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

First session of 17th Lok Sabha: What to expect

Ankita Nanda , Anurag Vaishnav - May 29, 2019

The results of General Election 2019 were declared last week concluding the process for electing the 17^th Lok Sabha. Immediately after the results, the previous Lok Sabha was dissolved. The next couple of days will witness several key events such as swearing-in ceremony of the Prime Minister and Cabinet, and the first session of the 17^th Lok Sabha. In the first session, the newly elected MPs will take their oaths, the Speaker of the 17^th Lok Sabha will be elected, and the President will address a joint sitting of Parliament. In this blog, we explain the process and significance of the events that will follow in the days to come.

Key Events in the First Session of the 17^th Lok Sabha

The Bharatiya Janta Party has emerged as the single largest party and the leader of the party will be sworn-in as the Prime Minister. As per Article 75(1) of the Constitution, the other ministers are appointed by the President on the advice of the Prime Minister. The 91^st Amendment to the Constitution limits the total size of the Council of Ministers to 15% of the total strength of the House (i.e., 81 Ministers). As per media reports, swearing-in of the Council of Ministers is scheduled for May 30, 2019.

How is the schedule for first session decided?

The 17^th Lok Sabha will commence its first session in the first week of June. The exact date of commencement of the first session and the schedule of key events in the session, including the date of President’s address, is decided by the Cabinet Committee on Parliamentary Affairs. This Committee will be set up after the swearing in of the Council of Ministers. The previous Lok Sabha had commenced on June 4, 2014 and its first session had six sitting days (June 4, 2014 to June 11, 2014).

Who presides over the first session?

Every proceeding of the House is presided by a Speaker. The Office of the Speaker becomes vacant immediately before the first meeting of a new Lok Sabha. Therefore, a temporary speaker, known as the pro-tem Speaker, is chosen from among the newly elected MPs. The pro-tem Speaker administers oath/affirmation to the newly elected members, and also presides over the sitting in which the new Speaker is elected. The office of the pro-tem Speaker ceases to exist when the new Speaker is elected.

How is the pro-tem speaker chosen?

Once the new government is elected, a list containing the names of the senior-most members of the House is prepared. The seniority is decided by total tenure as a member of either Lok Sabha or Rajya Sabha. The Prime Minister then identifies a Member from the list who acts as the Speaker pro-tem. Three other members are also identified before whom other members may take oath/affirmation.

How is the new Speaker chosen?

Any member may give notice of a motion that another Member be chosen as the Speaker of the House. The motions are then moved and voted upon. After the results are announced, the Speaker-elect is felicitated by leaders of all political parties, including the Prime Minister and Leader of the Opposition. From then, the new Speaker takes over the proceedings of the House.

An understanding of the Constitution, the Rules of Procedure, and conventions of Parliament is considered a major asset for the Speaker. While this might indicate that a Speaker be one of the senior-most members of the House, this has not always been the norm. There have been occasions in the past where the Speaker of the House was a first-time MP. For instance, Mr. K.S. Hegde, the Speaker of the sixth Lok Sabha and Mr. Bal Ram Jakhar, the Speaker of the seventh Lok Sabha were both first time MPs

What is the role of the Speaker in the House?

The Speaker is central to the functioning of the legislature. The proceedings of the House are guided by the Rules of Procedure and the final authority for the interpretation and implementation of these rules rests with the Speaker. The Speaker is responsible for regulating the discussion in the House and maintaining order in the House. For instance, it is the Speaker’s discretion on whether to allow a member to raise a matter of public importance in the House. The Speaker can suspend a sitting member for obstructing the business of the House, or adjourn the House in case of major disorder.

The Speaker is also the chair of the Business Advisory Committee, which is responsible for deciding the business of the House and allocating time for the same. The Speaker also chairs the General Purposes Committee and the Rules Committee of the Lok Sabha and appoints the chairpersons of other committees amongst the members. In the past, Speakers have also been instrumental in strengthening the Committee system. Mr. Shivraj Patil, the Speaker of the 10^th Lok Sabha, played a key role in the initiation of 17 Departmental Standing Committees, therefore strengthening Parliament’s control over the functioning of different ministries of the government.

Since the Speaker represents the entire House, the office of the Speaker is vested with impartiality and independence. The Constitution and the Rules of Procedure have prescribed guidelines for the Speaker’s office to ensure such impartiality and independence. Dr. N. Sanjiva Reddy, the Speaker of the fourth Lok Sabha, formally resigned from his political party as he was of the opinion that the Speaker belongs to the whole House and should therefore remain impartial. As per Article 100 of the Constitution, the Speaker does not exercise vote on any matter being voted upon, in the first instance. However, in case there’s a tie during the voting, the Speaker exercises her vote.

What does the President’s Address entail?

The election of the Speaker is followed by the President’s Address. Article 87 of the Constitution requires the President to address both Houses at the beginning of the first session after each general election. The President also addresses both the Houses at the beginning of the first session of each year. The President’s address highlights the initiatives of the government from the previous year, and mentions the policy priorities for the upcoming year. After the address, the ruling party moves a Motion of Thanks to the President’s address in both Houses of Parliament. In the Motion of Thanks, MPs may move amendments to the motion, which are then put to vote.

The President of India, Mr. Ram Nath Kovind will address Parliament in this first session of the 17^th Lok Sabha. During the 16^th Lok Sabha, the first President’s address was held on June 9, 2014 and the last time he addressed Parliament was on January 31, 2019 (highlights of this address can be read here).

Sources: The Constitution of India; Rules and Procedure and Conduct of Business in Lok Sabha; Handbook on the Working of Ministry of Parliamentary Affairs; The website of Parliament of India, Lok Sabha; The website of Office of the Speaker, Lok Sabha.

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Explainer: Mechanisms to investigate charges against a Supreme Court judge

First session of 17th Lok Sabha: What to expect

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