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Explainer: How a Sitting Judge Can Be Removed From Office

Roshni Sinha, The Wire, April 21, 2018

Today, some MPs initiated proceedings for the removal of the current chief justice of India by submitting a notice to the chairman of Rajya Sabha. A judge may be removed from office through a motion adopted by parliament on grounds of ‘proven misbehaviour or incapacity’. While the constitution does not use the word ‘impeachment’, it is colloquially used to refer to the proceedings under Article 124 (for the removal of a Supreme Court judge) and Article 218 (for the removal of a high court judge).

The constitution provides that a judge can be removed only by an order of the president, based on a motion passed by both houses of parliament. The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968. The Act sets out the following steps for removal from office:

  • Under the 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 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.
  • The motion for removal is required to be adopted by each house of parliament by: (i) a majority of the total membership of that house; and (ii) a majority of at least two-thirds of the members of that house present and voting. If the motion is adopted by this majority, the motion will be sent to the other house for adoption.
  • 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.

This article was originally published by PRS India.