Parliament can initiate process to remove judge even when CJI does not recommend it: Supreme Court

The Supreme Court on Thursday said that the parliament can initiate the process for removal of a judge even when the Chief Justice of India (CJI) decides to close the matter against the judge in question.

The Bench of Justices Dipankar Datta and Augustine George Masih was dealing with an argument that the in-house procedure established by Supreme Court to probe the complaints against judges was a parallel and extra-constitutional mechanism.

The Court asserted that the Parliament's powers on the issue remains unfettered.

"Report or no report, recommendation or no recommendation, whatever is the case, the Parliament’s power to initiate proceedings for removal of a Judge for alleged misbehaviour or incapacity remains unfettered. Even though there could be a case where good grounds for initiation of proceedings do exist, the Parliament may in its wisdom elect not to go ahead to initiate proceedings for removal," the Court held.

It further said,

"Contrarily, even if it is reported by the Committee under the PROCEDURE that there exists any of the two situations [para 5(a) or 5(c)] and the CJI, accepting such report, does not make any recommendation, nothing prevents the Parliament to initiate proceedings for removal if for reasons aliunde it considers necessary so to do."

Notably, the Court also opined that if the parliament, despite a strong indication of a judge either having indulged in misbehavior or suffering from incapacity, does not initiate any proceedings for his removal, no proceeding in a judicial forum "would perhaps lie" for activating the Parliament to have such judge removed from office.

"The power, competence, authority and jurisdiction of the Parliament to decide what is in the best interests of the nation is left untrammelled by the PROCEDURE; hence, it is fallacious to argue that the PROCEDURE is a parallel and extra-constitutional mechanism for removal of a Judge," it added.

The judgment was passed on Allahabad High Court Justice Yashwant Varma's plea challenging the in-house inquiry that followed the discovery of unaccounted cash during a fire at his official residence in Delhi.

After a fact-finding committee submitted its report to the CJI recommending initiation of removal proceedings, the CJI forwarded the report along with the judge’s written response to the President and Prime Minister. The judge then moved the Court against the in-house committee report. He also argued that the procedure was unconstitutional.

However, the top court today ruled that the in-house procedure is not violative of the Judges (Protection) Act. It also observed that it was unreasonable to expect the CJI to not act against a judge facing serious allegations.

"It is unreasonable to even think that despite an incident of the present nature, the CJI would wait for the Parliament to take action. As observed before, it is up to the Parliament whether or not to activate Article 124. Left to him, the CJI upon being informed of a Judge’s remissness does have the authority – moral, ethical and legal – to take such necessary action as is warranted to keep institutional integrity intact. Any adverse impact on the credibility of the institution could prove dear," it said.

The Court also stressed that while the procedure expressly permits withdrawal of judicial work from a judge as an extreme measure, other measures too could be explored.

"The Judges should, therefore, act cautiously and exercise their discretion wisely, to evade creation of a situation where initiating action becomes imperative," it said.

[Read Judgment]