Ambiguity in the Process of Removing Judges in India: Does It Guarantee Judicial Independence?

Written by: Adv.Rashi Parashar,  (LL.M 2023-2024) National Law University Odisha, (LL.B.2020-2020) Savitribai Phule Pune University 

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In India, the removal of Supreme Court and High Court judges is governed by the  Constitution, designed to balance judicial independence with accountability. Article 124(4) specifies the removal process for Supreme Court judges, while Article  217(1)(b) applies to High Court judges. Judges can be removed on grounds of proven misbehaviour or incapacity, which covers misconduct, corruption, or physical/mental incapacity. The process begins with a notice of motion, requiring the support of at least 100 members in the Lok Sabha or 50 in the Rajya Sabha. An investigative committee, typically composed of a Supreme Court judge, a High Court Chief Justice, and a distinguished jurist, then examines the allegations. If the committee finds the charges valid, the motion requires a two-thirds majority in each house of Parliament to proceed. Finally, the President's assent is required to remove the judge. 

The process of removing a judge in India's higher judiciary is inherently political because it involves Parliament and requires the support of elected politicians. The Constitution mandates that the removal process begin with a notice of motion signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha. Given that these members have political affiliations and often represent specific parties or ideologies, the potential for political bias is significant. 

Moreover, the final vote on the motion requires not just an absolute majority but also a two-thirds majority of the members present and voting in both houses of Parliament. This step further involves politicians whose decisions might be influenced by party loyalties, political philosophy, or other political considerations. As such, while the process aims to ensure judicial accountability and independence, it is unlikely to be completely apolitical due to the involvement of politicians who may carry identifiable political biases. Thus, the removal process, by its design and execution, can be influenced by political dynamics and interests. 

Since India's independence, six judges have faced impeachment attempts, but none have been removed from office. Justice V Ramaswami, Chief Justice of the Punjab and Haryana High Court, was the first judge to face impeachment in 1991, but the motion failed despite the Inquiry Committee finding him guilty on 11 of 14 charges. 

In 2011, proceedings against Sikkim High Court Judge PD Dinakaran ended with his resignation, citing a lack of faith in the impartiality of the Inquiry Committee. That same year, impeachment against Justice Soumitra Sen of the Calcutta High Court reached the point of a successful vote in the Rajya Sabha, but he resigned before the Lok Sabha vote. In 2015, Justice JB Pardiwala faced backlash for 'casteist' remarks but avoided impeachment by retracting his comments. Also in 2015, Justice SK Gangele was cleared of sexual misconduct allegations by an Inquiry Committee. 

Attempts to impeach Justice CV Nagarjuna Reddy in 2016 and 2017 for alleged casteist acts failed due to a lack of support before an Inquiry Committee could be formed. These cases reflect the complexity and political challenges inherent in India's impeachment process for judges. 

The process for removing judges in India is inherently complex, involving a stringent legal framework outlined in the Indian Constitution and the Judges Inquiry Act, 19685, which aims to ensure judicial independence by requiring high levels of scrutiny and political consensus in Parliament. A motion to remove a judge must secure significant support from both the Lok Sabha and Rajya Sabha, with a majority of the total membership and a two-thirds majority of those present and voting in each house, making it a highly political endeavour. This high threshold is intended to deter arbitrary or politically motivated removals, thus safeguarding judicial independence. However, the same rigour can create obstacles for holding judges accountable for misconduct, raising concerns about potential political interference, impacting judicial efficiency, 

and undermining public confidence in the judiciary. The process's politicised nature, coupled with the difficulty in achieving accountability, can create a sense of judicial unaccountability and affect public trust in the system's capacity for self-regulation. 

The terms "misbehaviour" and "incapacity" in the context of removing judges in India are vague and subject to interpretation, which leads to uncertainty and potential inconsistency in the impeachment process. The lack of clear definitions creates scope for varying interpretations and risks of political manipulation, which can compromise the objectivity and predictability of the process. This ambiguity, while intended to protect judicial independence by preventing arbitrary removals, can inadvertently pressure judges to align with political or popular expectations, affecting their impartiality. Moreover, proving misconduct or incapacity becomes challenging due to the broad scope of these terms, potentially allowing judges engaging in unethical behaviour to avoid accountability. The Inquiry Committees play a crucial role in interpreting these terms on a case-by-case basis, but differing interpretations can lead to unpredictability. Legal experts suggest that clearer guidelines or definitions could reduce ambiguity and promote a more consistent approach, balancing judicial independence with accountability. 

The process for removing judges in India is complex, with high thresholds and vague definitions of "misbehaviour" and "incapacity," which can lead to susceptibility to political influence. To create a more effective and less rigid system, the introduction of an independent committee for reviewing judicial conduct is proposed. This committee would comprise experienced legal professionals, former judges, and neutral experts to oversee complaints and assess judges' behaviour objectively.

A clear definition of "misbehaviour" and "incapacity" would reduce ambiguity and ensure consistent application across the judiciary, encompassing various forms of misconduct, such as ethical violations, abuse of power, and corruption. The committee should implement a streamlined process for complaint intake and ensure a transparent and accountable review process, while balancing judicial independence and accountability. 

This approach would allow judges to operate without undue political pressure while 

being held accountable for misconduct, ultimately promoting a fairer, more reliable, 

and a trustworthy judicial system. 

1 INDIAN CONST.art. 124,cl.4. 

2 INDIAN CONSTI.art.217.cl.1(b). 

3 The politics of impeachment, or how not to 'save' the judiciary (no date) The Wire. Available at:https://thewire.in/law/the-politics-of-impeachment-or-how-not-to-save-the-judiciary (Accessed: 05 May 2024). 

4 Emmanuel, M.Impeachment of judges: A rigorous process and a history of fruitless attempts, Bar 

- and Bench Indian Legal news. Available at:https://www.barandbench.com/columns/impeachment- judges-rigorous-process (Accessed: 05 May 2024). 

5 Explainer: How a sitting judge can be removed from office (no date) The Wire. Available at: https://thewire.in/law/explainer-impeachment-cji-judge-removal-constitution (Accessed: 06 May 2024).