A judge of a 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 the Parliament has been presented to him in the same session for such removal.

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The address must be supported by a special majority of each House of Parliament (i.e., a majority of the total membership of that House and majority of not less than two-thirds of the members of that House present and voting).

The grounds of removal are two– proved misbehaviour or incapacity. A judge of a high court can be removed in the same manner and on the same grounds as a judge of the Supreme Court.

Judges Inquiry Act, 1968

The detailed procedure for the impeachment of a judge is laid down in the Judges Inquiry Act, 1968. It regulates the procedure relating to the removal of a judge of a high court by the process of impeachment:

(1) A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman.

(2) The Speaker/Chairman may admit the motion or refuse to admit it. There is no time limit for the Speaker/ Chairman to act on the motion.

(3) If it is admitted, then the Speaker/ Chairman is to constitute a three-member committee to investigate into the charges.

(4) The committee should consist of (a) the chief justice or a judge of the Supreme Court, (b) a chief justice of a high court, and (c) a distinguished jurist. The committee frames the charges, and can seek a medical test for the judge if the impeachment charge is on grounds of mental incapacity. The committee has the power to regulate its procedure, call for evidence, and cross-examine witnesses.

(5) The committee will then submit a report to the Speaker/ Chairman with its findings. The Speaker/ Chairman will place the report before Lok Sabha/ Rajya Sabha “as soon as may be”. If the report finds that the judge is not guilty, the matter will end there.

(6) In case of a guilty finding, the report of the committee is adopted by the House in which it was introduced, and then an address is made to the President by each House of Parliament in the same session, seeking the judge’s removal. A motion will be put to a vote, and once the process is over, the same will be repeated in the other house.

(7) After the motion is passed by each House of Parliament by special majority, an address is presented to the president for removal of the judge.

(8) Finally, the president passes an order removing the judge. From the above, it is clear that the procedure for the impeachment of a judge of a high court is the same as that for a judge of the Supreme Court. It is interesting to know that no judge of a high court has been impeached so far.

Internal inquiry within the judiciary

The impeachment process differs from the internal inquiry within the judiciary.

Process of inquiry

The need for an internal mechanism within the judiciary was felt in 1995, after allegations of financial impropriety surfaced against then Bombay High Court Chief Justice A M Bhattacharjee. After the Bombay Bar Association moved a resolution calling for the judge’s resignation, a writ petition was filed before the Supreme Court seeking to restrain the Bar.

While hearing the case, Justices K Ramaswamy and B L Hansaria of the SC noted the “hiatus between bad behaviour and impeachable misbehaviour” (C. Ravichandran Iyer v. Justice A.M. Bhattacharjee). The SC noted there was no process to hold a judge accountable for “bad conduct inconsistent with the high office”, when such conduct did not meet the high bar of impeachment set by Article 124 of the Constitution.

Thus, to address such issues, the SC constituted a five-member committee comprising the senior-most HC Chief Justices at the time, to devise the procedure “for taking suitable remedial action against judges, who by their acts of omission or commission, do not follow the accepted values of judicial life…”

The committee submitted its report in October 1997. It was adopted with amendments in a full court meeting of the SC in December 1999.

Supreme Court revisited its in-house procedure in 2014

In 2014, when a woman additional district and sessions judge from Madhya Pradesh filed a complaint of sexual harassment against a sitting judge of the High Court, the SC revisited its in-house procedure. Justices J S Khehar and Arun Mishra summarised and explained this process through seven steps. (Additional District and Sessions Judge ‘X’ v. Registrar General High Court of Madhya Pradesh).

(1) Essentially, this process begins when the Chief Justice of a HC, the CJI, or the President of India receives a complaint. The CJ of the HC or the President will forward the complaint to the CJI. This complaint can be dropped at any stage, if not found serious enough by the CJI. However, to test its veracity, the CJI can seek a preliminary report from the CJ of the HC concerned.

(2) If the CJ recommends that a “deeper probe” is warranted, the CJI may examine the recommendation and the statement of the judge facing the accusations. A three-member inquiry, comprising two other HC Chief Justices and one HC judge, can be ordered.

(3) This committee has the power to devise its own procedure “consistent with the rules of natural justice”, such as hearing both sides in a case. Once the inquiry has been concluded, the committee will submit its report to the CJI. This report must state whether:

(i) There is any substance to the allegations against the concerned judge and,
(ii) If there is sufficient substance to the allegations, whether they are serious enough that they require initiation of removal proceedings against the judge.

(4) If the report finds there is substance to the allegations, it will be sent to the judge concerned as well. If the committee concludes that the misconduct is not serious enough to warrant removal proceedings, the CJI may “advise” the judge concerned and direct that the committee’s report be placed on record.

(5) If the committee decides that the allegations are serious enough to initiate removal proceedings, the CJI will advise the concerned judge to resign or retire voluntarily.

(6) If the judge does not accept, the CJI will direct the HC Chief Justice not to assign any judicial work to said judge.

(7) Further, the CJI will inform the President and the Prime Minister of the committee’s finding that removal proceedings should be initiated.

It is interesting to know that no judge of a high court has been impeached so far.