: (1) misappropriation of large sums of money in his capacity as the
receiver appointed by the High Court of Calcutta; and (ii) misrepresentation
of facts with regard to this misappropriation of money before the High Court
of Calcutta. The Committee found him guilty of both the charges.
The Committee Report was laid on the Table of both the Houses on
10 November 2010 by the respective Secretaries-General. After discussion,
the motion and the address were put to the Vote of the House on
18 August, 2011. The Rajya Sabha voted in favour of his impeachment by
189 votes in favour and 16 votes against. The motion along with the address
was listed for consideration in the Lok Sabha on 5 September 2011.
The Motion was proposed in the name of Speaker, Lok Sabha. Subsequently,
Lok Sabha at its sitting held on 5 September 2011 agreed that the motion and
the address for presenting to the President praying for the removal from
office of Justice Soumitra Sen may not be proceeded with.
 7

III. Case of Justice P.D. Dinakarn

The third case involved Justice Paul Daniel Dinakaran, Chief Justice of the
Karnataka High Court, against whom charges of corruption were made.
On 14 December, 2009, three notices of motion, each signed by several
Members of Rajya Sabha for presenting an address to the President of India
for the removal of Justice Paul Daniel Dinakaran, under Article 217 read with
article 124 (4) of the Constitution of India were received. All the three
notices taken together had been signed by 75 members of Rajya Sabha.
The Motion was admitted by the Chairman, Rajya Sabha on
17 December, 2009. The Chairman, Rajya Sabha, set up Inquiry Committee
on 15 January 2010, to investigate into the grounds on which his removal was
sought for. However, before the Committee could complete its investigation
and submit its Report, the concerned Judge submitted his resignation on
29 July 2011 by addressing a letter to the President of India. in view of this,
the notice of motion praying for presenting an Address to the President
became infructuous and the Chairman, Rajya Sabha, brought the work of the
Inquiry Committee to a close.

IV. Case of Justice S.K. Gangele

On 4 March, 2015, fifty-eight Members of Rajya Sabha gave Notice to the

Chairman, Rajya Sabha of a Motion for the removal of Justice S.K. Gangele,
a Judge of the Madhya Pradesh High Court at Gwalior under
Article 217(1) (b) read with Article 124 (4) on the grounds of misconduct (as
listed in the notice of motion). The Chairman, Rajya Sabha admitted the
Notice of motion and in pursuance of Section 3(2) of the Judges (Inquiry)
Act, 1968 constituted a Committee for the purpose of making an
investigation into the grounds on which the removal of Justice S.K. Gangele
 8

was prayed for. The Committee was reconstituted on 10 February, 2016,

17 March 2016 and again on 8 April 2016. The Inquiry Committee, after
investigation found that charges were not proved. On 15 December, 2017,
the Secretary-General, Rajya Sabha laid on the Table, under sub-section (3)
of Section 4 of the Judges (Inquiry) Act, 1968 read with rules 9 and 10 of the
Judges (Inquiry) Rules 1969, the Report of the Inquiry Committee and a copy
each of the evidence tendered before the Inquiry Committee and documents
exhibited during the Inquiry.

Case of Justice Dipak Misra

On 20 April 2018, notice of Motion signed by 64 Members of the Rajya

Sabha under Article 124(4) of the Constitution praying for the removal of Justice
Dipak Misra, Chief Justice of India was submitted to the Chairman, Rajya Sabha
for certain acts of misbehaviour specified in the Notice of Motion.

The Chairman, Rajya Sabha after considering the material contained in the
Notice of Motion and consultation with legal luminaries, constitutional experts,
opined (vide order dated 23 April, 2018) that the Notice of Motion did not deserve
to be admitted and accordingly refused to admit the Notice of Motion.

Procedure for Removal of Judges in other countries

Australia

Federal judges may only be removed by the Governor-General in Council

‘on an address from both Houses of the Parliament in the same session, praying for
such removal on the ground of proved misbehaviour or incapacity’. Where there
are allegations that concern a federal judge, the Chief Justice (or a judge delegated
by the Chief Justice) will carry out preliminary investigations and may refer the
 9

matter to a Conduct committee of the judiciary (Federal Court of Australia Act

1976) . If the Chief Justice, assisted by the findings of the Conduct Committee (if
any), considers that there are grounds that might justify removal, the Chief Justice
may approach the Attorney General to initiate the process of Parliamentary
removal. Parliament may appoint a commission to conduct a public hearing and
determine whether grounds for removal exist
Canada

Judges ‘shall hold office during good behaviour, but shall be removable by
the Governor General on Address of the Senate and House of Commons’
(Constitution Act, s 99; Supreme Court Act s 9(1)). This provision is
complemented by the Judges Act, 1985 which authorises the Canadian Judicial
Council, primarily composed of heads of Courts, to carry out formal enquiries and
to act as a Court (Judges Act 1985, s 63). – The judge who is under investigation
has the right of ‘being heard at the hearing, of cross-examining witnesses and of
adducing evidence on his or her own behalf’ (Judges Act 1985, s. 64).

The Council may recommend removal from office on the following statutory
grounds: ‘(a) age or infirmity, (b) having been guilty of misconduct, (c) having
failed in the due execution of that office, or (d) having been placed, by his or her
conduct or otherwise, in a position incompatible with the due execution of that
office’ (Judges Act 1985, s 65).

United Kingdom

Judges in England and Wales hold office ‘during good behaviour’. They are
removed from office by the Crown on an address presented by both Houses of
Parliament (Senior Courts Act 1981, s 11(3)). – The same removal mechanism
applies to members of the UK Supreme Court (Constitutional Reform Act, s 33).
 10

A member of the Supreme Court who faces an allegation of misconduct will have
the opportunity to appear before a tribunal whose members include the heads of
Court of the various jurisdictions within the UK, and the tribunal must report
before any motion is tabled in Parliament. If a complaint is received against a
judge in England and Wales, the Office for Judicial Complaints operates a system
of preliminary inquiry and investigation carried out by two different judges,
followed by a review panel which decides whether to advise the Lord Chancellor
to table a motion in Parliament (Judicial Discipline (Prescribed Procedures)
Regulations 2013).

USA

The impeachment of federal judges, in fact, is often an even more murky

process than the impeachment of other officials. While Article II, Section 4
contains some vague guidelines for what warrants impeachment proceedings – and
this section relates to federal officials in general – Article III only explains that
judges are supposed to remain in office only while in “good Behavior.” This is an
incredibly open-ended standard. Only 15 federal judges have ever been impeached
and only eight have ever been convicted and removed. But even then, the “articles
of impeachment,” the list of misconduct the accused is on trial for, have described
quite a wide range of inappropriate behavior.”
References:
1) Practice and Procedure of Parliament, M.N. Kaul and S.L.Shakdher, Editor:
Anoop Mishra, 7th Edition' Lok Sabha Secretariat, New Delhi, 2016.
2) (http://10.21.88.204/lawcommissionofindia/reports/Report195.pdf)
3) (www.crf-usa.org)
4) http://thecommonwealth.org/sites/default/files/press-
release/documents/Compendium%20on%20judicial%20Appt%20Tenure%20and
%20Removal%20in%20the%20Commonwealth.pdf
5) Rajya Sabha Bulletin Part -II dated 24 April, 2018
6) Rajya Sabha at Work -Editor : Shumsher K. Sheriff, 3rd Edition, Rajya Sabha
Secretariat , New Delhi, 2017.
7) Impeachment of a Judge in the Indian Parliament - Dr. V.K. Agnihotri (ASGP-
Session Kampala, 2012).