Explainer: Mechanisms to investigate charges against a Supreme Court judge

Roshni Sinha - April 25, 2019

This week, an in-house inquiry committee was constituted to consider a complaint against the current Chief Justice of India. Over the years, three mechanisms have evolved to investigate cases of misconduct, including cases of sexual harassment, misbehaviour or incapacity against judges. In this blog, we summarise the procedure for investigating such charges against judges of the Supreme Court.

In-house procedure (1999): The Supreme Court has an in-house process to deal with allegations against a judge relating to the discharge of his judicial function, or with regard to his conduct or behaviour outside court.
Sexual harassment guidelines: In 2013, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Subsequently, the Supreme Court framed regulations for protection of women against sexual harassment in the Supreme Court. Under the regulations, the CJI is required to constitute a Gender Sensitisation and Internal Complaints Committee (GSICC). The GSICC will include 7-13 members including: (i) one or two judges of the Supreme Court, and (ii) up to two outside members (having experience in social justice, women empowerment, gender justice, among others) to be nominated by the CJI. The Regulations require the majority of the members of GSICC to be women. As of 2018, the GSICC has received 13 complaints, out of which 10 have been disposed of.
Removal for proven misbehaviour or incapacity: Charges of misconduct may also be investigated in the context of proceedings for removal of a judge. Article 124(4) of the Constitution of India provides that a judge can be removed only by Parliament on the basis of a motion in either the Lok Sabha or Rajya Sabha. The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968. Till date, no judge of the higher judiciary has been impeached under this process.

Table 1: Process for investigation of charges against a Supreme Court judge

	In-house Procedure of Supreme Court	2013 SC Sexual Harassment Regulation	Removal Proceedings
Who may file a complaint	Complaint of misconduct may be filed by any person.	Written complaint of sexual harassment by a woman.	Signed notice by at least 100 members of the Lok Sabha, or 50 members of the Rajya Sabha on charges of misbehaviour or incapacity by a judge.
Persons to whom complaint must be filed	CJI or President of India	GSICC	Presiding Officer of the relevant House of Parliament
Preliminary Inquiry	The CJI is required to determine whether the complaint is either frivolous or serious. If the complaint is frivolous or relates to a pending case, no further action will be taken. If the CJI finds that the complaint involves serious misconduct or impropriety, he will seek the response of the concerned Judge. Based on the response and supporting materials, if the CJI finds that the complaint needs a deeper probe, he will constitute an inquiry committee.	If the GSICC is satisfied that the complaint is genuine, it will constitute a three-member Internal Sub-Committee to conduct an inquiry into the complaint.	If the notice is in order, the Presiding Officer will constitute a three-member committee to investigate the complaint.
Composition of Inquiry Committee	The Committee will comprise three judges including a Judge of the Supreme Court and two Chief Justices of other High Courts.	The Committee will comprise members of the GSICC or persons nominated by the GSICC, with majority members being a woman and an outside member.	The committee will comprise a Supreme Court judge, Chief Justice of a High Court, and a distinguished jurist.
Time limit for submission of inquiry report	No specific time limit provided.	To be completed within 90 days of the constitution of the Internal Sub-Committee, and forwarded to the GSICC within 10 days of completion.	To be submitted to the presiding officer within 90 days.
Findings of the Committee	The Committee may report to the CJI that: 1. there is no substance in the allegation made, or, 2. there is substance in the allegations but the misconduct is not of such serious nature as to warrant removal, or, 3. the misconduct is serious enough to initiate removal proceedings against the judge.	If the committee concludes that the allegation has been proved, it will submit its report to the GSICC to pass appropriate orders within 45 days. If more than two thirds of the GSICC members differ from the conclusion of the Committee, it will, after hearing the complainant and the accused, record its reasons for differing and pass orders.	After concluding its investigation, the Committee will submit its report to the presiding officer, who will lay the report before the relevant House.
Action taken upon submission of report	If the finding is under category (2) above, the CJI may call and advise the Judge accordingly and direct that the report be placed on record. If the finding is under category (3) above, the CJI may ask the judge to resign or seek voluntary retirement. If the judge refuses to resign, the CJI may decide to not allocate any judicial work to the judge concerned. Further, the CJI may inform the President of India and the Prime Minister of his reasons for the action taken and forward a copy of the inquiry report to them.	The GSICC has the power to: (i) to pass an order of admonition (reprimand), which may also be published in the court precinct, or (ii) pass an order to prohibit the accused from harassing or communicating with the complainant, or (iii) pass any other order to end the sexual harassment faced by the complainant. GSICC may also recommend to the CJI to pass orders against the accused, including: (i) prohibiting entry of the accused into the Supreme Court for up to a year, or (ii) filing a criminal complaint before the concerned disciplinary authority governing the accused.	If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated. The motion is required to be adopted by each House by a majority of the total membership of that House and a majority of at least two-thirds of the members of that House present and voting. 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.
Process for Appeals	No specific provision.	Any aggrieved person may make a representation to the CJI to set aside/modify the orders passed by the GSICC. The CJI also has the power to issue any other orders in order to secure justice to the victim.	No specific provision.

Sources: Report of the Committee on In-House Procedure, December 1999, Supreme Court of India; Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013; Article 124(4), Constitution of India; Judges Inquiry Act, 1968 read with the Judges Inquiry Rules, 1969; PRS.

Parliament

How India will elect its next President

Itika Singh , Mridhula Raghavan - June 7, 2022

Mr. Ramnath Kovind completes his tenure as President in July. With the Election Commission of India expected to notify the election dates this week, we look at how India will elect its next President.

As the Head of the State, the President is a key part of Parliament. The President calls the two Houses of Parliament into session on the advice of the Council of Ministers. A Bill passed by the Lok Sabha and Rajya Sabha does not become a law unless assented to by the President. Further, when Parliament is not in session, the President holds the power to sign a law with immediate effect through an Ordinance.

Who elects the President?

The manner of election of the President is provided in Article 55 of the Constitution. Members of Parliament and Members of Legislative Assemblies (MPs and MLAs) including elected representatives from the Union Territories (UTs) of Delhi and Puducherry form the electoral college, which elects the President. At least 50 elected representatives must propose a candidate, who must then be seconded by 50 other electors to run for the President's office. Members of Legislative Councils and the 12 nominated members of Rajya Sabha do not participate in the voting process.

The history behind having proposers and seconders
The requirement of having a certain number of electors propose a candidate was introduced after the experience of the first five Presidential elections. It was common then for several candidates to put themselves up for election when they did not have a remote chance of getting elected. In the 1967 Presidential elections, 17 candidates contested, but nine of them did not win a single vote. This repeated again in the 1969 elections, when out of 15 candidates, five did not secure any votes.

To discourage the practice, candidates had to secure at least 10 proposers and seconders each to contest the elections from the 1974 election onwards. A compulsory security deposit of Rs 2,500 was also introduced. The changes were brought in through an amendment to the Presidential and Vice-Presidential Act, 1952.

In 1997, the Act was further amended to increase the security deposit to Rs 15,000 and the minimum number of proposers and seconders to 50 each.

How are the votes calculated?

The Presidential election uses a special voting to tally the votes. A different voting weightage is assigned to an MP and an MLA. The value of each MLA's vote is determined based on the population of their state and the number of MLAs. For instance, an MLA from UP has a value of 208 while an MLA from Sikkim has 7 (see Table 1). Due to a Constitutional Amendment passed in 2002, the population of the state as per the 1971 census is taken for the calculation.

The value of an MP's vote is the sum of all votes of MLAs across the country divided by the number of elected MPs.

How will the numbers look in 2022?

In the 2017 Presidential elections, electors from 31 states and the UTs of Delhi and Puducherry participated. However, in 2019, with the Jammu and Kashmir (J&K) Reorganization Act, the number of states were reduced to 30. The J&K Assembly was dissolved as per the Act and a new legislature for the UT of J&K is yet to be reconstituted. UTs with legislatures were not originally part of the electoral college for the election of the President. The Constitution was amended in 1992 to specifically include the UTs of Delhi and Puducherry. Note that for MLAs from J&K to participate in future Presidential elections, a similar Constitutional amendment would be required to be passed by Parliament.

Based on the assumption that J&K is not included in the 2022 Presidential election, the total number of votes of MLAs in 2022 elections will have to be adjusted. The 87 Jammu and Kashmir MLAs must be removed from the total number of MLAs of 4,120. Jammu and Kashmir’s contributing vote share of 6,264 must also be reduced from the total vote share of 549,495. Adjusting for these changes, 4,033 MLAs will participate in the 2022 elections and the combined vote share of all MLAs will add up to 543,231.

Table 1: The value of votes of elected MLAs of different states at the 2017 Presidential Election

Name of State	Number of Assembly seats	Population (1971 Census)	Value of vote of each MLA	Total value of votes for the state (B x D)
A	B	C	D	E
Andhra Pradesh	175	2,78,00,586	159	27,825
Arunachal Pradesh	60	4,67,511	8	480
Assam	126	1,46,25,152	116	14,616
Bihar	243	4,21,26,236	173	42,039
Chhattisgarh	90	1,16,37,494	129	11,610
Goa	40	7,95,120	20	800
Gujarat	182	2,66,97,475	147	26,754
Haryana	90	1,00,36,808	112	10,080
Himachal Pradesh	68	34,60,434	51	3,468
Jammu and Kashmir	87	63,00,000	72	6,264
Jharkhand	81	1,42,27,133	176	14,256
Karnataka	224	2,92,99,014	131	29,344
Kerala	140	2,13,47,375	152	21,280
Madhya Pradesh	230	3,00,16,625	131	30,130
Maharashtra	288	5,04,12,235	175	50,400
Manipur	60	10,72,753	18	1,080
Meghalaya	60	10,11,699	17	1,020
Mizoram	40	3,32,390	8	320
Nagaland	60	5,16,449	9	540
Odisha	147	2,19,44,615	149	21,903
Punjab	117	1,35,51,060	116	13,572
Rajasthan	200	2,57,65,806	129	25,800
Sikkim	32	2,09,843	7	224
Tamil Nadu	234	4,11,99,168	176	41,184
Telangana	119	1,57,02,122	132	15,708
Tripura	60	15,56,342	26	1,560
Uttarakhand	70	44,91,239	64	4,480
Uttar Pradesh	403	8,38,49,905	208	83,824
West Bengal	294	4,43,12,011	151	44,394
NCT of Delhi	70	40,65,698	58	4,060
Puducherry	30	4,71,707	16	480
Total	4,120	54,93,02,005		5,49,495

Source: Election Commission of India (2017); PRS.

The value of an MP’s vote correspondingly will change from 708 in 2017 to 700 in 2022.

Value of one MP's vote = Total value of all votes of MLAs = 543231 = 700
Total number of elected MPs 776

Note that the value of an MP’s vote is rounded off to the closest whole number. This brings the combined value of the votes of all MPs to 543,200 (700 x 776).

What is the number of votes required to win?

The voting for the Presidential elections is done through the system of single transferable vote. In this system, electors rank the candidates in the order of their preference. The winning candidate must secure more than half of the total value of valid votes to win the election. This is known as the quota.

Assuming that each elector casts his vote and that each vote is valid:

Quota = Total value of MP’s votes + Total value of MLA’s votes + 1
2

= 543200 + 543231 +1 = 1086431 +1 = 543,216
2 2

The anti-defection law which disallows MPs from crossing the party line does not apply to the Presidential election. This means that the MPs and MLAs can keep their ballot secret.

The counting of votes takes place in rounds. In Round 1, only the first preference marked on each ballot is counted. If any of the candidates secures the quota at this stage, he or she is declared the winner. If no candidate secures the quota in the first round, then another round of counting takes place. In this round, the votes cast to the candidate who secures the least number of votes in Round 1 are transferred. This means that these votes are now added to the second preference candidate marked on each ballot. This process is repeated till only one candidate remains. Note that it is not compulsory for an elector to mark his preference for all candidates. If no second preference is marked, then the ballots are treated as exhausted ballots in Round 2 and are not counted further.

The fifth Presidential election which elected Mr. VV Giri is the only instance when a candidate did not secure the quota in the first round. The second preference votes were then evaluated and Mr. Giri secured 4,20,077 of the 8,36,337 votes and was declared the President.

The only President of India to win unopposed
India’s sixth President, Mr. Neelam Sanjiva Reddy who served from 1977 to 1982 was the only President to be elected unopposed. 37 candidates had filed their nominations for the 1977 elections, however on scrutiny, the nomination papers of 36 candidates were rejected by the Returning Officer and Mr. Reddy was the only candidate standing.

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Explainer: Mechanisms to investigate charges against a Supreme Court judge

How India will elect its next President

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