Resignation and Removal of Judges from Office *

A Judge of the Supreme Court or of a High Court may, by writing under his hand addressed to the President, resign his office [Arts.124(2) and 217(a)], 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 [Art.124(4) and (5), and Art. 218].

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 misbehaviour' 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 than two-thirds of the members of each House present and voting [ Arts. 124(4) and 217(1) (b)] . 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.

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, will constitute a Committee of three members, one each from (i) the Chief Justice and other Judges of the Supreme Court, (ii) Chief Justices of the High Courts, and (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.

The Committee will frame definite charges against the Judge on the basis of which investigation is proposed to be held, and will have the powers of a Civil Court in respect of summoning persons for examination on oath, production of documents, etc. In a case of alleged physical or mental incapacity and where such an allegation in 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, 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 absolves the Judge of any misbehaviour 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 misbehaviour 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.

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 [Arts. 124(4) and 217(1)(b)].

Before the procedure was laid down by law, 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 had satisfied himself 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 took 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 case, 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 [See the Evidence of M.N. Kaul, former Secretary of Lok Sabha, given before the Joint Committee on the Judge (Inquiry) Bill, 1964].

[ *Source: Page No. 942 to 943 of Practice and Procedure of Parliament. By Dr. Subhash C. Kashyap; Fourth Edition 1991. Published for Lok Sabha Secretariat ]