Transparent Removal Process for Judges: Independence vs Accountability

Transparent Removal Process for Judges: Independence vs Accountability

Introduction

The judiciary is a pillar of democracy, entrusted with the duty of protecting the Constitution, upholding the rule of law, and ensuring justice. For a democracy to function effectively, the independence of the judiciary must be protected. However, judges must also be accountable for their conduct. The process of removing a judge from office is at the heart of this delicate balance. India’s existing mechanism for judicial removal is complex, opaque, and rarely successful, raising serious questions about transparency and accountability without compromising independence.

Constitutional Provisions for Removal of Judges

The procedure for removal of judges of the Supreme Court and High Courts is defined under:

• Article 124(4) of the Constitution: A judge of the Supreme Court shall not be removed except by an order of the President after an address by Parliament supported by a special majority in both Houses, on grounds of proven misbehaviour or incapacity.
• The same process applies to High Court judges under Article 217 read with Article 124(4).

This process was detailed in the Judges (Inquiry) Act, 1968, which allows for:

• Setting up of an inquiry committee,
• Investigation of charges, and
• Motion in Parliament.

Need for a Transparent Removal Mechanism

1. Maintaining Public Confidence

Judges hold immense power, and unchecked power can lead to abuse. A transparent process ensures public trust and credibility of the institution.

2. Deterring Misconduct

If the removal process is uncertain or opaque, it may fail to deter unethical behaviour or corruption among judges.

3. Prevention of Political Misuse

Transparency prevents the misuse of the removal process by the legislature or executive to target judges for political reasons.

4. Global Standards

Many advanced democracies have clear and independent mechanisms to discipline or remove judges, ensuring both accountability and fairness.

Challenges in the Current Removal Process

1. High Threshold for Impeachment

• Removal requires a two-thirds majority in both Houses of Parliament, which is extremely difficult to achieve politically.
• As a result, no judge in independent India has been successfully removed, even in serious cases.

2. Lack of Timely Action

• The process is lengthy, slow, and politicized.
• Example: The case of Justice Soumitra Sen (Calcutta HC) and Justice P.D. Dinakaran (Sikkim HC) saw serious delays and finally ended in resignations, not removal.

3. Opaque Investigations

• The inquiry committee’s proceedings are confidential, and the public is unaware of how decisions are made.
• There is no clear code of conduct or independent disciplinary body.

4. Chilling Effect on Independence

• A flawed process can be used to threaten honest judges who give bold or unpopular judgments.

Judicial Independence vs Accountability: The Delicate Balance

Judicial Independence

• Judges must be free from political and executive interference.
• Without independence, they cannot deliver impartial decisions or uphold citizens’ rights.

Judicial Accountability

• However, absolute immunity may lead to corruption, inefficiency, or abuse of power.
• Judges are public servants and must be answerable for their actions.

The key is to strike a constitutional balance — not making removal too easy (which threatens independence), nor too difficult (which protects misconduct).

Suggested Reforms for Transparent and Balanced Removal

1. Independent Oversight Body

• Establish a National Judicial Oversight Commission, as once proposed in the Judicial Standards and Accountability Bill.
• It should have retired judges, eminent citizens, and legal experts.

2. Code of Conduct for Judges

• A publicly available and enforceable Judicial Conduct Code must be framed to define what constitutes “misbehaviour”.

3. Simplified Disciplinary Mechanism for Minor Offences

• Not all misconduct requires removal. Create mechanisms for censure, warning, or temporary suspension for minor violations.

4. Make Inquiry Process Transparent

• While maintaining confidentiality during inquiry, the report and reasoning of the committee should be made public after completion.

5. Parliamentary Role with Safeguards

• Retain parliamentary oversight for removal, but ensure it’s based on committee findings, not political pressure.

International Practices Worth Considering

• United Kingdom: Judges can be removed by the monarch on recommendation from Parliament, but a Judicial Conduct Investigations Office investigates complaints.
• United States: Federal judges can be impeached by Congress, but many states have Judicial Conduct Commissions for regular oversight.
• Canada: Judges are subject to oversight by a Judicial Council, and removal is possible through a transparent process involving Parliament.

India can learn from these examples and design an independent, transparent, and layered system.

Conclusion

An independent judiciary is the soul of a democratic Constitution, but independence must not become unaccountability. The current process of judge removal in India is ineffective, secretive, and impractical. For a judiciary that commands public respect, there must be a fair, transparent, and workable mechanism to discipline or remove judges when necessary — without threatening judicial freedom. Balancing independence with accountability is not just a legal necessity, but a democratic imperative for India’s future.