Opposition submits impeachment motion against CJI Dipak Misra: Legal procedure to remove SC judge is a long-drawn one

On Friday, an impeachment motion was submitted to the Vice-President of India calling for the impeachment of Chief Justice of India Dipak Misra. This article will briefly explain the circumstances in which a judge may be impeached and the process for the same.

Judges of the High Courts and Supreme Court of India serve in accordance with their mandate under the Constitution. Although the warrant confirming their appointment is issued by the President of India, they do not serve at the pleasure of the President. Therefore, the President may not dismiss a judge.

A judge of the Supreme Court may, however, be dismissed from office under a procedure prescribed by the Constitution. Article 124 (4) and Article 124 (5) of the Constitution speak of the way a judge of the Supreme Court may be impeached. The provisions state as follows:

File image of the Supreme Court of india. Reuters

File image of the Supreme Court of india. Reuters

"(4) 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 thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4)"

Accordingly, to impeach a judge, there needs to be consent of two-thirds of the members of each House of Parliament. This can happen after the "misbehaviour" of a judge has been proved in accordance with the law laid down by Parliament in this regard.

The Parliament has made a law for the purposes of implementing Article 124 (4). This is known as the Judges (Inquiry) Act, 1968.

Section 3(1) of the Act states:

"(1) If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,-
(a) in the case of a notice given in the House of the People, by not less than one hundred members of that House;
(b) in the case of a notice given in the Council of States, by not less than fifty members of that Council; then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him , either admit the motion or admit the same."

If 50 members of the Rajya Sabha, as has happened on Friday, give a notice of the impeachment motion to the Vice President of India, who is the ex-offico Chairman of that House, the process of impeachment shall commence.

Section 3(2) of the Act then requires that a committee be constituted by the Chairman of the Rajya Sabha to investigate into the matter. This Committee must comprise of three members as follows:

"(a) one shall be chosen from among the Chief Justices and other Judges of the Supreme Court;

(b) one shall be chosen from among the Chief Justices of the High Courts; and

(c) one shall be a person who is, in the opinion of the Speaker or , as the case may be, the Chairman, a distinguished jurist:"

So, the committee must be one where there is a judge of the Supreme Court, a Chief Justice of a High Court and a distinguished jurist. The committee shall be selected and constituted by the Chairman of the Rajya Sabha in this case, as the motion has been tabled in the Rajya Sabha. It is for this committee to draw up the definite charges against the judge concerned. The judge will be permitted to file a written statement in defence (as per Sections 3(3) and 3(4) of the Act) and under Section 3(9) of the Act, the government may, at the request of the Chairman, appoint an advocate to conduct the case against the judge.

The Committee under Section 3 has all the powers of a civil court and may receive evidence and summon witnesses, along with ancillary powers.

Section 4 of the Act requires that the report of the Committee now be placed before the Rajya Sabha. If the committee finds the judge not guilty, then under Section 6(1) of the Act, no steps will be taken. If the committee finds the judge guilty, then the motion of impeachment, along with the report of the committee will be taken up for consideration.

Then, the motion must be adopted by both Houses in accordance with Article 124(4) of the Constitution before a judge can be impeached.

In effect, there should ideally be a procedure that is close to a full trial before the Rajya Sabha, with the members of the Rajya Sabha acting as jurors and finally by a two-thirds vote convicting a judge of misbehaviour. This conviction is subject to confirmation by the Lok Sabha. Only if the Lok Sabha confirms the decision can the judge be removed from office.

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Updated Date: Apr 20, 2018 22:26 PM

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