Removal of judges

What is removal of judges?

Judges can be removed from office during their tenure, on grounds of proved misbehaviour or incapacity. The Constitution provides that a judge can be removed only by an order of the president, based on a motion passed by both houses of the Parliament. The procedure for removal of judges is elaborate, making it a difficult process to remove judges. in the Judges Inquiry Act, 1968. Although not officially referred to as ‘impeachment’, the Constitution deals with removal of judges under Article 124 for Supreme Court judges and Article 217 for High Court judges, and the detailed procedure is elaborated under the Judges Inquiry Act, 1968. Judge under Section 2(c) of the Act refers to a judge of the Supreme Court or of a High Court, and includes the Chief Justice of India and the Chief Justice of a High Court. Notably, in the case of Justice Verma the procedure has been bypassed. So far, no judge has been impeached although the impeachment process has been initiated 7 times.

Official Definition

According to Article 124, a Supreme Court judge can be removed from office only by an order of the President passed, after an address by each House of Parliament supported by a special majority. The procedure set out by the Judges Enquiry Act, 1968 under Section 3 is as follows:

• A removal motion has to be signed by 100 members, in case of Lok Sabha, or 50 members, in case of Rajya Sabha and given to the Speaker/ Chairman, who can choose to admit or reject the motion.
• If admitted, a 3-member committee is constituted to investigate the charges (misbehaviour or incapacity). The committee consists of: (a) a Supreme Court judge; (b) one of the Chief Justices of the High Courts, and (c) a distinguished jurist, as per the opinion of the Speaker/ Chairman The committee frames definite charges against the judge and gives him/her a chance to respond in writing. Incase of allegation about physical or mental incapacity, a medical examination may be conducted. If the judge refuses to cooperate, the committee can presume incapacity.
• The judge shall be given a reasonable opportunity of presenting a written statement of defence.
• If the committee finds the judge to be guilty of the charges, the House in which the motion was introduced, can take up the motion for consideration. It has to pass the motion with special majority (majority of the total membership of that House and by a majority of not less than two – thirds of the members of that House present and voting), after which it goes to the second House.
• The second House also has to pass the motion with special majority.
• An address praying for the removal of the Judge shall be presented to the President by each House of Parliament in the same session in which the motion has been adopted, after which an order may be issued.

Article 218 provides that Article 124(4) and (5) apply for the removal of judges of High Courts.

Case laws

K Veeraswami v. Union of India

The judgment strikes a balance between holding judges accountable and protecting them. The Supreme Court ruled that High Court and Supreme Court judges are not immune from criminal prosecution for corruption under the Prevention of Corruption Act, 1988. However, to protect judicial independence, the Court established safeguards:

• An FIR cannot be registered without consulting the Chief Justice of India (CJI) first.
• Presidential sanction is required before prosecuting a judge, based on the CJI’s advice.
• Prosecution can proceed even before impeachment proceedings conclude.

Justice P.D. Dinakaran v Hon’ble Judges Inquiry Committee and others

This case highlights that removal proceedings must be conducted by an impartial and unbiased Committee, safeguarding the fairness of the process under constitutional principles.

Fifty Rajya Sabha members initiated a motion to remove Justice Dinakaran for alleged misbehaviour under constitutional provisions, and a Committee was formed to investigate the charges against him. Justice Dinakaran challenged the impartiality of a Committee member (Shri P.P. Rao), alleging bias due to Rao’s prior opposition to his elevation as a judge. The Supreme Court upheld the importance of impartiality and fairness in the investigation process, emphasizing the rule against bias as a fundamental part of natural justice.

The Court ordered the replacement of the biased Committee member to ensure a fair inquiry, without invalidating the Committee’s proceedings. The inquiry into the charges continued with the reconstituted Committee. However, Chief Justice of the Sikkim High Court PD Dinakaran on Friday resigned from his post, ahead of the commencement of the removal proceedings.

International Experience

3 main methods of judicial removal can be found in existing democratic constitutions:

1. Removal by a court judgment or internal judicial disciplinary process;
2. Removal by political actors—usually in the form of an address from the legislature requesting the removal of a judge for reasons that the legislature deems sufficient; and
3. Impeachment, which combines political and legal decisions.

Removal by a court judgment is more usual in civil-law jurisdictions, while common-law jurisdictions have traditionally relied more on removal by parliamentary address or impeachment.

United Kingdom

Judges can be removed only by the monarch following an address by both Houses of Parliament. This means that both the House of Commons and the House of Lords must agree on the judge’s removal. In practice, this mechanism is almost never used. Judicial removal in the UK is more theoretical than practical, reflecting a strong tradition of judicial independence and public trust in the judiciary. In modern times, there are extensive informal mechanisms and performance oversight systems that maintain standards without resorting to removal proceedings.

United States of America

Article II of the American Constitution provides that federal judges, who are appointed for life, may be removed only through impeachment. The House of Representatives may impeach a judge by a simple majority, and the Senate must convict with a two-thirds vote. Grounds for impeachment include treason, bribery, or other high crimes and misdemeanors. This mechanism ensures checks and balances but is used sparingly, reinforcing the judiciary’s independence. Only a handful of federal judges have been removed since the country’s founding.

Germany

It has a judicial self-regulatory system. Judges can only be removed through a decision of a judicial service court, which operates independently of the legislature. This process ensures that judicial accountability is handled within the judiciary itself. The grounds for removal include serious breaches of duty or behavior incompatible with judicial office. The involvement of judicial peers, rather than political actors, is intended to preserve impartiality and judicial professionalism.

France

According to the Article 65 of the Constitution of France, the disciplinary function is performed not by a court but by the Supreme Council of the Judiciary (Supérieur de la Magistrature), although the membership of that Council is primarily judicial, so the principle of disciplinary judicial self-regulation can be observed in the system for removal of judges in France.

The grounds for removal vary across different countries:

• Bangladesh – Misbehaviour or incapacity
• Canada – Incapacity or misconduct
• Denmark – Misconduct or a situation that makes the judge unworthy of the office
• France – Serious breach of duty
• Germany – Judicial misconduct or violation of judicial duties

• Ireland – Stated misbehaviour or incapacity
• Israel – Behaviour unbecoming a judge or inability to carry out judicial functions
• Italy – For reasons of unworthiness or incapacity

• Japan – Mental or physical disorder or misconduct
• Kenya – Inability to perform functions due to mental/physical incapacity, breach of code of conduct, bankruptcy, incompetence, or gross misconduct
• Namibia – Mental incapacity or gross misconduct
• Pakistan – Incapacity or misconduct
• South Africa – Incapacity, gross incompetence or gross misconduct
• United Kingdom – Incapacity or misbehaviour
• United States – Treason, bribery, or other high crimes and misdemeanours
• Singapore – Misbehaviour or inability to discharge functions due to infirmity of body or mind

Challenges

• Ensuring Impartiality and Fairness in Inquiry Committees: The Justice Dinakaran case underscored the critical importance of impartiality and absence of bias in the committees conducting removal inquiries. However, the appointment of members perceived as biased (e.g., due to prior opposition to a judge’s elevation) can lead to reasonable apprehension of bias, undermining the fairness of proceedings and potentially delaying justice.
• Balancing Judicial Independence with Accountability: The Judges (Inquiry) Bill, 2006 proposes a National Judicial Council composed solely of serving Supreme Court and High Court judges, aiming to preserve judicial independence but potentially limiting wider participation and external scrutiny. The Judicial Standards and Accountability Bill, 2010 attempts to balance judicial independence and accountability by introducing oversight mechanisms such as the National Judicial Oversight Committee with non-judicial members. However, the inclusion of non-judicial members raises concerns about possible encroachment on judicial independence, risking politicization or external influence over judges. The Bill was not passed by both houses, as it faced changes and challenges in the Rajya Sabha.
• Confidentiality vs Transparency in Complaints and Inquiries: Both Bills emphasize confidential inquiry processes to protect judges and avoid frivolous allegations. While confidentiality protects judicial dignity, it also risks lack of transparency, which may reduce public confidence in accountability processes. Furthermore, penalizing breaches of confidentiality, even of frivolous complaints, may deter genuine whistleblowers or public scrutiny.
• Risk of Delays and Misuse in Removal Proceedings: As seen in the Dinakaran case, judges can raise procedural objections or challenge the composition of inquiry committees, potentially delaying removal proceedings. Moreover, the broad scope for complaints from any person (in the 2010 Bill) risks frivolous or politically motivated complaints, even if penalized, which could be used to harass judges.
• Lack of Clear, Uniform Standards for ‘Misbehaviour’: Misbehaviour has not been defined either in the Constitution or in the 1968 Act. The Bills of 2006 and 2010 seek to address ‘misbehaviour’ but do not provide a clear, exhaustive definition, leaving room for subjective interpretation. This ambiguity can cause inconsistency in removal proceedings, impacting judicial morale and the perception of fairness.

Removal/Termination of Judicial Service in District Judiciary

State	Relevant Rules	Description
Chattisgarh	Chhattisgarh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2006 Chhattisgarh Lower Judicial Service (Recruitment and Conditions of Service) Rules, 2006	Rule 9: Empowers High Court to terminate District Judge appointed under Rule 3 at any time before officiation or completion of probation. Rule 11: Empowers High Court to terminate Civil Judge (Junior Division) at any time before officiation or completion of probation.
Uttarakhand	Uttarakhand Higher Judicial Service Rules, 2004	Rule 23: The High Court can make recommendations to the Governor Civil Judge (Senior Division) for dispensation of services while on probation.
Madhya Pradesh	The Madhya Pradesh Lower Judicial Service (Recruitment and conditions of service) Rules, 1994	Rule 11: The High Court can at any time during of probation: In the case of Civil Judge (Entry Level), recommend termination of his service and In the case of Senior Civil Judge, to revert him on account of unsuitability for the post.
Delhi	The Delhi Higher Judicial Service Rules, 1970	13. All persons appointed to the service on probation shall be confirmed at the end of the said period of two years: Provided that the Administrator may, on the recommendation of the High Court, extend the period of probation, but in no case shall the period of probation extend beyond the period of three years. 14. The services of a person on probation are liable to be terminated without assigning any reason. 7. Residuary matters. In respect of all such matters regarding the conditions of service for which no provision or insufficient provision has been made in these rules, the rules, directions or the order for the time being in force, and applicable to officers of comparable status in the Indian Administrative Service and serving in connection with the affairs of the Union of India shall regulate the conditions of such service.

Ganesh Ram Berman v. High Court of Chhattisgarh and Ors. clarified that the High Court cannot terminate services of district judges or impose any punishment of reduction in rank under Article 235 of the Constitution. Article 235 empowers Full Court of the High Court to make recommendations to the State Government on termination of services of District Judge.

The process of removing judges in India is constitutionally safeguarded and purposefully rigorous in order to maintain judicial independence. While the procedure outlined in Article 124(4) of the Constitution ensures security of tenure, it also makes accountability mechanisms difficult to enforce in practice. “Judges’ dilemma: On the judiciary, its accountability”, an editorial by the Hindu, highlights the judiciary’s internal resistance to transparency and external scrutiny, even as public confidence in judicial integrity is periodically shaken by controversies. The editorial stresses that the judiciary lacks an effective, structured mechanism to address complaints and enforce ethical standards beyond the rare and politically fraught impeachment process.

To address the vacuum in accountability short of impeachment, the Government has laid out grievance redressal procedures for judicial misconduct. According to the Department of Justice's official grievance guidelines, citizens may submit complaints regarding the conduct of judges to the President of India or Chief Justice of the concerned High Court, though these are largely limited to serious allegations and don't guarantee formal inquiry or action. The Press Information Bureau’s release (2022) underscores that while such grievance mechanisms exist, they do not substitute the constitutional process of removal nor provide for a statutory oversight body. Thus, the judiciary’s insulation from political interference coexists with an absence of institutionalised public accountability, prompting calls for a balanced framework that preserves independence while addressing legitimate concerns of misconduct.