As Opposition leaders aggravated efforts to come at a common position to give a notice for a motion for the removal of the Chief Justice of India Dipak Misra, here’s a look at how and why judges can be removed and what are the procedures involved:
GROUNDS FOR REMOVAL
There are two grounds for removal of judges, proved misbehaviour or incapacity.
According to article 124 of the constitution, a judge of the Supreme Court can be removed from his office by an order of the President.
The President can problem the removal order after an address by the Parliament, supported by a special majority of each House of Parliament (that is, a majority of the total membership of that House and a majority of not less than two-thirds of the members of that house present and voting), has been presented to the President in the same session of Parliament for such a removal.
PROCESS FOR REMOVAL
* A removal motion signed by 100 members (in case of Lok Sabha) or 50 members (in case of Rajya Sabha) is to be given to the Speaker/Chairman.
* The removal motion can be introduced in any of the two Houses of Parliament.
* The Speaker/Chairman may admit and reject the motion.
* If it is admitted, then the Speaker/Chairman is to constitute a three-member committee to investigate into the charges. The Committee should consist of the Chief Justice or a judge of the Supreme Court, a chief justice of a high court and a dignified jurist.
* If the committee finds the judge to be guilty of the charges (misbehaviour or incapacity), the House in which the motion was introduced, can take up the consideration of the motion.
* Once, the House in which removal motion was introduced passes it with special majority, it goes to the second House which also has to pass it with special majority.
*After the motion is passed by each House of the Parliament by special majority, an address is presented to the President for removal of the judge.
* Finally, the President passes an order removing the judge.
So far, no judge of has been removed by Parliament, though a few have faced motions for their removal over corruption charges:
Justice Soumitra Sen, former judge of Calcutta High Court
He was held guilty of misconduct of public funds he received in his capability as receiver appointed by the High Court of Calcutta and misrepresenting facts about it by a committee of three judges set up by former CJI K G Balakrishnan in 2007.
A year later, Justice Balakrishnan recommended his removal to the PM, after which a legal opinion got by the law ministry endorsed the judges’ committee report.
In 2009, 58 MPs of the Rajya Sabha moved a motion for Justice Sen’s removal.
The report of the three-member committee, placed in both Houses of Parliament, said Justice Sen was ‘guilty of misbehaviour’.
The report said the oral and documentary evidence had established that two separate accounts were opened by Justice Sen as “receiver” in his own name and Rs 33, 22, 800 were deposited between March 1993 and May 1995.
The motion for removal was moved in the Rajya Sabha and debated upon. On August 18, 2011, Rajya Sabha passed the motion for removal by overwhelming majority of 189 votes in favour and 17 against.
Ahead of the motion for removal against him in the Lok Sabha in September 2011, he resigned. Later, Lok Sabha decided to drop the processing against him because he had resigned.
Justice V. Ramaswami, former chief justice of Punjab and Haryana court, judge in SC
Following media reports about his ostentatious expenditure on his official residence during his tenure as a Chief Justice of Punjab and Haryana, Supreme Court Bar Association passed a resolution calling for his removal. Bharatiya Janata Party and Left parties submitted a notice of motion to Parliament searching his removal from office.
A committee found Ramaswami guilty of 11 out of 14 charges.
The removal motion was placed for debate and voting on May 10, 1993. Of 401 members present that day, there were 196 votes for impeachment and no votes against and 205 abstentions by ruling Congress and its allies. The motion which required not less than two third majority of the total number of members present in both houses of the Parliament and an absolute majority of its total membership thus failed to pass.
Justice P D Dinakaran, former chief Chief Justice of the Sikkim High Court.
Justice Dinakaran also faced a move to remove him. In September 2009, allegations were made against Dinakaran by several members of the Bar Council of India stating that he had massive assets and land in Tamil Nadu. They wrote a letter to then President Pratibha Patil, Prime Minister Manmohan Singh and Union Law Minister to arbitrate in this matter.
The Chairman of the Rajya Sabha admitted a motion searching his removal on charges of corruption and abuse of his judicial office.
Facing removal, he resigned from the post of Sikkim high court Chief Justice on July 29, 2011 expressing “lack of faith and confidence” in the three-member inquiry Committee probing charges against him.
On August 4, 2011, Justice Dinakaran wrote to the law ministry seeking to withdraw his resignation. But the ministry rejected his request. However, his resignation did keep scuttling the probe against him as the chairman of Rajya Sabha Hamid Ansari, quietly buried the inquiry committee citing Dinakaran’s resignation in July.