Introduction
Justice Shekhar Kumar Yadav’s controversial speech has sparked a significant debate about judicial accountability in India. With allegations of bias against the Muslim community, opposition parties have called for his removal, raising critical questions about the challenges in holding higher judiciary judges accountable. While India’s Constitution provides a framework for the removal of judges, the process remains cumbersome, leaving room for evasion of accountability. This article delves into the removal process, historical precedents, and much-needed reforms in India’s judicial accountability system.
Context:
- A Speech delivered by Justice Shekhar Kumar Yadav of Allahabad High Court that made his biases apparent against the Muslim Community.
- This has caused uproar and many opposition parties have demanded his removal from office.
- Also highlight the difficulty in India’s review mechanism to hold judges of higher judiciary accountable.
Important Articles and Provisions dealing with removal of judges:
- The provisions for this mechanism flows from Articles 124(4), (5), 217 and 218 of the constitution of India and those of the Judges (inquiry) act 1968.
History of removal:
- Only two judges out of 7 so far, aside from justice Yadav against whom removal has been attempted, have been found guilty for their misbehavior by the 3 member committee.
- 1. Justice V. Ramaswami
- 2. Justice Soumitra Sen
Note: Justice P.D Dinakaran resigned on the same date when the first sitting of the 3 member panel were called.
Process of removal:
- A judge of the Supreme Court or High Court can be removed from his office by an order of the president.
- The president can issue the removal order only after an address by parliament has been presented to him in the same session for such removal.
- Grounds– There are two grounds explicitly mentioned in the constitution: Proved Misbehavior or Incapacity.
- The address must be 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 2/3rd of the members of that house present and voting.
How the review mechanism functions?
- The review mechanism requires “proved misbehavior or incapacity” to be decided by a three-member committee set up under the Judges (Inquiry) Act, 1968.
- This committee functions like a trial court, but is set in motion only after a successful attempt to impeach the concerned judge is moved either in the Lok Sabha or the Rajya Sabha, which must be approved by the presiding officer of the House — the Speaker in the case of the Lok Sabha, or the Vice-President/Chairman in case of the Rajya Sabha.
Difficulty in holding judges of the higher judiciary accountable:
1. High bar for impeachment:
- The process requires proved misbehavior or in capacity and a special majority in parliament making it almost impossible to remove errant judges.
2. Resignation to evade accountability:
- Judges like Soumitra Sen and PD Dinakaran resigned before the completion of impeachment proceedings, avoiding scrutiny while retaining post retirement benefits.
3. Immunity Misuse: Cases of V. Ramaswami, Soumitra Sen and PD Dinakaran highlight that members of India’s higher judiciary enjoy a disproportionately greater level of immunity compare to elected officials.
- Continue to enjoy post retirement benefits like pensions and other benefits.
- Justice V.Ramaswami post retirement was appointed as chair person of Tamilnadu law commission.
4. Limited scope for independent oversight: The judiciary lacks an independent review mechanism outside the parliament driven impeachment process, leaving little room for holding judges accountable in real time.
What should be done?
1. The Forum for Judicial Accountability: The purpose of impeachment is not merely removal from office, but a more substantial one about accountability to the people whose trust is alleged to be breached and whose confidence in judiciary needs to be reinforced,”
2. Arguments by Mr. Venkatesan and Mohan Gopal: A view that the resignation would result in the investigation and proof process being aborted would in effect place in the hands of the judge who is the object of the investigation the power to end the investigation against him by resigning needs to be curbed.
3. Streamlining the Impeachment Process: Simplifying procedures and reducing the threshold for initiating impeachment could make it easier to hold judges accountable.
4. Clear Disqualification Guidelines: Introducing clear guidelines regarding disqualification from future judicial roles following findings of misconduct would reinforce accountability.
5. Legislative Reforms: Revisiting the Judges (Inquiry) Act, 1968, to address its limitations and ensure it meets contemporary standards for accountability is crucial for restoring public confidence in the judiciary.
Conclusion
The case of Justice Shekhar Kumar Yadav underscores the urgent need for a robust, transparent, and efficient mechanism to hold judges of the higher judiciary accountable. While the Constitution lays down provisions for removal, the high bar for impeachment, combined with the lack of independent oversight, creates significant hurdles. By streamlining the process, introducing legislative reforms, and ensuring disqualification guidelines for proven misconduct, India can strengthen public trust in its judiciary and uphold the principles of justice and fairness.
FAQs
1. What led to the controversy surrounding Justice Shekhar Kumar Yadav?
Justice Yadav’s speech allegedly exhibited bias against the Muslim community, leading to public uproar and demands for his removal.
2. How can a judge of the higher judiciary be removed in India?
Judges can be removed through an impeachment process involving proved misbehavior or incapacity. This requires a special majority in Parliament and the President’s approval.
3. What challenges exist in holding judges accountable in India?
The high bar for impeachment, the ability of judges to resign to evade accountability, and the lack of independent oversight make it difficult to hold judges accountable.
4. What historical cases highlight the challenges in removing judges?
Cases like Justice V. Ramaswami and Justice Soumitra Sen illustrate how judges evaded accountability, with only two out of seven removal attempts succeeding.
5. What reforms are needed in India’s judicial accountability system?
Reforms such as streamlining the impeachment process, introducing disqualification guidelines, and revising the Judges (Inquiry) Act, 1968, are essential to improve accountability.
6. What role does the Forum for Judicial Accountability play?
The Forum for Judicial Accountability advocates for judicial transparency, emphasizing the need for mechanisms to restore public trust in the judiciary.
