With process to remove Justice Yashwant Varma now likely in Parliament, how impeachment works

Indian Express

4 days ago

The process to remove former Delhi High Court judge Yashwant Varma, whose official residence in New Delhi was allegedly found to have wads of currency notes in March, will soon be initiated in the Lok Sabha.
The Indian Express has learned that Speaker Om Birla could announce a statutory committee to investigate the grounds on which the removal has been sought. Birla and Rajya Sabha Deputy Chairman Harivansh met on Wednesday (July 23) with officials of both houses to discuss the procedure, with Union Home Minister Amit Shah also joining them. The presiding officers will have to consult the Chief Justice of India for finalising the names, as the statutory committee should have one judge each from the Supreme Court and the High Courts.
On the same day, the Supreme Court said it will set up a bench to hear Justice Varma's plea challenging the legal validity of the judiciary's in-house inquiry committee, which confirmed charges of recovery of unaccounted cash. Justice Varma called it 'a parallel, extra-constitutional mechanism'.
The developments also follow Vice President Jagdeep Dhankhar's surprise resignation on Monday evening. As The Indian Express reported Tuesday, it came hours after his decision, as the ex officio Chairman of the Rajya Sabha, to accept the Opposition's notice on the removal of Justice Varma. Sources said the government believed that the move upstaged its own initiative to bring in such a notice.
The procedure for the impeachment of a Supreme Court judge is laid down under Article 124(4) of the Constitution, and Article 218 says the same provisions shall also apply to a judge of the High Court.
Under Article 124(4), a judge can be removed by Parliament through a laid-down procedure on only two grounds: 'proved misbehaviour' and 'incapacity'.
For an impeachment motion to be accepted, at least two-thirds of those 'present and voting' in both Lok Sabha and Rajya Sabha must vote in favour of removing the judge, and the number of votes in favour must be more than 50% of the 'total membership' of each House.
If Parliament passes such a vote, the President will pass an order for the removal of the judge.
The detailed procedure for the impeachment of a judge is laid down in the Judges Inquiry Act, 1968. Under Section 3, for a motion of impeachment to be taken up, it has to be moved by not less than 100 members in the Lok Sabha, and at least 50 members in the Rajya Sabha. This collection of signatures is the first step.
There is no time limit for the Speaker/ Chairman to act on the motion, and they can either admit it or refuse to do so. If admitted, a three-member committee of inquiry must be constituted as soon as may be. The committee is headed by the Chief Justice of India or a judge of the Supreme Court, and has a Chief Justice of any High Court, and a person who is, in the opinion of the Speaker/ Chairman, a 'distinguished jurist'.
The committee frames the charges, and can seek a medical test for the judge if the impeachment charge is grounds of mental incapacity. The committee has the power to regulate its procedure, call for evidence, and cross-examine witnesses.
The committee will then submit a report to the Speaker/ Chairman with its findings. The Speaker/ Chairman will place the report before Lok Sabha/ Rajya Sabha 'as soon as may be'. If the report finds that the judge is not guilty, the matter will end there.
In case of a guilty finding, the report of the committee is adopted by the House in which it was introduced, and then an address is made to the President by each House of Parliament in the same session, seeking the judge's removal. A motion will be put to a vote, and once the process is over, the same will be repeated in the other house.
The impeachment process differs from the internal inquiry within the judiciary.
The need for an internal mechanism within the judiciary was felt in 1995, after allegations of financial impropriety surfaced against then Bombay High Court Chief Justice A M Bhattacharjee. After the Bombay Bar Association moved a resolution calling for the judge's resignation, a writ petition was filed before the Supreme Court seeking to restrain the Bar.
While hearing the case, Justices K Ramaswamy and B L Hansaria of the SC noted the 'hiatus between bad behaviour and impeachable misbehaviour' (C. Ravichandran Iyer v. Justice A.M. Bhattacharjee). The SC noted there was no process to hold a judge accountable for 'bad conduct inconsistent with the high office', when such conduct did not meet the high bar of impeachment set by Article 124 of the Constitution.
Thus, to address such issues, the SC constituted a five-member committee comprising the senior-most HC Chief Justices at the time, to devise the procedure 'for taking suitable remedial action against judges, who by their acts of omission or commission, do not follow the accepted values of judicial life…'
The committee submitted its report in October 1997. It was adopted with amendments in a full court meeting of the SC in December 1999.
Process revisited in 2014
In 2014, when a woman additional district and sessions judge from Madhya Pradesh filed a complaint of sexual harassment against a sitting judge of the High Court, the SC revisited its in-house procedure. Justices J S Khehar and Arun Mishra summarised and explained this process through 'seven steps' (Additional District and Sessions Judge 'X' v. Registrar General High Court of Madhya Pradesh).
Essentially, this process begins when the Chief Justice of a HC, the CJI, or the President of India receives a complaint. The CJ of the HC or the President will forward the complaint to the CJI. This complaint can be dropped at any stage, if not found serious enough by the CJI. However, to test its veracity, the CJI can seek a preliminary report from the CJ of the HC concerned.
If the CJ recommends that a 'deeper probe' is warranted, the CJI may examine the recommendation and the statement of the judge facing the accusations. A three-member inquiry, comprising two other HC Chief Justices and one HC judge, can be ordered.
This committee has the power to devise its own procedure 'consistent with the rules of natural justice', such as hearing both sides in a case. Once the inquiry has been concluded, the committee will submit its report to the CJI. This report must state whether:
If the report finds there is substance to the allegations, it will be sent to the judge concerned as well. If the committee concludes that the misconduct is not serious enough to warrant removal proceedings, the CJI may 'advise' the judge concerned and direct that the committee's report be placed on record.
If the committee decides that the allegations are serious enough to initiate removal proceedings, the CJI will advise the concerned judge to resign or retire voluntarily.
If the judge does not accept, the CJI will direct the HC Chief Justice not to assign any judicial work to said judge. In Justice Varma's situation, then CJI Sanjiv Khanna asked Chief Justice of Delhi High Court Devendra Kumar Upadhyaya not to assign any judicial work to Justice Varma.
Further, the CJI will inform the President and the Prime Minister of the committee's finding that removal proceedings should be initiated.
In June, it was learnt that the inquiry committee in Justice Varma's case spoke of 'implied responsibility' on the part of the judge in the recovery of cash, and held him responsible for 'misconduct'.
Apurva Vishwanath is the National Legal Editor of The Indian Express in New Delhi. She graduated with a B.A., LL. B (Hons) from Dr Ram Manohar Lohiya National Law University, Lucknow. She joined the newspaper in 2019 and in her current role, oversees the newspapers coverage of legal issues. She also closely tracks judicial appointments. Prior to her role at the Indian Express, she has worked with ThePrint and Mint. ... Read More
Have been in journalism covering national politics for 23 years. Have covered six consecutive Lok Sabha elections and assembly polls in almost all the states. Currently writes on ruling BJP. Always loves to understand what's cooking in the national politics (And ventures into the act only in kitchen at home). ... Read More