By Sanjeev Nayyar

Recent media reports have stated that the Chief Justice of India sent the inquiry report on the Delhi High Court judge in whose home burnt notes were allegedly found to the President and Prime Minister. Since the report has been sent, the Supreme Court refused to register an FIR against the former Delhi HC judge.

The report was sent to the President and the PM because under Article 124 (4) of the Constitution, “A Judge of the SC 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-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proven misbehaviour or incapacity.” According to Article 217 (1)(b), a Judge of an HC “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.” Simply put, these two Articles mean a judge can be removed through impeachment when approved by the Parliament.

However, in any organisation, be it private or government, the organisation has the power to appoint/ dismiss an employee. However, in the case of the higher judiciary, while the SC Collegium selects judges, if and when they need to be dismissed, the matter goes to the President or the PM.

Since the formation of the SC in 1950, impeachment proceedings against SC/ HC judges were initiated a total of five times. According to a 2018 Indian Express report, “The first attempt at pursuing an impeachment motion against a Supreme Court judge proved futile because the Lok Sabha Speaker rejected it. In four instances, the notices for moving impeachment motions against Supreme Court and High Court (HC) judges were followed up by forming inquiry committees.”

So, can the removal process for SC/HC judges be improved? Here is a humble suggestion to make the process easier and faster.

SC/HC judges could be prosecuted on corruption charges and having assets disproportionate to known sources of income upon confirmation by the chief justice of the respective HC, SC’s in-house probe committee, the CJI, and the subsequent approval by either the Union law minister, PM, or President. It need not go to Parliament for approval. Once confirmation is received from the HC chief justice or CJI, the concerned judge should cease to attend Court. Legislation should ensure that this process would be completed in a time-bound manner. Additionally, the SC/HC’s in-house committee must include a practicing Chartered Accountant selected by the CJI. If the case is of an SC judge, the in-house committee must include the leader of the opposition and law secretary. This is necessary for transparency. In public life, perception is more important than reality. Thus, it is imperative for the judiciary to be perceived to be above board.

Another contradiction can be seen in this incident. Recently, CJI BR Gavai said, “Neither the judiciary nor the executive and the Parliament is supreme, but it is the Constitution of India which is supreme and all three wings have to work as per the Constitution.” This is absolutely correct. The problem arises when a court interprets the Constitution and decides if the three arms—the executive, legislature, and itself—are following it. Thus, it seems to be a case of conflict of interest. This explains why the SC chose to interpret the Constitution and appoint SC/HC judges itself, but in an alleged corruption case, it chose to delegate the impeachment of an HC judge to the President/ PM.

So, till SC/ HC judges are not elected by the people (like the Executive), the Parliament is supreme. There is no constitutional framework to hold judges accountable, but one exists for the Executive, since elections are held regularly. The people can vote out a government, but to remove an HC judge, the SC needs to go to the Executive.

All must remember the words of the SC’s logo—‘Yato dharmah tato jayah’, or “Where there is righteousness (dharma), there is victory (jaya).

The purpose of this article is to provoke thought, not cast aspersions on the judiciary. If there is any error, it is inadvertent and not intended to defame or spoil the name of any individual judge or the judiciary at large.

The author is a senior chartered accountant and founder.

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