Paper: GS – II, Subject: Polity, Topic: Judiciary and Tribunal, Issue: Judicial Resignation, Judicial Removal Procedure and the Limits of Parliamentary Removal.
Context:
The proposed tabling of an inquiry report concerning former High Court judge Justice Yashwant Varma has created an unusual constitutional situation. Since the judge has already resigned, the central question is whether Parliament can continue proceedings designed exclusively to remove a serving judge.
Key Takeaways:
Explanation:
Procedure for Removal of a Judge:
- A removal motion must be signed by at least 100 Lok Sabha members or 50 Rajya Sabha members.
- The Speaker or Chairman may admit or reject the motion. If admitted, a three-member committee is constituted, comprising:
- A Supreme Court judge,
- A Chief Justice of a High Court, and
- A distinguished jurist.
- The committee investigates the allegations and determines whether misbehaviour or incapacity has been proved.
- If the charges are proved, each House must separately adopt the motion by:
- A majority of its total membership; and
- At least two-thirds of members present and voting.
- The President may thereafter issue the removal order. Although popularly called “impeachment”, the Constitution uses the expression removal of a judge.
Constitutional Problem Created by Resignation:
- A judge can resign by writing to the President. Resignation is a unilateral constitutional act and becomes effective according to its terms.
- Removal proceedings are intended to remove a person who presently occupies judicial office. Once resignation takes effect, the office becomes vacant and there is arguably no judge left for Parliament to remove.
- In Union of India v. Shri Gopal Chandra Misra (1978), the Supreme Court recognised resignation as a unilateral constitutional act that does not require acceptance unless the governing provision specifies otherwise.
- Continuing a removal vote against a former judge may therefore become constitutionally purposeless and could create a precedent for retrospective parliamentary scrutiny of retired or resigned judges.
- Conversely, tabling the inquiry report can preserve the institutional record, promote transparency and prevent resignation from being used to erase the findings of a completed investigation.
- Parliament may acknowledge or discuss the report only within constitutional limits. It cannot convert removal proceedings into an independent mechanism for punishment, censure or disqualification unless supported by law.
Accountability Beyond Removal:
- Resignation does not extinguish possible criminal, civil or tax liability. If independently admissible evidence reveals an offence, investigation and trial may proceed under ordinary law.
- Pension and retirement benefits are governed by separate statutory provisions and cannot automatically be withdrawn through an unsuccessful or infructuous removal motion.
- Thus, judicial independence does not mean immunity, it requires accountability through the legally appropriate forum.
Conclusion:
Parliament may place the inquiry report on record to uphold transparency, but a removal vote after an effective resignation lacks a clear constitutional purpose. The episode demonstrates the need for a legal framework ensuring that resignation neither defeats accountability nor allows Parliament to exercise an undefined punitive jurisdiction over former judges.
Source: (The Hindu)
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