In this blog, I will try to explore the process and considerations involved in removing a State Election Commissioner, a vital role responsible for overseeing elections at the state level. Valid grounds for removal include misconduct, bias, or incapacity that affects their ability to perform duties impartially. The removal process begins with a complaint, followed by an independent inquiry or investigation. After analyzing the findings, a decision is made by the relevant authority, which can be subject to judicial review. This process ensures the integrity of electoral processes, upholds democracy, and reinforces public trust in the electoral system.
Article 243K(2) in The Constitution Of India:
(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment
The steps for the removal of a Supreme Court or High Court judge are as follows:
- A motion for removal must be moved in either House of Parliament. The motion must be signed by at least 100 members of Lok Sabha or 50 members of Rajya Sabha.
- The motion must be admitted by the Speaker or Chairman of the respective House. If the motion is not admitted, the process ends there.
- If the motion is admitted, a three-member committee is appointed to investigate the allegations against the judge. The committee is headed by a sitting judge of the Supreme Court and the other two members are either retired judges of the Supreme Court or High Courts.
- The committee submits its report to the House that admitted the motion. The report is confidential and is not released to the public.
- If the report finds that the judge is guilty of misbehaviour or incapacity, the House that admitted the motion may pass a resolution by a two-thirds majority of the members present and voting, requesting the President to remove the judge from office.
- The President then decides whether to remove the judge from office. The President’s decision is final and cannot be challenged in court.
The removal of a Supreme Court or High Court judge is a serious matter and is only done in cases where there is clear evidence of misbehaviour or incapacity. The process for removal is designed to ensure that the independence of the judiciary is protected.
Legal provisions for removal of Judges:
- Article 124(2)(b) of the Constitution states that a Supreme Court or High Court judge may be removed from office in the manner specified in clause (4) of the same article.
- Article 124(4) of the Constitution states that a Supreme Court judge can only be removed from office by an order of the President, following a motion passed by both Houses of Parliament with a two-thirds majority of the members present and voting. The motion must be based on the grounds of proved misbehaviour or incapacity.
- Article 124(5) of the Constitution states that Parliament may enact laws to regulate the procedure for presenting an address to the President and for investigating and proving the misbehaviour or incapacity of a judge under clause (4).
- Article 217(1)(b) of the Constitution states that a High Court judge may be removed from office by the President in the same manner as a Supreme Court judge is removed from office.
- The Judges (Inquiry) Act, 1968 provides for the procedure for investigating allegations of misbehaviour or incapacity against a judge. It also sets out the powers of the Inquiry Committee and the manner in which its report is to be addressed to the concerned House of Parliament.
- The Judges Inquiry Rules, 1969 provide further details on the procedure for removing a judge, including the composition of the Inquiry Committee and the evidence that can be considered by the Committee.
Landmark cases of Removal of Judges in India
No Judge till date has been removed in India, there have been attempts to remove Judges in India.
In the first attempt to remove a judge in India, Supreme Court Judge V. Ramaswami faced allegations of financial irregularities in 1991. An unbiased three-member Inquiry Committee was set up to investigate the judge as per the Judges (Inquiry) Act, 1968. However, the Lok Sabha was dissolved before the committee could submit its report.
Chief Justice P.D. Dhinakaran, formerly of the Madras High Court and later the Sikkim High Court, faced an investigation by the Judicial Committee. He was accused of land grab and abuse of judicial office. However, he resigned in 2011 before any action could be taken against him.
Justice Soumitra Sen of the Calcutta High Court was charged with misappropriating 33.2 lakhs under his custody. He was removed by the Rajya Sabha but chose to resign in 2011 to retain post-retirement privileges.
Justice J.B. Paridawala of the Gujarat High Court made objectionable remarks on reservation, leading to an impeachment notice by the Parliamentarians. However, he retracted his remarks, and the impeachment process was discontinued.
Justice C.V. Nagarjuna Reddy of the Andhra Pradesh High Court faced two unsuccessful impeachment attempts by the Rajya Sabha. He was accused of victimizing a Dalit junior Civil Court Judge, interfering in judicial processes, and making caste slurs.