7/22/2019 Explainer: Mechanisms to investigate charges against a Supreme Court judge

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> Explainer: Mechanisms to investigate charges against a Supreme Court judge

Explainer: Mechanisms to investigate charges against a Supreme Court judge [1]

Submitted by Roshni Sinha on Thu, 04/25/2019 - 17:55

Explainer: Mechanisms to investigate charges against a Supreme Court judge

This week, an in-house inquiry committee was constituted [2] to consider a complaint against the current Chief Justice of India. Over the years, three mechanisms
have evolved to investigate cases of misconduct, including cases of sexual harassment, misbehaviour or incapacity against judges. In this blog, we summarise the
procedure for investigating such charges against judges of the Supreme Court.

In-house procedure [3] (1999): The Supreme Court has an in-house process to deal with allegations against a judge relating to the discharge of his judicial
function, or with regard to his conduct or behaviour outside court.
Sexual harassment guidelines [4]: In 2013, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013. Subsequently, the Supreme Court framed [4] regulations for protection of women against sexual harassment in the Supreme Court. Under the
regulations, the CJI is required to constitute a Gender Sensitisation and Internal Complaints Committee (GSICC). The GSICC will include 7-13 members
including: (i) one or two judges of the Supreme Court, and (ii) up to two outside members (having experience in social justice, women empowerment, gender
justice, among others) to be nominated by the CJI. The Regulations require the majority of the members of GSICC to be women. As of 2018, the GSICC has
received [5] 13 complaints, out of which 10 have been disposed of.
Removal for proven misbehaviour or incapacity: Charges of misconduct may also be investigated in the context of proceedings for removal of a judge.
Article 124(4) of the Constitution of India provides that a judge can be removed only by Parliament on the basis of a motion in either the Lok Sabha or Rajya
Sabha. The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968. Till date, no judge of the higher judiciary has been impeached
under this process.

Table 1: Process for investigation of charges against a Supreme Court judge

  In-house Procedure of Supreme Court 2013 SC Sexual Harassment Regulation Removal Proceedings

Signed notice by at least 100

members of the Lok Sabha, or 50
Who may file a Complaint of misconduct may be filed by Written complaint of sexual harassment by a
members of the Rajya Sabha on
complaint any person. woman.
charges of misbehaviour or incapacity
by a judge.

Persons to whom Presiding Officer of the relevant

CJI or President of India GSICC
complaint must be filed House of Parliament

The CJI is required to determine whether

the complaint is either frivolous or serious. If
the complaint is frivolous or relates to a
pending case, no further action will be
taken. If the GSICC is satisfied that the complaint is If the notice is in order, the Presiding
If the CJI finds that the complaint involves genuine, it will constitute a three-member Officer will constitute a three-member
Preliminary Inquiry
serious misconduct or impropriety, he will Internal Sub-Committee to conduct an inquiry committee to investigate the
seek the response of the concerned Judge. into the complaint. complaint.
Based on the response and supporting
materials, if the CJI finds that the complaint
needs a deeper probe, he will constitute an
inquiry committee.

Composition of Inquiry The Committee will comprise three judges The Committee will comprise members of the The committee will comprise a
Committee including a Judge of the Supreme Court GSICC or persons nominated by the GSICC, Supreme Court judge, Chief Justice of
and two Chief Justices of other High Courts. with majority members being a woman and a High Court, and a distinguished
an outside member. jurist.

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7/22/2019 Explainer: Mechanisms to investigate charges against a Supreme Court judge

To be completed within 90 days of the

Time limit for submission constitution of the Internal Sub-Committee, To be submitted to the presiding
No specific time limit provided.
of inquiry report and forwarded to the GSICC within 10 days of officer within 90 days.
completion.

The Committee may report to the CJI that:
1. there is no substance in the allegation made, or,
Findings of the 2. there is substance in the allegations but the
Committee misconduct is not of such serious nature as to
warrant removal, or,
3. the misconduct is serious enough to initiate
removal proceedings against the judge.
If the committee concludes that the allegation
has been proved, it will submit its report to the
After concluding its investigation, the
GSICC to pass appropriate orders within 45
Committee will submit its report to the
days.
presiding officer, who will lay the
If more than two thirds of the GSICC
report before the relevant House.
members differ from the conclusion of the
Committee, it will, after hearing the
complainant and the accused, record its
reasons for differing and pass orders.

The GSICC has the power to: (i) to pass an If the report records a finding of
If the finding is under category (2) above,
order of admonition (reprimand), which may misbehaviour or incapacity, the motion
the CJI may call and advise the Judge
also be published in the court precinct, or (ii) for removal will be taken up for
accordingly and direct that the report be
pass an order to prohibit the accused from consideration and debated.
placed on record.
harassing or communicating with the The motion is required to be adopted
If the finding is under category (3) above,
complainant, or (iii) pass any other order to by each House by a majority of the
the CJI may ask the judge to resign or seek
Action taken upon end the sexual harassment faced by the total membership of that House and a
voluntary retirement. If the judge refuses to
submission of report complainant. majority of at least two-thirds of the
resign, the CJI may decide to not allocate
GSICC may also recommend to the CJI to members of that House present and
any judicial work to the judge concerned.
pass orders against the accused, including: (i) voting.
Further, the CJI may inform the President
prohibiting entry of the accused into the Once the motion is adopted in both
of India and the Prime Minister of his
Supreme Court for up to a year, or (ii) filing a Houses, it is sent to the President,
reasons for the action taken and forward a
criminal complaint before the concerned who will issue an order for the removal
copy of the inquiry report to them.
disciplinary authority governing the accused. of the judge.

Any aggrieved person may make a

representation to the CJI to set aside/modify
Process for Appeals No specific provision. the orders passed by the GSICC. The CJI No specific provision.
also has the power to issue any other orders
in order to secure justice to the victim.

Sources: Report of the Committee on In-House Procedure, December 1999, Supreme Court of India; Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India
(Prevention, Prohibition and Redressal) Regulations, 2013; Article 124(4), Constitution of India; Judges Inquiry Act, 1968 read with the Judges Inquiry Rules, 1969; PRS.

Constitution [6]
Image:

judiciary [7],
supreme court [8],
judges [9],
parliament [10],
misconduct of judges [11],
mechanism for inquiry [12],
Constitution [13]

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