By Vijay L. Kelkar , Pradeep S. Mehta
The current procedure under the Indian Constitution is too cumbersome and the judiciary is not free of corruption. We could set up a judicial service commission to appoint and oust judges, subject to Parliamentary approval.
In spite of various pronouncements, corruption appears to have risen exponentially across society, making lives more difficult. It has also seeped into our judiciary. However, punishing corrupt elements in the judiciary is difficult because of systemic problems in the prosecution of judges. This needs to be addressed by a new impartial process overseen by Parliament.
The recent matter involving Delhi high court’s Justice Yashwant Varma has revived a national discussion on judicial accountability and the pressing need for systemic reforms. It has exposed flaws in the judiciary, where judges accused of corruption or misconduct often face little to no real punishment.
That said, from the reports and evidence of burnt currency notes purportedly found in his outhouse, Justice Varma himself need not be guilty of a crime, but the media seems to have convicted him already.
Even Rajya Sabha Chairman Jagdeep Dhankar was incensed. He questioned the Supreme Court’s right to have struck down the National Judicial Appointments Act and defied the supremacy of Parliament. Alas, the Act did not provide for any procedure to remove judges when faced with charges of any sort. In all Westminster-style democracies, Parliament is indeed the ultimate arbiter for the removal of judges who face such charges.
The constitutional provisions of India, particularly Articles 124(4) and 218, delineate the procedures for the removal of judges based on “proved misbehaviour or incapacity.” The term used is ‘removal’ rather than ‘impeachment’ in reference to the process of dismissing a judge.
Examples from other democracies highlight structured mechanisms for judicial oversight. South Africa’s Judicial Service Commission (JSC) plays a crucial role in judicial appointments and addressing complaints against judges.
Minor misconduct is handled by the Judicial Conduct Committee (JCC) through reprimands or corrective measures. Serious cases go to the Judicial Conduct Tribunal (JCT), which may recommend removal. The JSC reviews the Tribunal’s findings and, if warranted, refers the matter to parliament, where a judge’s removal requires a two-thirds majority vote, followed by the president’s approval.
Federal judges in the US are classified as civil officers and can be removed by impeachment under the US Constitution for “treason, bribery, or other high crimes and misdemeanours.” The House of Representatives initiates impeachment, and if approved by a simple majority, the case moves to the Senate, where a two-thirds majority is required. Such impeachment isn’t rare; as of March, 15 federal judges have been impeached and eight convicted.
The impeachment process for judges in Germany involves the Bundestag—its parliament—initiating proceedings with a two-thirds majority in cases of a breach of constitutional principles, followed by a decision by the Federal Constitutional Court requiring a two-thirds majority to transfer, force into retirement, or, in cases of intentional infringement, dismiss the accused.
In the UK, judges can be removed by the sovereign upon an address from both the House of Commons and House of Lords. Both Houses must agree that a judge should be removed on account of misconduct or other significant reasons.
In Kenya, a judge of a superior court may be removed for incapacity, misconduct, incompetence, bankruptcy or breach of judicial conduct. Its Judicial Service Commission initiates the process, either on its own or upon a petition. In Nigeria, such a removal requires a recommendation from the National Judicial Council. Federal judges can be removed by the president with a two-thirds majority of the senate, while the removal of state-level judges by a governor requires approval from the state assembly.
Globally, parliament is the ultimate authority to remove or impeach a judge. However, judicial accountability in India has historically been a contentious topic, with many judges accused of misconduct eluding appropriate consequences. Two judges, V. Ramaswami and Soumitra Sen, faced impeachment proceedings but resigned before their conclusion.
The underlying cause of this systemic failure resides in the burdensome impeachment process detailed in the Constitution. A high threshold makes the process nearly impossible. Removal requires a motion endorsed by a substantial number of parliamentarians, followed by an inquiry and ultimately approval by a two-thirds majority in both Houses of Parliament. Even when significant evidence of wrongdoing exists, political factors and procedural complexities derail attempts at ensuring accountability.
Although judicial independence is crucial, it must be accompanied by accountability. Even in the lower judiciary, corruption has not been ignored. In a well-known cash-for-bail scandal in 2012, CBI court judges were arrested for corruption.
India needs to set up a Judicial Service Commission with powers of appointment and removal, subject to Parliamentary approval. A compromised judiciary shakes the foundation of the rule of law, paving the way for instability. With the executive prone to overreach and legislature often falling short, the judiciary remains the nation’s strongest pillar of trust. Preserving its integrity is not just a duty, but a necessity. For the health of our democracy depends on it.
Pragya Tiwari of CUTS contributed to this article.
The authors are Vijay L. Kelkar & Pradeep S. Mehta
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