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The Process Of Impeachment Of Judges
Having completed 60 years of our Constitution being in force, India’s literati has been prone to introspection on the seeds sown on the day of January 26th, 1950 and the distance we have travelled since then. Taking the cue from those who are better endowed at the same, it is the events of the time that necessitate a cold, hard look at the provisions surrounding the Impeachment of Judges.
A.124 of the Constitution envisages the establishment of the Supreme Court of India and the appointment of judges. Further, in A.124(4), the guidelines surrounding the Impeachment of Judges are enshrined. This piece will argue that the extremely lofty conditions necessary to be proven for seeking impeachment is nothing more than a reminder of another era and is losing its meaning today. Also, the piece will delineate the problems; structural and application-wise, in the entire process of Impeachment. The Constitution has provided similar impeachment proceedings for Judges of both the Supreme Court and High Court.  Therefore, theoretical references to ‘Judges’ applies to those of both in the piece.
The Constitution, armed with the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969 provides for the entire process of Impeachment. The same is initiated with the presentation of a motion for impeachment in either of the houses of the Parliament which is then looked into by the Speaker/Chairman.  After that, a three member committee is formed by them to look into the charges framed against the Judge in question.  At the end of the fact-finding by the committee, a report with the recommendations is submitted to them. In the event that the committee recommends that the judge be impeached, the house of the Parliament will vote on the same and if a two third majority of at least half the strength concurs, then the motion of impeachment shall be placed before the President for his assent. The process thus, involves the Judge being arraigned before both houses of Parliament. 
Chief Justice Balakrishnan has admitted in the past that the arrangements for impeachment were aimed at being difficult and onerous in order to keep the Judges independent of any external pressure.  Protection of the right of the judiciary to decide a case with full freedom of expression and ability to use discretions is a noble pursuit and one that was ably handled by A.124(4). However, in the last two decades, there have been murmurs getting louder that speak of rising judicial impropriety. Three notable cases concerning Justices Soumitra Sen  , P. Dinakaran  and of course, the very first of the lot, Justice Ramaswamy  have arisen. Comments by retired judges speaking about a high percentage of impropriety in the judiciary  and reports of judges being asked to resign after an in-house review have not helped the reputation of the judiciary. 
With the sheer volume of such cases rising coupled with the problem of the Information Commission in India mandating disclosure of assets of all judges, the Judiciary finds itself bearing the heat of Judicial Accountability: the latest buzz word on the block. With the onslaught for rising accountability, the onerous provisions of Impeachment of Judges, I find are at odds with the current phase that the judiciary itself is going through. The ‘organic document’ it seems, does hit discordant notes when taking into account that the Impeachment arrangements are simply not in tune with the requirement of increasing transparency in the opaque walls of the Judiciary.
Such is the mandate of the Constitution that under the auspices of Chapter IV, the Parliament can formulate the rules regarding the initiation and procedure of the Impeachment process, something they already have in the form of the Judges (Inquiry) Act, 1968.  Under the said act, the process is initiated with presentation of a motion of impeachment by at least 50 members of the Rajya Sabha or 100 from the Lok Sabha. After that, the Speaker or Chairman as the case may be, on the basis of the allegations framed, forms a three-member bench to look into the same. If the bench, after looking into the charges and acting as a body with powers of a civil court feels that the concerned Judge is innocent, the same is recommended to the House and the proceedings are dropped. It is the alternative wherein lies the rub. If the bench recommends that the judge in question be impeached, the said decision will evoke a process of voting in the house on the basis of which it is decided if the Judge is to stay or not. 
The rationale behind this procedure is baffling and surely counter-productive to the ideals that the Constitutional Assembly [hereinafter ‘CA] held dear. For argument’s sake, it is safe to assume that the provisions enshrined by the legislature were for the ultimate purpose of protecting the independence of the judiciary as was the aim of the CA. However, the method pursued by the legislature in the Act of 1968 falls abysmally short of the mark as the same makes judges susceptible to a fickle political process of voting which may or may not impeach judges despite a 3-member committee holding the Judge guilty.  Such an event is a travesty of natural justice as there is propensity for a ‘guilty’ judge to be let off on the whims of a political process of voting. Precedent comes in the form of Justice Ramaswamy in whose case the Congress felt it best to abstain from voting at all. 
From a practical viewpoint, it must be understood that our Constitution mandates that the motion for impeachment be initiated by a certain number of members of either house. This means that a claim for impeaching a particular judge must be made aware to the parliamentarians who will then decide to initiate the motion. My point is that parliamentarians enjoy discretion to file the motion for impeachment. For instance, Shanti Bhushan, in an anecdote in Courting Destiny tells the story of how he went around to numerous MPs to seek their support in commencing the process of impeachment against Justice Ramaswamy. He was allegedly behind the misuse of public funds to the tune of several lakhs. However, various senior politicians like Atal Behari Vajapayee who were capable of forging a party stance on an issue could not believe that an impeachment process was necessary in light of ‘petty crimes of a few lakhs.  ’ Thus, this was an instance of how the representatives of the people were incapable of viewing this process devoid of their political sensibilities and this showed that the process was flawed.
Another instance that was related by Bhushan pertained to the attempted impeachment of Justice MM Punchhi. Justice Punchhi had committed various acts which amounted to misdemeanours and for the same reason; commencement of the impeachment process was sought. However, this case too was subjected to political intervention in that various politicians refused to commit themselves to the cause owing to the fact that the judge was slated to be the next Chief Justice of India. Hence, no politician wanted to take the risk of rubbing such a senior judge the wrong way.  In other words, this anecdote of Bhushan’s is a flagrant instance when misdemeanours of a Judge of the Supreme Court went un-investigated simply on the grounds that politician wished to hedge their risks for the future.
Further, my sense is that the entire process stinks of a possibility of harming judicial independence. This stems from a possibility of Judges being harassed to toe the ideology of a party in majority or face their wrath in an impending motion of impeachment. Even if quashed, the very initiation of a ‘criminal’ procedure will do no favours to an already dwindling confidence in the propriety of the Judiciary. The dysfunctional working of the legislature with respect to the initiation of the motion of impeachment and the handling of the committee’s report alludes to intervention where none is required. The Supreme Court has crafted a decision which provides that the independence of judiciary as mandated by the separation of powers doctrine is a part of the basic structure of the Constitution.  This is testament to the fact that Judicial Independence is taken very seriously indeed by the Apex body and it need not put up with the same being risked.
Misbehaviour and the burden of Proving it.
The Constitution has provided for the impeachment of judges on the grounds of proven misbehaviour.  However, the Constitution has acted in bravado while doing so seeing as there is no mandate till date even by statute as to what constitutes ‘misbehaviour’. In other words, the framers had risked the independence of judiciary subject to any interpretation of ‘proven misbehaviour’ by the legislature. This extremely vague conditionality could have prompted a response which set the limit for judicial impropriety very low and thus, subverted judicial independence. While it could even be argued that keeping an indeterminate meaning did more for the protection of the judiciary, I believe the same approach was counter-productive to the aim of this area of Law as the ambiguous interpretation subjected the judiciary to even more frivolous complaints as there was no clear identification of the conditions to initiate impeachment.
Judicial Independence is certainly not bolstered by keeping vague, the grounds on which a claim for petition is based.  Our MPs are not the best ambassadors of literacy and while this is not representative of their intelligence, it is a disquieting thought to believe that a party whip can garner the required numbers if required, for commencing impeachment based even on flimsy grounds.  As elucidated earlier, it is not uncommon to believe that embroiling a person in litigation is akin to defaming him as the natural though at initiation is that the litigant is seeking redressal for his rights infringed by the defendant. Now, comparing this position with Impeachment, it is clear that the latter is more protected process for the reason that the Judiciary is the watchdog of the country. It is an institution whose disrepute we can ill-afford considering the expansive role it plays and additionally, its dwindling reputation owing to structural problems. Therefore, lacunae in the form of vague conditions are areas of note that must be done away with.
To its credit, the Supreme Court has acted upon this lacuna ably by using the Service Law definitions pertaining to misbehaviour on the grounds of which an official can be removed of his position. The issue is that a clear delineation of the grounds has not been tendered till very recently.
Starting the chain of ambivalence, it was believed that the word ‘misbehaviour’ in A.124(4) was sufficiently elastic to include within its umbrella, a slew of actions that could be determined to be opposed to the concept of ‘good conduct.’ The decision did not offer protection for grave misconduct but at the same time, protected him from being charged unnecessarily by holding that while every act or omission may not be good conduct, it may not amount to ‘misbehaviour’ as per 124(4).  Protection was provided to the judges by holding that error in judgment did not amount to gross misbehaviour. 
Post the Ramaswamy fiasco in 1992, the Supreme Court again took up the issue of what constituted impeachable conduct on the part of the judiciary. However, it offered no further light on the matter in that, it only elucidated that mere abrasive conduct on the part of a judge could not be construed to be misbehaviour. It discussed the possible implications of the term and alluded it to be similar to the conditions for solicitors. In other words, they talked vaguely of misbehaviour as being actions that would make them unworthy of the profession. 
A very concrete view has been provided finally by the Supreme Court by taking into account the mandate of Service Law and comparing the grounds for removal with those of the UPSC chairman. The court identified the composition of the term ‘misbehaviour’ to comprise of wrong, improper conduct. The conduct that could be adequately termed as impeachable referred to action that involved some degree of mens rea and a wilful abuse of constitutional office, misconduct, corruption, lack of integrity or any act of moral turpitude. A persistent failure of performing the duties of the office with integrity and commitment was also a ground. 
Thus, an adequately stringent requirement has been laid down by the Supreme Court which does make the judiciary a protected entity but not infallible and hence, leaves space to make it prone to attack. My only grouse with the current state of affairs is that a committee formed under the Inquiry Act  would look into the aforementioned case laws to determine the scope of guilt. However, I believe it is the prerogative of the legislature, in the interests of maintaining a check and balance on the actions of the watchdog as mandated by the doctrine of separation of powers that it should stipulate definite criteria for alleging misbehaviour by a judge as provided in the Reference case. 
An issue I disagree upon with Mr. Seervai is the nature of the impeachment proceedings. His treatise on the Constitution of India states vociferously that the impeachment procedure that is initiated in Parliament treats the term ‘proven misbehaviour’ differently from that as understood at the process of voting after the committee established by the speaker has submitted its report after the fact-finding.  I find that that this view is very pedantic in that it must be understood that any such process must aim at preventing disrepute of the judiciary until absolutely necessary. Motions for impeachment have a very deleterious effect on the reputation of the judiciary and I believe that we should not confuse the process of fact-finding in framing charges along with the process of impeachment.  It is only on the confirmation that certain charges can be framed against a judge that the process must be initiated. Otherwise, there is a chance that we could be inundated with charges with no legal basis behind them and initiate impeachment procedure only to find the truth later. However, once the initiation is in motion, the damage to reputation to the judge and judiciary has already occurred. We lack an institutional framework to look into allegations against the Judiciary apart from subjecting judicial misconduct to impeachment.  Hence, my only observation is separation of process of Impeachment into two heads: Fact-Finding and the actual process of removal.
Inexact Science in Initiation
The process, as mandated by status quo demands the Speaker take cognizance of the motion for impeachment and constitute a three-member committee to look into the allegations framed against the judge in question. The Inquiry Act provides for the composition to be as follows: a judge of the Supreme Court, A High Court Chief Justice and an eminent jurist.  This suffers from one major problem; the Speaker is not the most suitable person for choosing the bench of the committee which would then proceed to look into the claims for impeachment. This has been adequately displayed in the case of Justice Dinakaran in whose matter, the Chairman of the Rajya Sabha appointed a three member committee comprising of Justice V S Sirpurkar of the Supreme Court, Justice A R Dave and the eminent jurist P P Rao.  However, the Chennai-based Forum for Judicial Accountability had filed a petition before Vice-President Hamid Ansari seeking a reconstitution of the committee as Justice Sirpurkar had served with Justice Dinakaran and he had appeared before the media already citing support for the latter. Thus, the FJA claimed that there was an element of bias that would taint the fact finding process and consequent recommendation of the committee.  The effect of such a mistake on the part of the head of the house is representative of the fact that the political circus employed by the Constitution is unnecessary and counter-productive to the expeditious handling of the matter.
It is important to remember that A.124 mandates that there shall be a Supreme Court including a Chief Justice and the other Judges as specified by the Parliament. While conducting the fact finding, very often judges are asked to remove themselves from adjudicating pending matters until the process is over.  Thus, while the Judge is not removed as per the mandate of the Constitution, he certainly is unable to perform his duties as the Constitution requires and in order to remedy this, it is necessary that the process be completed quickly.  What I am driving at is that there should be no unnecessary resort to political intervention where no purpose would be served. As I will elucidate in my recommendations, it would be more efficacious to give the power of forming such a committee to a more involved and aware body.
Fallout of an Onerous Process
I have discussed ad nauseam the problem of the onerous requirements of filing a motion for impeachment of a judge. One major issue is that since the procedure is very difficult and stringent, even the judiciary is not pursuing the ends of justice in seeking impeachment proceedings against one of their own. Instead, they have resorted to means crafted in cases  and by consensus wherein they can keep a check on the behaviour of their brethren by way of in-house review. There have been numerous instances wherein the judiciary has acted secretively and taken action on a case to case basis and also forced judges to resign from their post on grounds that would clearly constitute misbehaviour as per A.124(4).  While this initiative taken by the Court is admirable and much required in light of the fact that disciplining judges is supremely difficult under our Constitution, it is not the answer to the problem. Judicial creativity and initiative in crafting in-house rules to discipline judges is not the solution to the problem to A.124. Instead, the solution lies in simplifying the process to the extent that judicial impropriety to the extent of action which is ‘impeachable’ is subject to review using the process of impeachment.
The fallout of this difficulty is that judges are effectively taking ‘justice’ in their own hands and are imposing measures which though are in the best interest of the reputation and independence of the judiciary, lie outside the mandate of the Constitution. One major problem in the case of impeachment of High Court is that these measures include those of transferring errant judges to other high courts as a form of punishment.  The very thought of this measure is preposterous and contrary to the aim of disciplining the judges for their impropriety. Although the Supreme Court has come ahead to deny that transfer of judges is not punishment,  their actions seem to suggest otherwise. The latest news to do the rounds for instance is that while Justice Dinakaran awaits the recommendation of the committee formed for his impeachment, it is believed that he will be transferred to the High Court at Guwahati.  This is not the first time that this tool is being employed and protests have been launched earlier by local bar associations against the transfer of errant judges instead of commencing concrete proceedings.  This archaic and inane practice must be checked by making the process of impeachment more approachable.
Having established my contentions, the focus of my piece is thus, to ensure that the Independence of the Judiciary remain intact. The aim of the reforms I suggest, move at raising the bar for accountability of judges while at the same time ensuring that their independence is not infringed.
Formation of a National Judicial Commission
The essence of the NJC has been in legislative blueprint for two decades now.  The modalities of the recommendations of the bill have changed from time to time however and have constantly adapted itself to the criticisms of the power and composition of the Commission. There have been two successive bills namely the Judges (Inquiry) Bill, 2006 and the Judges (Inquiry) Bill, 2008 recently.
Gleaning wisdom from their recommendations  , the proposal that I believe must be followed in order to lay down a stringent yet approachable method to impeachment is as follows: A permanent body, National Judicial Commission must be set up whose composition of 5 members is shuffled every 5 years. The composition of the Commission must be in the manner prescribed: Chief Justice of the Supreme Court, a senior Supreme Court Judge chosen by the Speaker of the Lok Sabha, a Chief Justice of a High Court chosen by the Leader of Opposition and two eminent jurists appointed by the members of the Bar Association.  The working of this body is not to subvert the jurisdiction of the Parliament to initiate proceedings. On the contrary, it is only a dedicated forum to regulate the disciplining the members of the Judiciary. The aim of the body among others, including appointment of judges will mainly deal with looking into allegations of impropriety and misconduct against the members of the Judiciary. The work of the NJC will be to initiate disciplinary proceedings against the said judge and the powers vested in the body will be to the tune of imposing minor measures such as issuing advisories, requesting retirement, stopping assignment of judicial work for a limited time, issuing a warning and censure or admonition which might be in the nature of being public or private.  Their work shall be subject to scrutiny by a Parliamentary Committee formed for the said purpose. In case of heavy work load, a member can even be changed on such a request. In addition to this, I believe that power must be vested in this body to initiate the process of fact finding. This can be done by making necessary amendments to the Judges (Inquiry) Act, 1968 and consequently, allow filing a review to the eminent jurist on the panel of the NJC to consider taking cognizance if the same does not happen with the house of Parliament. However, in order to ensure that the ideals of Separation of Power stay untouched, the first point of initiation will remain the Parliament. Thus, it is ensured that the checks that the three organs maintain on each other stand. My proposal would stand as I propose a mere watering down of the Doctrine, not subverting it altogether.
The second major reform is to do away with the committee formed by the head of the house to look into the charges framed against a Judge as well as the politicized process of voting once a committee has tabled its recommendation. In place of this, every petition for impeachment must now be referred to the NJC which will exercise the same power of constituting a 3 member bench of the same composition as before. If the Committee deems a judge to be guilty, the NJC must be vested powers to impeach the said Judge by recommending it to the President which will be binding on him. The Law Commission did not want to give this power to the NJC  but my sense is that this will take the sting out of the attempt to make judges accountable in an approachable and attainable manner. It is important to remember that the course of action to be taken will be on the basis of rules framed by the NJC and thus, there will no arbitrary action on a case to case basis. The Legislature is not new to introducing time-bound legislations  and it can certainly engage in the same again by making sure that such matters are heard expeditiously.
The implication of the idea is thus, that a dual method of seeking impeachment, one being the traditional method of initiation in the Judges (Inquiry) Act, 2005 which culminates into reference to the NJC whose appointed bench will then adjudicate with full authority. The other is via a matter being reviewed by the jurist on the panel of the NJC after it is rejected by parliamentarians on the basis of which the same process may be followed. The NJC is a novel concept for India only; elsewhere, it is a common tool to check the judiciary’ actions. Similar bodies been constituted in several countries such as USA, UK, Germany and Sweden. 
The plan I propose is beneficial on several grounds: firstly, it establishes a dedicated forum to hear cases of judicial impropriety and hear charges of misconduct against judges. Secondly, it does away with the political process of voting which was initiated when the Committee regarded a Judge to be guilty. Thus, risks of the Ramaswamy fiasco happening again shall be averted. There is necessity in preventing the same as the proceedings for impeachment should be regarded as extraordinary proceedings. It should not be considered a simple check on the powers of the Judiciary as the process itself is inherently judicial and involves an adjudication of guilt. A process so innately judicial and important for the reputation and independence of the judiciary must be in control of a responsible and specialized body comprising of the best possible composition for the same. In any case, the Legislature need not feel threatened by regarding it as infringement of Separation of Powers as in actuality, the process of Impeachment refers to that of the President in the Constitution whereas with respect to judges, it is removal. Thus, the Constitution has created an obvious differentiation in the removal procedures of both functionaries on purpose. The Separation of Power argument will certainly hold on behalf of the Parliament with respect to the impeachment of the President whereas for Judges, I feel there is an adequate caveat it carves out to allow a different procedure.  My humble attempt has been to increase accountability while making Judges independent of any extraneous pressure. It is not impossible to imagine that making the functionary of the judiciary decide on Impeachment matters would actually act as a safeguard for independence of Judges as a reason of the flaws I have delineated above. 
Thirdly, the flexibility given to the NJC on being referred a matter by the House of Parliament is in clear display as it is up to the discretion of the NJC to decide if the offence committed by the Judge is slight enough to be met with minor measure as aforementioned or grave enough to require impeachment proceedings.  The Bill of 2005 suggested two main methods of initiation: A reference method which is the procedure currently. The other is a ‘complaint procedure’ under which any person can file a complaint to the NJC for offences that demand minor measures against a judge.  I find this method to be satisfactory but it must be ensured that the only remedy in such a case is a minor measure to check harassment.
Fourthly, the problems that can be faced in the old proceedings of presence of conflict of interests in the committee so formed can be averted as it to be assumed that there is no better judge to make sure that a bench so formed is impartial and the best for the matter at hand. It must not be forgotten that numerous advocates for judicial accountability are members of the bar such as Indira Jaisingh, Shanti and Prashant Bhushan, Fali Nariman and Ram Jethmalani among others.
Finally, it is complained that sitting Judges not be entrusted with permanent in-house review as the model has failed in other institutions owing to heavy workload and conflict of interests. 
The NJC is a symbol of an impassioned plea to enable the watchdog to be protected and still accountable for its actions outside the professional realm. The Parliament was granted all-encompassing powers by the Constitution to ‘guard the guard’ but has not taken seriously the implication of this power by misusing it in the ways aforementioned.