A few days ago, fifty-five Members of Parliament (MPs) from the Rajya Sabha have submitted a motion seeking the removal of Justice Shekhar Kumar Yadav of the Allahabad High Court. The motion, submitted to the Rajya Sabha Chairman, comes after Justice Yadav allegedly made remarks during a public event that were deemed communally charged and contrary to the code of conduct expected of judges. Lets delve into the procedure of removal of judges of higher judiciary in India.

The Constitutional Procedure for Removal of Judges

The removal of judges from the higher judiciary in India — both the Supreme Court and High Courts — is governed by Articles 124(4) and 217(1)(b) of the Constitution.

• Grounds for Removal: Judges can be removed for “proved misbehaviour” or “incapacity”. While the Constitution does not define these terms, the Supreme Court has clarified that wilful misconduct, corruption, moral turpitude, or physical/mental incapacity would constitute valid grounds.
• Who Can Initiate?:
  • In the Rajya Sabha, a motion must be signed by at least 50 MPs.
  • In the Lok Sabha, it requires 100 MPs to sign.
• Process Under Judges (Inquiry) Act, 1968:
  1. The motion is submitted to the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha, who decides whether to admit or reject it after due consideration.
  2. If admitted, a three-member committee is set up to investigate. This committee consists of:
     • A sitting Supreme Court judge,
     • A sitting High Court Chief Justice, and
     • A distinguished jurist.
  3. If the committee finds the judge guilty of misbehaviour or incapacity, the report is presented to both Houses of Parliament.
  4. The motion must be passed by a special majority — two-thirds of members present and voting and a majority of the total membership — in both Houses.
  5. The President then issues an order to remove the judge.

This process is the same for Supreme Court judges and High Court judges, emphasizing the need to protect judicial independence while ensuring accountability.

The Current Controversy

Justice Shekhar Kumar Yadav is accused of making remarks at an event organized by the Vishwa Hindu Parishad, suggesting that the country should be run according to the wishes of the majority. This has triggered concerns over judicial impartiality.

The “Reinstatement of Values of Judicial Life”, adopted by the Supreme Court in 1997, clearly mandates that judges must reaffirm the public's faith in judicial neutrality and avoid behavior unbecoming of their office. The present motion reflects concerns over a possible violation of these values.

Additionally, though the Judges (Inquiry) Bill, 2006 — which aimed to define “misbehaviour” and introduce minor penalties like warnings and censure — was not passed, it highlights the need for mechanisms to address judicial misconduct without necessitating full removal.

Challenges in the Removal Process

The removal of judges is deliberately complex to safeguard judicial independence. While this ensures protection against frivolous charges, it also creates challenges:

• Even when an inquiry committee finds a judge guilty, obtaining a special majority in both Houses remains difficult.
• Blackstone’s Ratio — the principle that “it is better for ten guilty to escape than one innocent suffer” — is often cited to emphasize caution in the removal process.

As seen in past instances, such stringent checks have led to judges retaining office despite misconduct allegations.

What Happens Next?

The current motion, while significant, faces uncertainties:

1. The Rajya Sabha Chairman, who himself has faced a removal motion in the past, may or may not admit the motion.
2. The Supreme Court Collegium has already taken note of Justice Yadav’s remarks and may seek an explanation from him.
3. If admitted, the subsequent investigation and parliamentary proceedings would be closely scrutinized, as the issue raises larger questions about judicial accountability and conduct.

Conclusion

The removal motion against Justice Shekhar Kumar Yadav brings into focus the delicate balance between ensuring judicial accountability and safeguarding judicial independence. While the Constitution provides a robust process for the removal of judges, the challenges of implementation underscore the need for reforms. It is essential that judges, as holders of a high constitutional office, maintain neutrality and conduct themselves in ways that uphold public trust in the judiciary.