India is the largest democracy, and Judiciary is one among its four crucial pillars. The recent Justice Varma Cash Row ignited a detailed discussion on corruption in Courts. As per recent reports, the 3-Judge Committee submitted its report to the Chief Justice of India. Since the Committee reportedly indicted Justice Varma, which means formally accused or charged, the ball is in CJI’s Court. Now, either Justice Varma may himself resign, or the CJI may ask for voluntary retirement. The other path could be removal from the office. Now the question is, can a Judge be removed from High Court? Since being a Judge of the High Court is a Constitutional position, things are not that simple and straightforward. Let’s see what the laws in India hint at regarding the removal of a high Court Judge.
Can a Judge be removed from High Court?
Yes, a High Court Judge is not a mighty one who holds the position forever. They retire, they are transferred, they are elevated to the Supreme Court, and sometimes removed from the office as well. The Constitution of India in Part VI lays about the States, and Chapter V regarding the High Courts in the States. Article 217 particularly lays about the appointment and conditions of the office of a Judge of a High Court. As signified, the provision further lays about the removal of a High Court Judge from his office in clause (b) of the Article 217. This clarifies that the answer to the initial question – “Can a Judge be removed from High Court” is in affirmation.
Who can remove the High Court Judge?
Article 217(b) of the Constitution lays that “a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court”. The provision reflects that the President of India can remove a High Court Judge from his/her office. However, the said power is not to be arbitrarily exercised by the President on whims and fancies. To get a better understanding, it is important to have a look at Article 124(4).
Constitution of India Article 124(4)
“A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than twothirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”
While the provision expressly talks about the removal of a Supreme Court Judge, it squarely applies to a High Court Judge since specified in Article 127(b). If the question is can a judge be removed from High Court, the answer heads through an order passed by the President of India, that too supported by the 2/3rd majority of members of each House of the Parliament present and voting.
On what grounds can a Judge of the High Court be removed from office?
The removal of a High Court Judge can take place on two grounds laid in Article 124(4). The said grounds include proved “misbehavior” or “incapacity”. How the two terms are interpreted depends upon the realtime circumstances of each case. Article 124(5) further empowers the Parliament to regulate the procedure for investigation and proof of misbehavior and incapacity of a Judge.
Since Judicial Independence was seemingly compromised, if the allegations of currency notes found at Justice Yashwant Varma’s residence, the incident may fall under one of the grounds for removal of a Judge of the High Court.
Has a Judge been removed before?
As per a special report by the Supreme Court Observer, impeachment proceedings have been initiated earlier. Hence, if it happens in Justice Varma case, this will not be the first time when process will be initiated for removal of a Judge.
The first instance was of Supreme Court’s Justice V. Ramaswami in 1993, but the 2-3rd majority was not attained. Hence, impeachment was dropped midway. Another case of Calcutta High Court came into light when the Upper House initiated impeachment proceedings against Justice Soumitra Sen for misconduct. Following this, Justice Sen resigned from the office of the Calcutta High Court. The third instance happened in 2015 against Justice JB Pardiwala of the Gujarat High Court for allegedly objectionable remarks on reservation. Justice Pardiwala is at present a sitting Judge of the Supreme Court of India. In the same year, a motion was signed for removal of Justice SK Gangele of MP High Court. He was accused of sexual harassment by a former District and Sessions Judge, but inquiry reflected insufficient material to establish a charge. In 2017, Andhra Pradesh and Telangana HC’s Justice CV Nagarjuna was in radar for impeachment proceedings in the Rajya Sabha.
