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Published On:Monday, June 10, 2013
Posted by Sri Lanka Guardian

Impeachment of CJ and other Judges in India & the adopted Procedure

| by Kingsley Karunaratne

( June 10, 2013, Colombo, Sri Lanka Guardian) During the impeachment of former Chief Justice, Dr. Shirani Bandaranayaka last year, it was discussed in many forums that the procedure adopted in Sri Lanka was not a transparent one in any way.

The government carried forward the debate of the impeachment on 06th January despite the objections made by the opposition parties and passed the impeachment motion to remove the Chief Justice.

The impeachment procedure was severely criticized by the local and international legal scholars, politicians, state leaders, religious leaders, intellectuals, civil society leaders and citizens alike.

Various opinions were expressed regarding this at that time and they are expressed even now. Some said the process of impeachment was totally lacking in transparency while the government commented that it was done according to the constitutional provisions. Some critics said that there were serious drawbacks, ie. the absence of a definite procedure to be followed by the Committee, the failure to produce a list of witnesses and documents relevant to the charges, the denial of an adequate time frame to respond to the charges and the absence of a clear standard of determining the burden of proof .

The critics also in the opinion that there was a serious breach in separation of powers of the three main components of the state i.e., Executive, Legislature and Judiciary, by this impeachment.

Anyway what is going to be discussed here is the way how an impeachment of Supreme Court judge /chief Justice of Supreme Court or High Court judge, done in our, Neighbor state, India.

The current law in this regard in India is the Judicial Standards and Accountability Bill, 2012 which was passed by Lok Sabha on 29th of March 2012.

My tributes go to lawyer friends in Kerala & New Delhi for giving me this valuable piece of information about the Bill. Only the much important sections of the bill are under mentioned in this article.

Making of Complaint:

7. When any person is making an allegation of misbehavior or incapacity in respect of a judge may file a complaint in this regard to the Oversight Committee.

8. The complaint under section 7 shall-

(a) be in such form and field in such manner as may be prescribed;

(b) Set forth particulars of the misbehavior or incapacity which is the subject matter of allegation?

( c ) be verified at the foot of the complaint by the complainant, and shall specify, by reference to the numbered paragraphs of the complaint, what he verifies of his own knowledge and what he verifies upon information and shall refer to the source of the information.

9. Save as otherwise provided under this act, the Oversight Committee shall refer all such complaints to the appropriate Scrutiny Panel constituted under Chapter V for scrutiny.

Scrutiny Panel:

10. There shall be a constituted panel to be called “Complaints Scrutiny Panel” in the Supreme Court and in every High Court to scrutinize the complaints against a Judge received under this act.

11. (I) the Scrutiny Panel in the Supreme Court shall consist of a former Chief Justice of India and two Judges of the Supreme Court to be nominated by the Chief Justice of India.

(2)The Scrutiny Panel in every High Court shall consist of a former Chief Justice of that High Court and two Judges of that High Court to be nominated by the Chief Justice of that High Court.

12. If the Scrutiny Panel, after making scrutiny of the complaint finds appropriate and satisfied: ,

(a) then they have to submit a report on its findings along with the sufficient grounds for proceeding against the Judge with the recorded reasons to the Oversight Committee for making inquiry against the judge in accordance with the provisions of this act.

(b) If the Scrutiny Panel finds that the complaint does not have sufficient grounds for inquiry into the complaint, then the Scrutiny Panel after recording reasons, have to submit a report on its findings to the Oversight Committee for not proceeding with the complaint and treating the matter as closed.

(2) The Scrutiny of complaints under this section by the Scrutiny Panel shall be held in camera.

(3)The Scrutiny Panel shall submit its report under clause (a) or clause (b) of sub-section (1), to the Oversight Committee in this behalf within a maximum of three months from the date of receipt of the complaint from the Oversight Committee.

13. Save as otherwise provided in this Act, the Scrutiny Panel shall have power to regulate its own procedure in scrutinizing the complaints referred to it for scrutiny under section 9.

14. The Scrutiny Panel shall before scrutinizing the complaints forwarded to it for scrutiny under section 9, have all the powers of a civil court trying a suite under the Code of Civil procedure, 1908 and in particular, in respect of the following matters, namely:-

Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
Requiring the discovery and production of any document;
Receiving evidence in affidavits;
Requisitioning any public record or copy thereof from any court or office;
Issuing commissions for the examination of witnesses or other documents; and
Any other matter which may be prescribed.

(16) If the Scrutiny Panel is of the opinion of that a complaint was filed frivolously or vexatiously or only with a view to scandalize or intimidate a Judge, it may refer the case to the Oversight Committee for further action.

National Justice Oversight Committee:

17. With effect from such date as the Central Government may, by notification, appoint, there shall be established a National Judicial Oversight Committee (N.J.O. C.).

18. In case of a Supreme Court judge or High Court Judge, the composition of and tenure of the investigation committee shall be such as may be decided by the National Justice Oversight committee. This N.J.O.C. is comprising of a retired C. J. of India appointed by the President, after ascertaining the views of current C. J. in India (Chairperson), a judge of the Supreme Court nominated by the C.J. of India (member), C.J. of a High Court nominated by C.J. India (member), Attorney General for India – ex-officio member, an eminent person nominated by the President-India (member).

19. The Oversight Committee shall within 3 months of the receipt of a complaint, relating to misbehavior of

a) a judge of Supreme Court or Chief Justice of a High Court, refer the complaint to Scrutiny of the Supreme Court to scrutinize and report.

b) a judge of a High Court, refer the complaint to scrutiny of the High court in which such judge is acting as such, to scrutinize and report.

21. A complaint against Chief Justice of India shall not be referred to the Scrutiny Panel for scrutiny but shall be scrutinized by the Oversight Committee.

22.(i) The Oversight Committee, shall for the purpose of inquiry of misbehavior by a Judge, constitute an investigation committee to investigate into the complaint in respect of which Scrutiny Panel has recommended in its report under clause (a) of sub-section (1) of section 12 for making inquiry against the Judge in accordance with the provision of this act.

(2)The composition and tenure of the investigation committee shall be such as may be decided by the Oversight Committee.

23. As in the case of Scrutiny Panel of Supreme Court and High Court, the Oversight Committee also is having the authority of all powers of a civil court trying a suite under the Code of Civil Procedure, 1908 with all the powers & authority to

Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
Requiring the discovery and production of any document;
Receiving evidence in affidavits;
Requisitioning any public record or copy thereof from any court or office;
Issuing commissions for the examination of witnesses or other documents; and
Any other matter which may be prescribed.

Inquiry Procedure of the Investigation Committee.

26. If a Judge, to whom notice is issued by the investigation committee, referred to in section 22, refuses to appear before it or does not cooperate with it in conducting investigation, then, the investigation committee may proceed ex parte.

27. The investigation committee may cause investigation into any act or conduct of any person, other than the Judge concerned, in so far as it considers necessary to do so for the purpose of its investigation into any allegations made against a Judge and shall give such person a reasonable opportunity of being heard and to produce evidence in his defense.

28. The investigation committee, after completion of the inquiry in respect of a complaint, shall submit its findings to the Oversight Committee.

29. (1) The Investigation Committee shall frame definite charges against the Judge on the basis of which the inquiry is proposed to be held.

(2) Every such inquiry shall be conducted in camera by the investigation committee.

(3)Charges framed under sub-section(1) together with the statement of grounds on which each such charge is based shall be communicated to the Judge and shall be given a reasonable opportunity of presenting a written statement of defense within such time as may be specified by the investigation committee.

(4)The investigation committee shall hold every such inquiry as expeditiously as possible and in any case complete the inquiry within a period of six months from the date of receipt of the complaint:

Provided that the Oversight Committee for reasons to be recorded in writing may extend the period for completion by a further period of six months.

30. Save as otherwise provided, the investigation committee shall have power to regulate its own procedure in making the inquiry and shall give reasonable opportunity to the Judge of cross examining witnesses, adducing evidence and of being heard in his defense.

32.The Oversight Committee shall for the purpose of performing its functions under this act, appoint a Secretary and such other officers and employees processing such qualifications, as the President may determine, from time to time, in consultation with the Oversight Committee.

34.(1) If the Oversight Committee on receipt of the report from the investigation committee is satisfied that (a) no charges have been proved it shall dismiss the complaint and matter be closed and no further action taken against the Judge and the complainant shall be informed accordingly.

(b) All or any of the charges have been proved but the Oversight Committee is of the opinion that the charges proved do not warrant removal of the Judge, it may, by order, issue advisories or warnings.

(2) Without prejudice to the provisions contained in sub-section (1), if the Oversight Committee, on receipt of the report from the investigation committee is satisfied that there has been a prima facie commission of any offence under any law for the time being in force by a Judge, it may recommend to the Central Government for prosecution of the Judge in accordance with the law for the time being in force.

(3) In case where an inquiry or investigation against the Judge has been initiated and such Judge has demitted office during such inquiry or investigation, such inquiry or investigation may be continued if the Oversight Committee is of the opinion that the misbehavior is serious in nature and requires to be inquired into or investigated and the Oversight Committee may after conclusion of inquiry forward its findings to the Central Government to take further action in the matter under relevant law for the time being in force.

35. If the Oversight Committee is satisfied that all or any of the charges of misbehavior or incapacity of a Judge have been proved and that they are of serious nature warranting his removal, it shall request the Judge to voluntarily resign and if he fails to do so, then advise the President to proceed for the removal of the Judge and the President shall refer the matter to Parliament.

36. If the Scrutiny Panel refers a case to the Oversight Committee under section 16, the Oversight Committee shall consider the matter further and if it concurs with the conclusion of the scrutiny Panel, it may authorize filing of a criminal complaint against the original complainant before a competent court.

37. All proceedings under this act shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, and the Oversight Committee shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

40. The Oversight Committee or the Scrutiny Panel or investigation committee may, at the request of a complainant, direct that the complainant be accorded such protection, as it deems appropriate, including keeping his identity confidential, from everybody and also the Judge against whom the complaint is made.

41. After the commencement of scrutiny of complaints under this act, no action for contempt of court shall lie or shall be proceeded with in respect of the allegations, which are the subject matter of the investigation or inquiry.

42. Any scrutiny, investigation or inquiry pending before the Scrutiny Panel or investigation committee or Oversight Committee shall not affect the criminal liability in respect of such allegations which are the subject matter of the investigation or inquiry.

43.Not withstanding anything contained in the Right to Information Act, 2005 or any other law for the time being in force, all papers, documents, and records of proceedings related to a complaint, preliminary investigation and inquiry shall be confidential and shall not be disclosed by any person in any proceeding except as directed by the Oversight Committee; provided that the findings of the investigation committee and the orders passed by the Oversight Committee under clause (b) sub-section (1) of section 34 shall be made public.

44. No suit, prosecution or other legal proceeding shall lie against the Chairperson or any member of the Oversight Committee, Scrutiny Panel, investigation Committee or against any officer or employee, agency or person engaged by such committees or panel for the purpose of conducting of scrutiny or investigation or inquiry in respect of anything which is in good faith done or intended to be done under this act or the rules made thereunder.

45. The President, on receipt of the advice under section 35, shall cause the findings of the Oversight Committee along with the accompanying materials to be laid before both Houses of Parliament.

46. On laying of the advice of the Oversight Committee along with the accompanying material, the Central Government may move a motion in either House of Parliament for taking up the said advice for consideration by the House. 47. (1) notwithstanding anything contained in section 45 or section 46, if notice is given of a motion for presenting a address to the President praying for the removal of a Judge signed,-

(a) in the case of a notice given in House of People, by not less than one hundred members of that House;

(b) In the case of a notice given in the Council of States, by not less than fifty members of that Council,

Then the Speaker or, as the case may be, the chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same.

(2) If the motion referred to in sub section (I) is admitted, the Speaker or, the case may be, the Chairman shall keep the motion pending and the matter shall be referred to the Oversight Committee for constitution of an investigation Committee under section 22.

(3) The Oversight Committee after receipt of reference under sub- section(2), constitute an investigation committee under section 22 and the investigating committee shall conduct an inquiry in accordance with the provisions contained under Chapter VI and submit its report to the Oversight Committee for being submitted to th Speaker or Chairman, as the case may be, for consideration.

(4) Where it is alleged that a Judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the investigation committee may arrange for the medical examination of the Judge by such Medical Board as may be appointed for the purpose by the Speaker or, as the case may be, the Chairman.

(5) The Medical Board shall undertake such medical examination of the Judge as may be considered necessary and submit a report to the investigating Committee stating therein whether the incapacity is such as to render the Judge unfit to continue in office.

(6)If the Judge refuses to undergo medical examination considered necessary by the Medical Board, the Board shall submit a report to the investigation committee stating therein the examination which the Judge has refused to undergo, the investigation committee may, on receipt of such report, presume that the Judge suffers from such physical or mental incapacity as is alleged in the motion referred to in sub-section (I).

48.(1) If the report of the investigation committee contains a finding that the Judge is not guilty of any misbehavior or does not suffer from any incapacity, then no further steps shall be taken either House of Parliament shall not be proceeded with.

(2) If the report of the investigation committee contains a finding that the Judge is guilty of any misbehavior or suffers from any incapacity, then the motion referred to in section 46 shall together with the report of the investigation committee, be taken up for consideration by the House of Parliament in which it is pending.

(3)If the motion is adopted by each House of Parliament in accordance with the provisions of clause

(4) of article 124 or, as the case may be, in accordance with that clause read with article 218 of the Constitution, then the misbehavior or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted.

So by careful studying this law, one can say that the Indian system of Impeachment of Judges is a very democratic and transparent method.

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