What legal options are available to penalise judge who made communal remarks at VHP event?

Lawyers, politicians and civil society groups have demanded action against Justice Shekhar Kumar Yadav of the Allahabad High Court for his communal remarks at a Vishwa Hindu Parishad event at the High Court premises on Sunday. In response, the Supreme Court has sought a report from the Allahabad High Court about Yadav’s remarks. Opposition parties in the Lok Sabha are preparing to move a motion to impeach Yadav.

There are broadly two courses of action that can be undertaken against judges of constitutional courts for improper conduct: an in-house procedure adopted by the Supreme Court to deal with complaints against judges. This may result in the judge resigning or not being allocated judicial work. The second is impeachment by Parliament. Detailed in the Constitution, it may result in the judge’s termination.

However, it is unlikely that Yadav will face action under either mechanism. The in-house inquiry process is opaque and there is little clarity about what penalty judges have previously faced under it. The impeachment process has rarely been initiated and has never been carried through in independent India’s history.

In-house procedure

In 1999, the Supreme Court adopted an in-house procedure developed by a committee of five judges. It was meant to address allegations of misconduct against High Court and Supreme Court judges. The court decided to keep the procedure in-house in order to safeguard judicial independence and preserve public confidence.

According to the procedure, a complaint “casting reflection on the independence and integrity” of a High Court judge may be made either to the President, the chief justice of India or the chief justice of that High Court. Such complaints are to be examined by the High Court chief justice.

Frivolous complaints or those related to judicial matters are dismissed. For serious allegations, the chief justice seeks a response from the judge concerned. If the response is satisfactory, the matter is closed and the chief justice of India is informed. If a deeper probe is required, the complaint, the judge’s response and the High Court chief justice’s comments are forwarded to the chief justice of India.

If the chief justice of India deems further inquiry necessary, a three-member committee is formed. This committee includes two chief justices from other High Courts and one High Court judge. It conducts a fact-finding inquiry, allowing the accused judge concerned to participate. The process is informal and does not involve lawyers or cross-examination of witnesses.

The committee’s findings determine the outcome. If the allegations are substantiated and serious, the judge is advised to resign or retire voluntarily. If the judge refuses, the High Court chief justice is advised by the chief justice of India to withdraw judicial work from them and this is conveyed to the President and Prime Minister. This may lead to impeachment proceedings. For less grave misconduct, the judge is counselled and the committee’s report is shared with them.

The Supreme Court seeking a report from the Allahabad High Court about Yadav’s address may lead to the commencement of this procedure against Yadav.

In September, the apex court had similarly taken cognisance of communal and sexist remarks made in court by the Karnataka High Court’s Justice V Srishananda. It had asked the High Court’s registrar for a report on the remarks after instructions from the High Court’s chief justice. Srishananda subsequently expressed regret for his remarks.

An opaque process

The Supreme Court has held that as per a 2003 judgement by it, it is not bound to make public the probe report prepared by a committee as part of the in-house procedure. The court’s rationale was that the report is confidential and that the Supreme Court does not exercise any disciplinary control over High Court judges.

As a result, it is not clear how many judges have been proceeded against under the process and what action was ultimately taken on each complaint. The Union Law and Justice Ministry had informed the Parliament in 2022 that between January 1, 2017 and December 31, 2021, 1,631 complaints were received on judicial corruption by the Centralised Public Grievance Redress and Monitoring System and forwarded to the chief justice of India or of High Courts to deal with as per the in-house mechanism.

The Supreme Court had perhaps most infamously refused to make public or share even with the woman who had filed a complaint of sexual harassment against then Chief Justice of India, Ranjan Gogoi the report of the in-house committee that had cleared him of the accusation.

So if an in-house probe against Yadav begins, the public would never know how it may conclude.

Scrutiny by Parliament

The process to impeach a High Court judge is governed by the Constitution and the Judges (Inquiry) Act, 1968. Parliament can initiate removal proceedings based on “proven misbehaviour or incapacity” under Article 124(4) and (5) read with Article 218. However, neither the Constitution nor the act explicitly define “misbehaviour.” Judicial interpretations have clarified it to include corruption, lack of integrity or wilful misconduct, both within and beyond judicial office.

To start the process, a motion for removal must be submitted in either the Lok Sabha or Rajya Sabha. If initiated in the Lok Sabha, it requires the signatures of at least 100 MPs. If in the Rajya Sabha, at least 50 MPs must sign. The Speaker or Chairperson of the House decides whether to admit or reject the motion.

If admitted, the matter is referred to a judicial committee for investigation. The committee has three members: a Supreme Court judge, a High Court chief justice and an eminent jurist. Based on the committee’s findings, Parliament debates and votes on the motion. The motion must secure a two-thirds majority in both Houses. Upon approval, Parliament advises the President to remove the judge from office.

An unused provision

However, no Supreme Court or High Court judge has ever been impeached in India. In fact, impeachment proceedings against constitutional court judges have commenced only seven times.

Justice V Ramaswami of the Supreme Court became the first judge to face an impeachment motion in 1993 for allegedly spending in excess on his official residence when he was chief justice of a High Court.

The impeachment motion against him was accepted by the Lok Sabha speaker. The judicial committee constituted by the speaker found Ramaswami guilty on 11 of 14 charges. However, the removal motion failed in the Lok Sabha.

In 2009, Karnataka High Court Chief Justice PD Dinakaran had an impeachment motion against him successfully passed in the Rajya Sabha for possessing assets in excess of his legal income. Even as the judicial commission was probing the charges against him, he resigned in 2011.

In 2011, an impeachment motion was moved against Justice Soumitra Sen of the Calcutta High Court for misappropriation of public funds. A motion for his removal was passed by the Rajya Sabha. But he resigned before it came up before the Lok Sabha.

Sen has come the closest among constitutional judges to being impeached.

In 2015, 58 Rajya Sabha MPs moved an impeachment motion against Justice JB Pardiwala of the Gujarat High Court for allegedly making objectionable remarks in a judgement on the subject of reservation. Pardiwala, who is now a judge at the Supreme Court, expunged the remarks from the judgement before the motion could be accepted by the Rajya Sabha chairperson.

In the same year, the Rajya Sabha accepted an impeachment motion against Justice SK Gangele of the Madhya Pradesh High Court for allegedly sexually harassing a female district court judge. However, the judicial committee formed to probe the allegations cleared Gangele of the charges in 2017.

In 2017, some Rajya Sabha MPs attempted to move an impeachment motion against Justice CV Nagarjuna Reddy of the Andhra Pradesh and Telangana High Court for allegedly making casteist remarks and death threats against a Dalit district judge. However, the MPs could not summon the numbers to successfully pass the motion.

The last attempt at impeaching a judge was seen in 2018, when opposition MPs moved to impeach then Chief Justice of India Deepak Misra in the Rajya Sabha for allegedly misusing his Master of Roster Powers. Even though the MPs had the numbers to move the motion, then Vice President M Venkaiah Naidu rejected it on the ground that the allegation did not deal with misbehavior but only with the exercise of administrative powers.