A little over a fortnight from now, a judge of the Allahabad high court will complete a year of being paid to do nothing. The judge, Shri Narayan Shukla, whose impeachment was recommended to the Narendra Modi government last year after an in-house inquiry found substance in a charge of judicial impropriety against him, has been without work since 23 January 2018.

However, even as the penultimate session of the 16th Lok Sabha draws to a close — the Winter Session of Parliament is scheduled to end on 8 January — the Modi government is yet to show any inclination to put in motion the process to impeach the judge.

Existing procedure :-

• The Constitution of India, through Article 124 (4) empowers the parliament to initiate the process of removal of any supreme court judge. The article says the judge can only be removed from his office on the ground of proved misbehaviour or incapacity. Although, it did not define proved misbehaviour
• The first step towards impeachment is for the President and Prime Minister to be intimated of the concerns about the concerned judge. The inquiry committee’s report is then placed on record. This is not crucial to the impeachment process, but could play a role in it. The mandatory steps are as follows:

• There needs to be an impeachment motion in either of the Houses of Parliament. The motion can only be admitted by the Speaker in the Lok Sabha or Vice-President in Rajya Sabha if it has the required levels of support: 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha.
• If the motion is admitted, a three-member committee is set up to investigate the allegations. The committee is made up of a Supreme Court judge, the Chief Justice of any High Court, and a distinguished jurist (read judge/lawyer/scholar) nominated by the Speaker/Vice-President. When serious allegations have been raised in the past against judges,  this step was taken.
• However, the remaining steps have not been followed, because during the course of the investigation, the judges have shown the good sense to retire and get themselves out of the public eye.
• Once the committee prepares its report, this has to be submitted to the Speaker/Vice-President, who then also shares it with the other House. If the committee finds that judge is guilty of any misbehaviour, the next step gets triggered.
• Both Houses of Parliament then need to pass an ‘address to the President’ asking for judge to be removed. To succeed, this needs to be passed by a 2/3 majority of the MPs present in each house during the vote, and must also exceed the 50 percent mark in each House. This is the furthest things have ever got in the past, in Justice Ramaswami’s case in 1993, though the motion failed to pass in the Lok Sabha.
• If both addresses succeed, then the President can remove Judge from his position.

Why is it elaborate and cumbersome:-

• The process to impeach a judge of the higher judiciary is incredibly complex, but since this is the only meaningful way to hold these judges accountable.
• The High Courts and Supreme Court are the only institutions that can really take on the government, and hold them to account. It should therefore not be easy for these judges to be removed on the whims of the powers that be.
• However in the recent years there have been instances like the Justice Karnan’s case, Medical bribery case in Uttar Pradesh which raised questions on the impeachment process

Reforms needed:-

• Performance Commission can be instituted. Many U.S. States have constituted such commissions, which examine complaints about the conduct of judges. They are vested with powers to take consequential action. The censure of culpable judges must be governed by the Commission.
• An in-house finding may help hasten it in flagrant cases. That internal mechanisms work with due regard for institutional integrity is something that should be welcomed.
• Judicial accountability bill is necessary.
• There needs to be some thought about giving more teeth to the CJI when it comes to High Court judgesespecially perhaps by allowing him to temporarily suspend the judge themselves (rather than relying on the Chief Justice of the relevant High Court).
• To prevent it from becoming overreach by the CJI, it could be that such suspensions are restricted to situations where the inquiry committee finds that there has been criminal or otherwise gravely serious misconduct.
• There should also be some sort of similar proceedings to take action against a judge who retires before the impeachment process is completed. Impeachment doesn’t just deal with criminal misconduct, after all, so while this may remain a possibility after a strategic retirement, in many other cases, the impropriety will go unpunished.
• Try and introduce time limits for Parliament to deal with impeachment motions .