Allahabad High Court judge Justice Shekhar Kumar Yadav is in the eye of a storm following his remarks at an event organised by the Vishwa Hindu Parishad — a Hindu fundamentalist group. Shekhar Kumar declared that India will run “as per majority wishes”, used pejorative terms against Muslims, and said their children can't be tolerant and generous because they're exposed to animal slaughter. The Supreme Court has taken note of the speech and sought details, and several Opposition MPs have started the process of removing the judge, as per Article 218 of the Indian Constitution.
The process of removing a High Court or Supreme Court judge from their position — or impeachment as it's colloquially referred to — is long and complicated. And in the history of independent India, no judge has been removed, although the process has been started against several judges. Article 124 and 218 of the Constitution describe how a judge can be removed from their position, for the Supreme Court and High Court respectively.
Article 124 (4) says: "A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proven misbehaviour or incapacity."
Article 218 applies the same rule to a judge of the High Court.
Further, the Constitution provides for the Parliament to decide how this process will be followed, and that's where The Judges (Inquiry) Act, 1968, comes in. This law essentially regulates the procedure for the investigation and proof of the misbehaviour or incapacity of a judge of the Supreme Court or a High Court.
Process set down by The Judges (Inquiry) Act, 1968
Step 1: The procedure can start in either the Lok Sabha or the Rajya Sabha. At least 100 Lok Sabha MPs, or at least 50 Rajya Sabha MPs, have to sign a notice for a motion to remove a judge, and present it before the Speaker or the Chairperson, respectively.
Step 2: The Lok Sabha Speaker or the Rajya Sabha Chairperson can then decide to admit the motion or refuse to do so.
Step 3: If the Speaker or Chairperson admits the motion, they will then have to constitute a committee to look into the allegations against the judge. The committee must include:
One Supreme Court judge
One Chief Justice of a High Court
One distinguished jurist
Step 4: In case such a motion is moved in both Houses of Parliament on the same day, a committee can only be formed if both these motions are accepted. The Speaker and the Chairperson will then have to jointly decide on the make-up of the committee.
Step 5: The Committee then has the job of framing the charges against the judge.
Step 6: These charges have to be sent to the judge for their written response.
Step 7: The committee will then present its report and the judge’s written response to the Parliament, and the Speaker or Chairperson will lay the report in the House. If the report finds misbehaviour or incapacity, then the House will debate and vote on it.
Step 8: Before the vote, the judge can present their defence on the floor of the House.
Step 9: For the motion to pass, it needs a “Special Majority” in both Houses of Parliament. That is, it needs the support of more than half the total membership of the House, and at least two-thirds of the members who are present and voting.
Step 10: The motion is then sent to the President of India, who will give the order for removal.
So far, only one judge has reached Step 8. Justice Soumitra Sen of the Calcutta High Court was accused of misappropriation of funds, and went on to defend himself on the floor of the Rajya Sabha. The Rajya Sabha passed the motion for his removal but before the motion could be taken up for voting in the Lok Sabha, the judge chose to resign.
Judiciary’s in-house procedure
While Parliamentary action is necessary for the removal of a judge of the Higher judiciary, the whole thing can also be initiated by the judiciary itself. In 1999, the Supreme Court adopted guidelines for an “in-house procedure”, and these guidelines were made public in 2014. The in-house procedure is also seen as a way to avoid the embarrassment of impeachment.
A complaint against a sitting judge of a High Court can be received by either the Chief Justice of a High Court, the Chief Justice of India (CJI), or the President. According to the in-house procedure:
Step 1: If the Chief Justice of a High Court receives a complaint against a High Court judge, they have to examine whether the complaint is frivolous or has merit. If the complaint has merit, the Chief Justice of the High Court has to file the complaint, ask the judge against whom the complaint has been made for a response, and decide whether action has to be taken on the basis of this response. Whatever the Chief Justice decides, they have to inform the CJIabout the complaint, the response, and their reading of the situation.
If the President of India receives a complaint, they have to forward it to the CJI. In this case, or if the CJI receives the complaint directly, the CJI will have to do the first check into the merit of the complaint. If they find that the complaint deserves to be heard, they must then forward it to the Chief Justice of the High Court that the judge belongs to, who will then follow the process as outlined above.
Step 2: Once the case comes back to the CJI from the High Court, the CJI has to decide if further probe is required. If so, the CJI has to constitute a three-member committee, consisting of two Chief Justices of High Courts other than the HC of the judge who is facing the complaint; and one High Court judge.
Step 3: This committee has to then decide whether the complaint is true, and tell the CJI whether the complaint is:
Serious and requires removal of the judge
True, but doesn't require removal of the judge
False
Step 4: If the committee finds that the judge needs to be removed, the CJI then asks the judge in question to resign. If the issue is not so serious as to necessitate removal of the judge, the CJI can speak to the judge and advise them.
Step 5: If the judge refuses to resign, the CJI has to ask the Chief Justice of the High Court not to give them any cases. The CJI also needs to inform the Prime Minister and President, asking them to start Parliamentary proceedings for removal.
Past cases
No judge has been removed by the President in the history of India. However, either in-house procedure, or Parliamentary process for removal, or both, have been started against several judges.
Justice V Ramaswami, Punjab and Haryana High Court, 1993: The first judge to face removal proceedings in independent India, Justice V Ramaswami was accused of spending exorbitantly on his official residence as the Chief Justice of the Punjab and Haryana High Court in media reports. The motion to remove him was moved in Lok Sabha by BJP and other parties, and the Speaker-appointed committee found him guilty of 11 out of 14 charges. However when the motion was put to vote, all Congress MPs abstained from voting, and the motion failed.
Justice Soumitra Sen, Calcutta High Court, 2011: Accused of misappropriation of funds, Justice Soumitra Sen faced an in-house procedure set up by the then-CJI KG Balakrishnan in 2007. When he refused to resign despite being found guilty, the CJI recommended his impeachment to the then Prime Minister Manmohan Singh in 2008. The Ministry of Law then obtained a legal opinion, and in 2009, an impeachment motion was moved against Justice Soumitra Sen in the Rajya Sabha. The motion passed the Upper House, and before the Lok Sabha could vote on it, Justice Sumitra Sen resigned.
Justice PD Dinakaran, Sikkim High Court, 2011: When he was being considered for elevation to the Supreme Court in 2009, Justice PD Dinakaran faced allegations of corruption. In 2011, MPs in Rajya Sabha moved a motion for his removal, and the Chairman Hamid Ansari appointed a three-member committee to investigate the allegations. The committee consisted of Supreme Court Justice Aftab Alam, Karnataka High Court Chief Justice JS Khehar, and senior advocate PP Rao. Justice Dinakaran objected to the presence of PP Rao in the committee, citing personal bias, and went to the Supreme Court. A bench headed by Justice GS Singhvi agreed to remove Rao from the committee, but did not agree to quash the charges framed against Dinakaran by them. Following this, Justice Dinakaran resigned, and alleged that a fair process was not followed because he was Dalit.
Justice JB Pardiwala, Gujarat High Court, 2015: During the hearing in a sedition case, Justice Pardiwala commented that ‘reservation has stalled the progress of the country’. MPs in Rajya Sabha moved a motion for removal against him for casteist remarks. The judge then expunged the remarks for his judgement, and the motion did not go forward.
Justice SK Gangele, Madhya Pradesh High Court, 2015: Sexual harassment allegations were made against the judge by a woman employee of the Madhya Pradesh Higher Judicial Services. The CJI constituted an in-house committee to look into the case, and the committee said the material they had was insufficient to prove a charge of sexual harassment. Meanwhile, a motion was moved in the Rajya Sabha for removal of the judge, and the committee formed by the Chairman to look into the allegations concluded that there was no sexual harassment.
Justice CV Nagarjuna Reddy, Andhra Pradesh and Telangana High Court, 2016 and 2017: There were two motions for removal of the judge moved in the Rajya Sabha, once in 2016 and once in 2017. The judge was accused of victimising a Dalit lower court judge, being casteist, and amassing wealth. However both motions did not move forward as several MPs who initially supported the motions later withdrew it, bringing the number of signatories down below 50.
Justice Dipak Misra, Chief Justice of India, 2018: In an unprecedented move, four Supreme Court judges addressed a press conference in January 2018, accusing the then CJI Dipak Misra of arbitrarily assigning cases to various judges, and showing preferential treatment to some judges. Later that year, a motion was moved by Opposition MPs in Rajya Sabha for his removal. However, Venkaiah Naidu, who was the Chairman of the House, refused to accept the motion claiming that the allegations were about internal administration and not misbehaviour.
Justice SN Shukla, Allahabad High Court, 2018: Accused of involvement in a medical college admission scam, Justice SN Shukla faced an in-house procedure and was asked to resign by the then CJI Dipak Misra in 2018. However, the judge refused to do so, prompting the CJI to notify the Allahabad High Court Chief Justice not to assign any cases to him. Further, the CJI recommended his impeachment to the Prime Minister — but the government did not take it up in Parliament. The judge neither resigned nor heard any cases until his retirement in 2020. In 2023, the CBI filed a corruption case against him.