Chief Justice of India Dipak Misra, who is due to retire on October 2, is the sixth judge to face impeachment for removal from office, though no judge has been impeached to date. The proceedings so far have been initiated against a Supreme Court judge and four High Court judges.
The ball is now in the Rajya Sabha Chairman’s court to accept or reject the impeachment notice against the CJI. If he accepts it, he has to set up a 3-member investigation committee, of which one will be a Supreme Court judge, one a High Court chief justice and one a distinguished jurist. They will probe and give its report for the House to proceed further.
The Constitution provides for removal of a Supreme Court or High Court judge only on ground of “proven misbehaviour” through an impeachment motion in both the Houses of Parliament under the Judges Inquiry Act, 1968. Justice V Ramaswami was the judge of the Supreme Court and the first judge against whom removal proceedings were initiated in independent India.
The other judges to face removal proceedings are Justice “Soumitra Sen” of the Calcutta High Court and Chief Justice Dinakaran of the Sikkim High Court who then resigned from his post. A scandal surfaced in the middle of year 1990 when several media outlets reported about Justice Ramaswami’s ostentatious expenditure on his official residence during his tenure as a Chief Justice of Punjab and Haryana. The Bharatiya Janata Party and Left parties submitted a notice of motion to the Indian Parliament seeking his removal from office.
Accepting the motion on 12 March 1991, Speaker Rabi Ray constituted a committee composed of Justice P B Sawant of the Supreme Court, Chief Justice P D Desai of the Bombay High Court and Justice O Chinnappa Reddy, retired judge of the Supreme Court, to investigate the affair. The committee found Ramaswami guilty on 11 out of 14 counts.
The removal motion that was placed in the House for debate and voting on 10 May 1993, however, failed on technical ground. Well known lawyer and Congress politician Kapil Sibal was his defence lawyer. Of 401 members present in the assembly that day, there were 196 votes for impeachment and no votes against and 205 abstentions by ruling Congress and its allies. The motion, which required not less than two third majority of the total number of members present in both houses of Parliament and an absolute majority of its total membership, thus failed to pass. The said decision was challenged before the Supreme Court and it upheld the decision.
Another case of Justice Soumitra Sen, then a judge of the Calcutta High Court, came up in 2009. He was removed on a Rajya Sabha motion for misappropriation of funds. This was the second case after that of Justice Ramaswami in the history of the country in which Parliament initiated proceedings for removal of a judge.
Justice Sen had allegedly misappropriated Rs 32 lakh as a court-appointed receiver in 1993 in a lawsuit in the Calcutta High Court between Steel Authority of India Limited (SAIL) and Shipping Corporation of India over supply of fire bricks by depositing money in his personal account. Sen retained the money even after being appointed as the High Court judge in 2003. It was in 2006 that after HC order, he returned the money.
A 3-judge committee set up by then CJI K G Balakrishnan in 2007 found him guilty of misappropriation of public funds. A year later, the CJI recommended his impeachment to the PM, after which a legal opinion obtained by the law ministry endorsed the judges’ committee report. In 2009, 58 MPs of the Rajya Sabha moved a motion for his impeachment. Probe panel was set up by Rajya Sabha chairman Hamid Ansari in February 2009. It was headed by SC judge Justice B Sudershan Reddy and had as its members Punjab and Haryana High Court Chief Justice Mukul Mudgal and noted Jurist Fali S Nariman. The Committee said the charges were duly proved.
The report of the three-member committee, placed in both the Houses of Parliament, said it was of the opinion that Justice Sen was ‘guilty of misbehaviour’ under Article 124(4) read with proviso (b) to Article 217(1) of the Constitution of India. Article 124(4), read with Article 217(1)(b) says a Supreme Court or High Court judge shall not be removed from his office except on grounds of “proved misbehaviour.”
The report said the oral and documentary evidence had established that two separate accounts were opened by Justice Sen as “receiver” in his own name and a total sum aggregating to Rs 33,22,800, being the sale proceeds of goods, were brought into the two accounts between 24 March 1993 and 5 May 1995. His indictment paved way for Parliament to impeach him.
Subash Bhattacharya, the lawyer of Justice Soumitra Sen, said that his client is innocent and he will prove his innocence. As per the Judges Inquiry Act, the motion was moved in the Rajya Sabha and debated upon. Sen was given an opportunity to defend himself through his counsel. On 18 August 2011, Rajya Sabha passed the impeachment motion by overwhelming majority of 189 votes in favour and 17 against.
He, however, scuttled his impeachment by resigning on September 1, 2011, ahead of the Lok Sabha taking up the motion against him on September 5 and 6, 2011. In his resignation letter he said: “Since the Rajya Sabha has decided in its wisdom that I should not continue as a judge, I have decided not to go to the Lok Sabha, and put in my papers instead.” The Lok Sabha dropped the impeachment proceedings because his resignation made the motion infructuous.
Sikkim High Court Chief Justice P D Dinakaran, against whom the Rajya Sabha Chairman had set up a judicial panel to look into allegations of corruption, resigned in July 2011, before impeachment proceedings could be initiated against him. Corruption, land-grab and abuse of judicial office were among the 16 charges framed against him.
In December 2015, a group of 58 Rajya Sabha MPs moved an impeachment notice against Justice J B Pardiwala of the Gujarat High Court for his “objectionable remarks on the issue of reservation” to Scheduled Castes and Scheduled Tribes in a case against Patidar leader Hardik Patel.
Hours after the impeachment notice was submitted to then Chairman Hamid Ansari to constitute a 3-member committee, the judge removed the objected sentence: “If I am asked by anyone to name two things which have destroyed this country or rather have not allowed the country to progress in the right direction, then the same is, (i) Reservation and (ii) Corruption. It is very shameful for any citizen of this country to ask for reservation after 65 years of Independence. When our Constitution was framed, it was understood that reservation would remain for a period of ten years, but unfortunately, it has continued even after 65 years of Independence.”
Attempts were made twice in December 2016 and again in May 2017 for initiating impeachment proceedings against Justice C V Nagarjuna Reddy of the High Court for Andhra Pradesh and Telangana. It failed both times as 19 MP signatories withdrew in December 2016 and nine of them 54 withdrew their signatures in May 2017.