A few months back, a woman district Judge at Gwalior in Madhya Pradesh had made allegations of sexual harassment against a sitting judge of the Madhya Pradesh High Court, whose name has now been disclosed by Indian Express (we are not publishing the name at this stage). It is also reported by Indian Express that 58 members of the Rajya Sabha have submitted a petition to the Chairman of Rajya Sabha Shri Hamid Ansari for initiating impeachment process against the said MP High Court judge for the aforesaid alleged sexual harassment.
As per the above IE report, the above petition for the initiation of impeachment process against the said judge lists three grounds for impeachment: (1) “sexual harassment of a woman Additional District and Sessions Judge of Gwalior while being a sitting judge of the Gwalior Bench of the High Court of Madhya Pradesh”; (2) “victimisation of the said Additional District and Sessions Judge for not submitting to his illegal and immoral demands, including, but not limited to, transferring her from Gwalior to Sidhi”; and (3) “misusing his position as the Administrative Judge of the High Court of Madhya Pradesh to use the subordinate judiciary to victimise the said Additional District and Sessions Judge.”
It may be pointed out that as per other reports, the Chief Justice of India H.L. Dattu has already constituted a 3-judge committee for a “deeper probe” into the sexual harassment allegations against the said MP high court judge, after receiving a preliminary inquiry report in this matter. This 3-judge committee has been constituted in accordance with the In-House Procedure for inquiry into complaints against Supreme Court and High Court Judges. As reported by Tilak Marg earlier, prior to that the Supreme Court had quashed the inquiry initiated by MP High Court in this matter and had ordered a fresh probe.
Thus, this petition by 58 Rajya Sabha members to initiate an impeachment process against the said MP High Court judge would be in addition to the said inquiry being conducted as per the orders of the Chief Justice of India in accordance with the In-House procedure of the Supreme Court.
It is pertinent to mention that so far in the history of India, since the Constitution of India came into being on 26th January 1950, impeachment process has actually been conducted in the Parliament only against two judges. Justice V. Ramaswami, a judge of the Supreme Court, was the first to face the impeachment process in Parliament on 10 May 1993. However, of the 401 members present that day in Lok Sabha, while 196 votes were cast in favour of the impeachment with no votes against it, as many as 205 members belonging to the ruling Congress party abstained from voting. Due to this, the impeachment motion failed to pass in Lok Sabha since it required not less than two third majority of the total number of members present in each house of the Parliament and an absolute majority of the total membership in each house. The second judge to face the impeachment process in Parliament was Justice Soumitra Sen of Calcutta High Court. On 18 August 2011, Rajya Sabha passed the impeachment motion against him by an overwhelming majority of 189 votes in favour and 17 against it. However, before the impeachment motion against him could be taken up in Lok Sabha on 5th and 6th September 2011, he resigned on 1st September 2011. In view of his resignation, the Lok Sabha decided to drop the impeachment motion against him.
Thus, both the impeachment processes initiated so far have been unsuccessful. If the said MP High Court judge faces the impeachment process, he will be the third judge ever to face it.
It is pertinent to point out that clause (4) of Article 124 of the Constitution provides for the impeachment process for removal of a Supreme Court judge and it is reproduced as under:
“(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by 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 for such removal on the ground of proved misbehaviour or incapacity.”
Likewise, Proviso (b) to Article 217(1) of the Constitution lays down about the removal of a High Court judge through impeachment, and it is reproduced as under:
“(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court;”
Moreover, Article 218 provides as under:
“218. Application of certain provisions relating to Supreme Court to High Courts.—The provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court.”
Thus, the procedure for removal of a High Court judge by impeachment is the same as that for a Supreme Court judge as laid down in clause (4) of Article 124, as noted above.
While the Constitution lays down the basic details of the impeachment process, the detailed procedure for impeachment is laid down in the Judges (Inquiry) Act, 1968.
As per Section 3(1) of the said Act, a Notice is required to be given of a motion for presenting an address to the President praying for the removal of a Judge signed, –
(a) in the case of a notice given in the House of the People (i.e., Lok Sabha), by not less than 100 members of that House;
(b) in the case of a notice given in the Council of States (i.e., Rajya Sabha), by not less than 50 members of that Council.
After such notice is given, the Speaker of Lok Sabha or the Chairman of Rajya Sabha, as the case may be, may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same.
After such notice is admitted, under the provisions of Section 3(2) of the said Act, the Speaker or the Chairman is required to constitute a Committee for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for, and this committee consists of following 3 members:
(a) one member shall be chosen from among the Chief Justice and other Judges of the Supreme Court;
(b) one member shall be chosen from among the Chief Justices of the High Courts; and
(c) one member shall be a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist.
This committee then conducts a detailed inquiry into the allegations by following the procedure laid down in sub-sections (3) to (9) of Section 3 of the said Act. Under the provisions of Section 5, this committee has certain powers of a civil court for the purposes of this inquiry. On completion of the inquiry, the committee has to submit its report under Section 4 of the Act.
Section 6(1) of the said Act provides 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 (for impeachment) pending in the House or the Houses of Parliament shall not be proceeded with.
On the other hand, Section 6(2) of the said Act lays down that if the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion for impeachment shall, together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.
Thereafter, as per the provisions of Section 6(3) of the said Act, if the motion for impeachment is adopted by each House of Parliament in accordance with the provisions of clause (4) of Article 124 or, as the case may be, in accordance with that clause read with Article 218 of the Constitution, then, the misbehaviour or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted.
Once such address has been presented to the President, the President has to pass an order for removal of the judge concerned.
Thus, there is an elaborate procedure laid down in the Constitution and the Judges (Inquiry) Act, 1968, for the impeachment of a judge of the Supreme Court or of a High Court.
