REPORTEDLY, THE UNION GOVERNMENT IS SET to introduce an impeachment motion to remove Justice Yashwant Varma, a judge of the Allahabad High Court (and previously in the Delhi High Court) in whose Delhi residence sacks of burnt currency were discovered in March. The government is reportedly reaching out to opposition leaders to build consensus for Justice Varma’s removal.
The in-house committee formed by the then Chief Justice of India (‘CJI’), Sanjiv Khanna, reportedly indicted Justice Varma, observing that the allegations against him were credible and warranted an impeachment. Justice Varma reportedly did not heed the advice of the CJI to resign. The CJI thus sent a letter to the President and Prime Minister to impeach Justice Varma.
However, the manner in which the government is approaching the removal of Justice Varma is troubling for several reasons.
Firstly, the government is creating the impression that it is authorised or has the jurisdiction to initiate the removal of a judge, which is not true.
Under the Judges (Inquiry) Act, 1968, only Members of Parliament (‘MPs’) are authorised to sign a motion to remove a judge. In the case of the Lok Sabha, a total of 100 MPs must sign the motion and in the case of the Rajya Sabha, a total of 50 MPs must sign the motion. The government has no role in this process. Once the motion is signed and submitted to the Speaker or the Chairperson, as the case may be, the decision to accept or reject it lies with them.
However, the manner in which the government is approaching the removal of Justice Varma is troubling for several reasons.
Secondly, the government believes there is no need for a committee to investigate allegations against Justice Varma under the Judges (Inquiry) Act, 1968, as an in-house inquiry committee has already submitted a report. The Times of India, citing government sources, reported this.
This understanding by the government appears incorrect and could undermine not only Justice Varma’s right to a fair procedure but also the 1968 Act, a legislation deriving its strength from the Constitution. The government is mistaken in conflating an in-house inquiry with the inquiry contemplated under the 1968 Act. The two inquiries differ not only in their mandate and powers but also in their purpose.
Thirdly, the government has not shared a copy of the in-house report with MPs, who, under the law, are authorised to sign the motion to initiate the removal of a judge. In the absence of the report, MPs cannot form an informed decision on whether to initiate removal proceedings against Justice Varma. They cannot be expected to act without evidence.
This raises doubts about the government’s intentions regarding the removal of Justice Varma, specifically whether it is genuinely committed to addressing the issue or attempting to delay the process by creating circumstances that invite litigation.
Removal of a judge under the Constitution
Article 124(4) of the Constitution provides that a judge of the Supreme Court shall not be removed from office only until and unless two steps are followed. First, each House of the Parliament (with at least two third members present and voting) have by a majority (of total membership), presented an address to the President in the same session that the judge has to be removed on grounds of proven misbehaviour or incapacity. And second, the President passes an order regarding the removal after this address.
Article 124(5) further provides that Parliament may, by law, regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a judge under clause (4).
It is important to note that Article 218 of the Constitution directs that the provisions of Articles 124(4) and 124(5) shall also apply to High Court judges. Thus, the procedure for removing a judge of the Supreme Court or a High Court is the same.
The Judges (Inquiry) Act, 1968
The 1968 Act derives its authority from Article 124(5) of the Constitution. It regulates the procedure for the investigation and proof of the misbehaviour or incapacity of a judge of the Supreme Court or a High Court, the presentation of an address by Parliament to the President, and matters connected therewith.
The question, therefore, is whether the Speaker or the chairperson, as the case may be, can overlook the mandate of the 1968 Act, which mandatorily provides for a committee to investigate allegations against a judge. Additionally, the question arises whether Justice Varma is entitled to the fair procedure provided under the 1968 Act.
On what basis are MPs expected to sign the motion to remove a judge when the Prime Minister’s Office , which received the in-house report from the CJI, has not made it public?
Section 3(2) of the Act mandates the formation of a committee to investigate the grounds on which the removal of a judge is sought.
This process is initiated when a motion to remove the judge, signed by 50 members in the case of the Rajya Sabha or 100 members in the case of the Lok Sabha, is admitted by either the Speaker or the Chairperson, as the case may be.
On what basis are MPs expected to sign the motion to remove a judge when the Prime Minister’s Office , which received the in-house report from the CJI, has not made it public?
Should MPs, who are empowered to initiate removal proceedings against a judge, not be entitled to a copy of the in-house report, which reportedly found Justice Varma’s conduct prima facie worthy of warranting his removal?
This view had been endorsed by the then chief justice Sanjiv Khanna, who had himself sought Justice Varma’s removal.
How can MPs make an informed decision on whether to initiate the process to remove Justice Varma without access to the in-house report?
This is not a case where no report exists, and MPs are initiating the removal process before an in-house inquiry (although they are entitled to do so). However, in such cases, the likelihood of the presiding officer rejecting the motion is high.
Coming to the Judges (Inquiry) Act, the committee under the Act consists of three members, of whom:
(a) one shall be chosen from among the Chief Justice and other judges of the Supreme Court;
(b) one shall be chosen from among the Chief Justices of the High Courts; and (c) one shall be a person who, in the opinion of the Speaker or, as the case may be, the Chairperson, is a distinguished jurist.
The composition of this committee is markedly different from the in-house committee set-up under the in-house procedure adopted by a full court of the Supreme Court. For a High Court judge, the in-house committee comprises two Chief Justices of High Courts and one High Court judge.
Importantly, the in-house committee is solely concerned with fact-finding. It cannot examine or cross-examine witnesses on oath, and there can be no representation by lawyers.
In contrast, the committee under the Judges (Inquiry) Act is required to frame definite charges against the judge on the basis of which the investigation is proposed to be held. Furthermore, the committee must provide the judge with a reasonable opportunity to cross-examine witnesses, adduce evidence, and be heard in their defence.
At the conclusion of the investigation, the Committee is required to submit its report to the Speaker or, as the case may be, to the Chairman, or where the Committee has been constituted jointly by the Speaker and the Chairman, to both of them, stating therein its findings on each of the charges separately with such observations on the whole case as it thinks fit.
Section 5 of the Act confers power of a civil court upon the committee which includes power to:
(a) summon and enforce the attendance of any person and examine him on oath;
(b) require the discovery and production of documents;
(c) receive evidence on oath;
(d) issue commissions for the examination of witnesses or documents; and
(e) such other matters as may be prescribed.
The in-house procedure provides no such power to the in-house committee though it says that the committee can devise its own procedure consistent with the principle of natural justice.
Importantly, Section 6 states that if the report of the Committee contains a finding that the judge is not guilty of any misbehaviour or does not suffer from any incapacity, then no further steps shall be taken in either House of Parliament in relation to the report and the motion pending in the House or the Houses of Parliament shall not be proceeded with.
But if the report of the Committee contains a finding that the Judge is guilty of any misbehaviour, then, the motion shall, together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament.
The motion is then debated and voted. If adopted then the misbehavior is proven and an address praying for the removal of the judge is presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted.
The Judges (Inquiry) Act, 1968, is a self-contained statute that provides for a legal framework for removing a judge, as mandated by the Constitution. This procedure cannot be undermined by an in-house committee report, which lacks statutory authority.
In Indira Jaising v. Registrar General, Supreme Court of India (2003), the Supreme Court observed that the Chief Justice of India’s authority to conduct an in-house inquiry derives solely from moral or ethical considerations, not from any statutory authority .
The in-house procedure, as available on the Supreme Court’s website, aims to address concerns surrounding members of the higher judiciary not being accountable for their conduct. It also protects judges from false or frivolous complaints. However, it does not regulate the removal of a judge.
A clear comparison of the Judges (Inquiry) Act and the in-house procedure reveals their distinct purposes, scopes, and origins.
How is the in-house procedure different from the procedure under the Judges (Inquiry) Act?
A clear comparison of the Judges (Inquiry) Act and the in-house procedure reveals their distinct purposes, scopes, and origins.
Firstly, the in-house procedure is not a law under Article 124(5) of the Constitution. While an in-house committee report may carry some moral weight, it cannot replace a report under the Judges (Inquiry) Act.
Secondly, the in-house committee, headed by a Chief Justice of a High Court, lacks the authority to take evidence on oath and serves only as a fact-finding body for the Chief Justice of India. In contrast, the committee under the 1968 Act, chaired by the Chief Justice of India or a Supreme Court judge and including a distinguished jurist, has extensive powers, including the right of the judge concerned to cross-examine witnesses.
Thirdly, denying the procedure outlined in the 1968 Act would violate Justice Varma’s rights to a fair process under Articles 14 and 21 of the Constitution.
Fourthly, the report considered, debated and voted on in a parliamentary motion when a judge is found guilty is that of the committee constituted under the Judges (Inquiry) Act, not an in-house committee report.
For instance, in the case of Justice Soumitra Sen, a committee was formed under the 1968 Act despite an in-house committee’s findings and a letter from then Chief Justice of India, K.G. Balakrishnan, recommending Justice Sen’s removal. Similarly, in the case of Madhya Pradesh High Court judge, Justice S.K. Gangele, a committee under the Act was constituted, notwithstanding an in-house probe.
The Speaker of the Lok Sabha, and the Chairperson of the Rajya Sabha cannot bypass the mandate of the Judges (Inquiry) Act, 1968.
It is hoped that they will strictly adhere to its provisions. This would mitigate the possibility of a challenge to Justice Varma’s removal process in court, which could delay his removal as a judge.
The present case also makes a compelling case for amending the in-house procedure. While there is nothing inherently wrong with communicating the in-house report to the Prime Minister or, for that matter, the President and urging them to initiate the removal of a judge, the irony lies in the fact that MPs, who are authorised to initiate removal proceedings and whose votes are crucial for a judge’s removal, are not provided with a copy of the report by either the CJI or the Prime Minister.
A similar situation occurred in the case of Allahabad High Court judge, Justice N. Narayan Shukla, where the in-house report remained undisclosed even as the CJI sought his removal based on it. However, the government neither shared the report with MPs nor took any initiative to approach them to facilitate the judge’s removal.