Can controversial judges be removed? The process, explained

Who can remove a sitting judge? What sort of disciplinary action can be initiated against judges? To find out, read on.

A controversial speech by a sitting Allahabad high court judge has sparked a political row with opposition parties urging CJI Sanjiv Khanna to take cognisance of the issue.

Recent incidents have sparked calls for disciplinary action, and even sacking of a judge.

Video clips of justice Shekhar Kumar Yadav speaking at the regional convention of the Vishwa Hindu Parishad’s legal cell in Prayagraj on the Uniform Civil Code on Sunday went viral in which justice Yadav could be heard making a number of controversial comments about majority rule in India and the Muslim community, and allegedly used slurs.

The incidents has sparked calls for disciplinary action, and even sacking of the judge. Is that possible?

Legal experts, however, believe that the ruling party would have a role to play in any action against the sitting judge. In other words, the BJP will have to initiate action against the HC judge, which may appear improbable at the moment.

Process explained

The Chief Justice of India (CJI) can constitute a committee to examine the role of an errant judge at a high court or even propose disciplinary action against a sitting judge to the chief justice of the concerned court under the Judges Inquiry Act, 1968.

“The CJI and Supreme Court have powers to recommend action against judges found guilty of misconduct, and I believe the case of Justice Shekhar Kumar Yadav is a fit case of such action,” senior advocate Prashant Bhushan told this reporter.

However, only the President of India can remove a sitting judge from office if the judge is found to be misbehaving or incapacitated.

Under the Judges Inquiry Act, an impeachment motion may originate in either house of parliament. To initiate proceedings: (i) at least 100 members of Lok Sabha may give a signed notice to the speaker, or (ii) at least 50 members of Rajya Sabha may give a signed notice to the chairman.

The speaker or chairman, in turn, may consult individuals and examine relevant material related to the notice. Based on this, he or she may decide to either admit the motion or refuse to admit it.

• If the motion is admitted, the speaker or chairman (who receives it) will constitute a three-member committee to investigate the complaint. It will comprise: (i) a Supreme Court judge; (ii) chief justice of a high court; and (iii) a distinguished jurist. The committee will frame charges based on which the investigation will be conducted. A copy of the charges will be forwarded to the judge who can present a written defence.
• After concluding its investigation, the committee will submit its report to the speaker or chairman, who will then lay the report before the relevant house of parliament. If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated.
• Once the motion is adopted in both houses, it is sent to the president, who will issue an order for the removal of the judge.

Coming back to the judge, his presence at a VHP meeting, has raised eyebrows. While there is no rule against judges joining political parties—unlike officials—convention dictates that most judges who retire from office join political parties.

Former CJI, Ranjan Gogoi, was nominated to the Rajya Sabha by President of India in 2020, reportedly at the behest of the BJP. In the 1980s, former CJI Ranganath Misra joined Congress party after his retirement and was a Rajya Sabha member from 1998 to 2004 from Congress party. Justice KS Hegde, after resigning from the position of a judge in the Supreme Court, joined Janata Party and won a Lok Sabha seat from Bangalore South constituency.

Justice Baharul Islam, also a former Supreme Court judge, joined Congress party after retirement. Justice Vijay Bahuguna, former judge of the Allahabad high court, joined Congress party and became the Chief Minister of Uttarakhand. Subsequently, he joined BJP.