NAME : DHANUSHREE. K.

STUDENT ID : 20221BBL0005

COURSE : BBA LLB (HONS.)

SEMESTER : 03

SUBJECT : CONSTITUTIONAL LAW 2

TOPIC : Impeachment of judges

SUBMITTED TO : Prof. Abhinav Vishwanath

Statement of Academic Integrity

• I am aware of the University Policy on Academic Integrity and understand that

if I plagiarise I will be subject to disciplinary procedures.
• I declare this piece of work is my own and any facts, words or ideas from others
have been properly acknowledged.

Signature:

Date: 17/12/2023

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 PRESIDENCY UNIVERSITY, BANGALORE

SCHOOL OF LAW

TOPIC : AN ANALYSIS OF IMPEACHMENT OF JUDGES

SUBMITTED BY: DHANUSHREE . K. S, 20221BBL0005

SEMESTER 03, SCHOOL OF LAW

PRESIDENCY UNIVERSITY, BANGALORE

SUBMITTED TO: Prof. Abhinav Vishawanath

Asssistant Professor, SCHOOL OF LAW

PRESIDNECY UNIVERSITY, BANGALORE

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 TABLE OF CONTENTS

Sl.no CONTENTS Page no.

1. ACKNOWLEDGEMENT 4
2. ABSTRACT 5
3. INTRODUCTION
• Literature review 6
• objectives of the study
• Research Methodology
3.1 ANALYSIS OF REMOVAL GROUNDS 7
3.2 INCAPACITY 8
3.3 JUDGES REMOVAL REQUIREMENT 8
3.4 ANALYSING THE EFFFIENCY OF PROCEDURE 9 – 12
OF IMPEACHMENT
4 RECOMMENDATIONS AND CONCLUSION 13
5 BIBLIOGRAPHY 14

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 1. ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to Prof. Abhinav Vishwanath, who
gave me an wonderful opportunity to do this research paper on the topic Analysis of
Impeachment of Judges, which also helped me in doing lot of research and I came to know
about so many new things I am really thankful to them.

Secondly, I would also like to thank my parents and friends who helped me a lot in finalising
this project within the limited time frame.

Dhanushree K.S, 20221BBL0005

School of Law

Presidency University, Bangalore

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 2. ABSTRACT

The concept of judicial independence and accountability of the Indian judiciary to other arms
of government becomes indispensable for the successful operation of the constitutional
machinery. Judges are an integral aspect of the Indian judiciary and are given fundamental
importance and adjudicatory independence in order to protect the country's rule of law. As a
result, it is also vital to establish a check on the actions of the judges in order to provide
checks and balances without jeopardising the independence of the court. For this aim, the
writers of the Indian Constitution inserted Article 124(4) and Article 217 for Supreme Court
and High Court judges, respectively.

This research study compares the efficiency of the grounds supplied in the aforementioned
Articles for the impeachment of judges to those offered in other countries and the Latimer
House Principles. The study article then moves on to the requirements for establishing the
aforementioned impeachment process in the Indian courts. The third section of the paper
examines the efficiency of the impeachment procedure in light of the Judges Inquiry Act
1968. In addition, the essay analyses the Judges Inquiry Bill 2006, which is intended to
replace the Judges Inquiry Act 1968. The third section of the article examines the practical
obstacles that impede the effective functioning of India's impeachment process, consequently
limiting judges' accountability.

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 3. INTRODUCTION

The Indian constitutional framework divides powers among the legislature, executive, and
judiciary in order to maintain checks and balances. The Constitution affords the judiciary
authority for effective adjudication, emphasising judicial independence. Judges are regarded
as the foundation of the legal system, yet safeguards are required to prevent misconduct from
affecting justice administration. Articles 124(4) and (5) deal with the impeachment of
Supreme Court justices, allowing them to be removed for proven misbehaviour or incapacity.
Simultaneously, Article 217(b) establishes a similar procedure for impeaching High Court
judges. These impeachment procedures are critical safeguards in India's constitutional
system, requiring a high bar and parliamentary approval to guarantee accountability while
preserving the judiciary's independence.

LITERATURE REVIEW

The researcher has referred to different articles which are online and books related to
constitutional law which are available online under different sites.

• JSTOR ONLINE BOOKS

• CONSTITUTION OF INDIA,1950
• M.P. JAIN INDIAN CONSTITUTIONAL LAW 7th Edition, Lexis Nexis

OBJECTIVES OF THE STUDY

The objective of the study is for examining impeachment laws for judges entails scrutinising
clarity, ambiguity, and adequacy. Assessing constitutional safeguards, such as checks and
balances, due process, and impeachment certainty, is critical for safeguarding judges from
arbitrary or politically driven actions.

RESEARCH METHODOLOGY

In this paper we are adopting the Doctrinal Legal Reesearch, also the secondary data analysis,
that is the analysis of data that was collected by someone else for another primary purpose.
The utilisation of this existing data provides a viable option for researchers who may have
limited time and resource.

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 3.1 ANALYSIS OF THE REMOVAL GROUNDS

The independence of the court is seen as an integral aspect of the Basic Structure of the
Indian Constitution. Judges cannot be said to have fixed tenure if the reasons for
dismissal are not explicitly stated, and they serve at the discretion of whoever has the
authority to dismiss them. Defining the conditions for dismissal in advance has the extra
benefit of teaching judges about the basic rules of conduct that are required of them.

It also serves as a warning to judges who fail to follow the anticipated behaviour.
According to the United Nations' eighteenth basic principle on the Independence of the
Judiciary, "Judges shall be subject to suspension or removal only for reasons of
incapacity or behaviour that renders them unfit to discharge their duties.”1

Article 124(4) of the Indian Constitution, states that ,”A Judge of the Supreme Court…….
such removal on the ground of proved misbehaviour or incapacity.”

The absence of a defined term "misbehaviour" and its requisite level in the Indian
Constitution raises concerns about the impeachment process for judges. While
Parliament's decision on "proved misbehaviour or incapacity" is final and not subject to
judicial review, the lack of a clear definition impacts judicial independence. Justice
Veeraswami's case questions whether choices like purchasing silver or silver-plated
maces constitute misbehaviour. Comparing to the U.S. Constitution, the requirement for
judges to hold office during "good behaviour" is elaborated as abstaining from high
crimes and misdemeanours. The Latimer House guidelines emphasize the need for serious
misconduct in judge removal. Although misbehaviour serves as a valid ground for
impeachment globally, no country has a defined list of offences, making it crucial for
State Legislatures and Parliament to establish markers, subject to judicial review,
ensuring a balance between judge accountability and judicial independence.

1Basic Principles on the Independence of the Judciary ,UNITED STATES OF HUMAN RIGHTS
(May3,2021,10.04PM),https://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx#:~:t
ext=18.,establihed%20standards%20of%20judicial%20conduct

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 3.2 INCAPACITY

In India, incapacity, including both physical and mental aspects, serves as grounds for the
removal of judges under Sections 5 and 6 of the Inquiry Act. A medical board appointed by
the Speaker or Chairman determines incapacity through examination. Failure to undergo
examination results in the presumption of incapability, leading to impeachment. Other
countries like Rwanda and Russia also allow judge removal for proven misbehavior,
incapacity, or lack of knowledge. However, the application of incapacity as a ground in India
is limited due to concerns that politicians may exploit it to target judges who rule against their
interests, risking judicial independence and efficiency.

3.3 JUDGE REMOVAL REQUIREMENT

The Indian judiciary, which is critical for upholding rights and constitutional values, requires
unbiased judges who are not incompetent. Despite the judiciary's key role, the case of K.
Veeraswami2 focuses on judicial accountability. The in-house committee can address
complaints, but only active separation of powers, as demonstrated in the Justice Pardiwala
case, operates as a check through impeachment. The requirement for a balanced approach to
judicial monitoring is critical, ensuring that impeachment procedures (Articles 124 and 217)
be applied cautiously, avoiding arbitrary usage by the legislature. The balance upholds
equality under Article 14, safeguarding the judiciary's credibility while addressing serious
wrongdoing or incapacity.

3.4 ANALYSING THE EFFICIENCY OF THE PROCEDURE OF

IMPEACHMENT

3.4 a) PRE AND POST INQUIRY ACT

Prior to the introduction of the Judges (Inquiry) Act, 1968, motions for judge removal in
India were handled informally by the Speaker. Members would alert the Speaker
confidentially, and after assessing the prima facie reason, the complaint would be referred
to the Chief Justices for examination. This strategy tried to address matters discreetly,

2 K. Veeraswami Vs. Union of India & Ors [1991] INSC 164

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 avoiding public disputes. However, it created questions about accountability and violated
natural justice norms.

To address these issues, the Judicial Enquiry Act of 1968 was passed under Article 124(5)
of the Indian Constitution. The Act requires a minimum of 100 Lok Sabha members or 50
Rajya Sabha members to sign a notice starting an Inquiry Committee. This council of
legal professionals reviews allegations against judges. If the committee finds no
wrongdoing, the case is dismissed; if wrongdoing is found, a report is forwarded to the
Speaker or Chairman for parliamentary approval. Impeachment requires a two-thirds
majority in both chambers, as well as the President's signature. This formalised procedure
is intended to strike a balance between judicial independence and accountability while
adhering to natural justice principles and constitutional safeguards.

The introduction of the Judges (Inquiry) Act in India, particularly the process involving
an ad hoc committee, reinforces the principle of the Separation of Powers. This ensures
that judges of the Supreme Court and High Court cannot be fired arbitrarily by the
executive or legislative branches. The ad hoc committee helps to strike a balance between
judicial independence and accountability. A significant decision, Sub-Committee On
Judicial vs Union Of India and Ors3, emphasises that the constitutional procedures for
impeaching a judge, from application admission to committee formation and conclusion
recording, go beyond conventional legislative hearings.

The Speaker's role in the Indian Parliament or State Legislature during the impeachment
of judges consists of two functions: initiating the motion and establishing an Inquiry
Committee, which is a statutory requirement, and the parliamentary aspect of passing the
motion and forwarding it to the President upon the judge's proven misbehaviour or
incapacity. The actions of the Speaker, including committee meetings, are subject to
judicial review. Article 121 of the Indian Constitution forbids politicians from
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questioning the conduct of judges. However, comments on the conduct of judges are
permitted in Parliament only once the committee has demonstrated misbehaviour or
incapacity. This constraint emphasises the importance of keeping inquiries and evidence
outside of Parliament in order to maintain the separation of powers.

3 1992 AIR 320

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 The previously stated premise was affirmed in the case of Sarojini Ramaswami vs Union
Of India & Ors4. In this case, Justice V. Ramaswami5 petitioned the court of law to have a
copy of the report delivered to the relevant Judge before it was submitted to the Speaker.

This is done to protect the Judge's right to seek court review of the report's finding of
'guilty,' if any.20 The court ruled that the Committee's operation constituted a judicial act,
not a parliamentary one. As a result, the aforementioned judge can get a copy of the
report prior to its submission to the Speaker and subject it to judicial examination.

The usage of the term 'may' in Article 124(5) in the State of Uttar Pradesh v. Joginder
Singh6 case does not imply that the phrase is merely enabling; rather, it provides
Parliament discretion in passing statutes pertaining to the prosecution and proof of
judicial misbehaviour or incapacity. The Judges (Inquiry) Act of 1968 is cited by the
Subcommittee on Judicial Accountability as the constitutional framework for the
dismissal procedure, which involves both judicial and political elements. While the
Committee for Inquiry investigates complaints against a judge, Parliament retains final
authority. Even if the committee deems a judge guilty, Parliament has the option of not
presenting an impeachment speech to the President, preventing the judge from being
removed. This method creates a compromise between judicial independence and
accountability, ensuring a nuanced approach to impeachment proceedings. 4

The term'may' in Article 124(2)(b) allows discretion to the Speaker or Chairman,

potentially affecting a judge's rights. Before admitting an impeachment motion, the
Speaker can exercise discretionary control by consulting appropriate individuals such as
the Chief Justice of India or the Attorney General, as established in the M. Krishna
Swami v/s Union Of India7 case. With judicial review authority, the court can examine
the material evidence considered by the Speaker, including the grounds expressed in the
motion and advice obtained. This checks the Speaker's actions and maintains justice in
the impeachment process, protecting the judge's rights.

M. Venkaiah Naidu dismissed an impeachment motion against CJI Dipak Misra in 2018
due to a lack of evidence. In comparison, the United Kingdom has a more complex

4 Writ Petition (civil) 514 of 1992.

5 IBid
6
[1964] 2 SCR 197 at 202
7
writ petition (civil) 149 of 1992

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system that allows for the removal of judges through legislative resolution. The "Judges
(Inquiry) Bill" of 2006 in India proposes a National Judicial Council (NJC) for
complaints, however its potential overburdening and external complaints raise worries
about judiciary independence. Establishing a review board similar to the one in the United
Kingdom could boost public trust and judiciary independence in India.

3.4 b) PRACTICAL HURDLES

1. RESIGNATION AND VOLUNTARY RETIREMENT

In Indian judicial history, judges facing impeachment frequently avoid the process due to
practical difficulties. When judges resign during impeachment hearings, like in the
example of Justice Dinakaran, committees are left without jurisdiction to rule. Voluntary
departure before the completion of proceedings allows judges to keep post-retirement
compensation in cases such as Justice Soumitra Sen's, where charges of embezzlement
were implicated. The impeachment procedure is inefficient since resignations or
retirements frequently precede final judgements, leaving allegations unresolved.

2. POLITICAL INFLUENCE
The widespread influence of political parties extends to different government
departments, potentially involving bribery for favourable outcomes and evasion of
processes. This influence is particularly noticeable in the impeachment of judges,
when political support, particularly from the ruling party, can render the procedures
useless, even if misbehaviour is shown by the inquiry committee. The case of Justice
Ramaswami exemplifies this, as the Congress party did not vote in Parliament during
the motion, preventing the two-thirds majority required for impeachment. Despite
evidence of corruption, the impartiality of judges on the investigative committee
means that judges cannot be impeached purely for acting against the intentions of
legislators, showing the intricate interplay between political influence and judicial
accountability.

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3. PROCEDURE FOR WHIP
The whip system, which influences members' votes based on party ideology, threatens
democratic rights in the case of judicial removal. It is maintained that MPs should not
be subject to Anti-Defection statutes in judicial removal proceedings, citing the case
of Justice Ramaswami, when a motion with prima facie evidence did not receive the
needed majority due to party whips. The proposed amendment seeks to prevent
political influence in the impeachment of judges, emphasising the importance of
protecting democratic rights and ensuring a fair procedure.

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 4. RECOMMENDATIONS AND CONCLUSION

In the context of judicial impeachment in India, it is critical to define misbehaviour and the
circumstances in which such marks should be considered. To guide the judiciary and
establish a consistent understanding of grounds for removal, Article 124(4) requires a full
demarcation. In addition to the existing judicial review, the installation of a board of
members becomes critical. This board would be in charge of analysing reports and deciding
whether they should be sent to the Speaker or Chairman, adding an extra layer of scrutiny to
the process.

Furthermore, the removal of the whip method during impeachment vote appears to be a
critical development. This phase intends to promote an environment in which legislators can
exercise their judgement freely, free of party restraints, by removing party-driven voting. The
removal of such political constraints is necessary to ensure the integrity of the impeachment
processes. When comparing legal frameworks, the claim that the current Inquiry Act is
superior than the Judges Inquiry Bill of 2006 presents interesting questions. It emphasises the
significance of a strong legal framework for dealing with judicial misconduct issues. Because
the existing Act is preferred, any modifications should build on its strengths and address its
weaknesses rather than adopting a totally new statutory structure.

Lastly, the request for impeachment of judges should be saved for extreme eventualities,
notably the rarest of rare cases involving proven egregious wrongdoing and incapacity. The
importance of striking a careful balance between the judiciary's independence and
accountability cannot be overstated. The suggested improvements, which include a clearer
definition of misbehaviour, the function of a review board, and the abolition of the whip
mechanism, all contribute to improving the integrity of India's judicial impeachment process.

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5. BIBLIOGRAPHY

PRIMARY SOURCES
1. CONSTITUTION OF INDIA
2. JUDGES (INQUIRY)ACT 1968

SECONDARY SOURCES

1. Anita Yadav, Critical Analysis of Removal of Justice in India, 1 NLSIU 1,8(2011).

2. Jayant Singh, Meaning and scope of “Misbehaviour in Removal of Judges: A Critique”1
INDIAN CONSTITUTIONAL LAW REVIEW 30,35(2017).
3. Judicial Tenure, Removal, Immunity and Accountability,1 THE INTERNATIONAL
INSTITUTE FOR DEMOCRACY AND ELECTORAL ASSISTANCE 1, 5(2014).
4. Rakesh Mohan Chaturvedi, Vice President Venkaiah Naidu rejects opposition notice for
CJI impeachment, THE ECONOMIC TIMES [(May 13,2021, 10.22AM ),
https://economictimes.indiatimes.com/.]

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