The Supreme Court of India has witnessed two unprecedented events in quick succession. Both relate to the contempt of Court and both concern Judges. In the first, a notice of contempt was issued to a former Judge of the Supreme Court for criticising a judgment of the Court. While issuing notice, the Court noted that in his criticism, Justice Markandey Katju (Retd.) had personally attacked the Judges. Justice Katju was asked to appear before Court. He eventually tendered an unconditional apology. Consequently, contempt proceedings were dropped.

In the second, the Chief Justice of India took Suo-Motu action against Justice C.S. Karnan and a seven Judge Constitution Bench issued notice of contempt against the Judge. This is the first time that Suo-Motu contempt proceedings have been initiated against a sitting Judge. The Judge has been asked to present himself in Court, to explain his conduct, while he’s still holding his constitutional office.

The above instances make it clear that even My Lords are not above the rule of law! In fact, Justice Karnan’s allegations and personal attacks on fellow Judges have rightly been termed “scurrilous” since they have crossed all limits of judicial propriety. British jurist R. Jackson rightly said, “misbehavior by a judge whether it takes place on the Bench or off the Bench, undermines public confidence in the administration of justice and also damages public respect for the law of the land; if nothing is seen to be done about it, the damage goes unrepaired.” Justice Karnan’s actions, like staying his order of transfer, tendering a subsequent unconditional apology to again start making allegations against his superior Judges has brought to fore the need to re-asses the process for removal of Judges.

Constitutionally, a Judge may only be removed through the process of impeachment. Article 124(4), relates to removal of Supreme Court Judges and Articles 217(1)(b) and 218 apply to High Court Judges. Notably, the only grounds for removal are “proved misbehavior” or “incapacity.” While misbehavior is not defined, willful abuse of judicial office, willful misconduct, corruption, and moral turpitude will qualify as misbehaviour. These Articles are supplemented by the Judges (Inquiry) Act which regulates the procedure for investigation.

Broadly, impeachment is initiated by a notice of motion addressed to the President of India praying for removal of a Judge. This motion must be signed by atleast 100 members of Lok Sabha or 50 members of Rajya Sabha and subsequently delivered to the Speaker. Upon receipt, the Speaker has the discretion to take the motion under consideration, for consultation with those she chooses or summarily refuse it. Upon acceptance, an investigation is conducted by a committee of two Supreme Court Judges and one imminent jurist. If the committee’s findings are negative, impeachment fails. If however, the Judge is declared guilty of misbehavior or incapacity, then the committee shall frame charges and offer the Judge the opportunity of a reasonable defence. Post investigation, the committee shall submit its report to the Speaker or Chairman of the house who shall share it with Parliament. Interestingly, the findings of the committee are only recommendatory which the Parliament may eventually reject.

Subsequently, the impeachment motion is taken up for consideration in the house where it is pending. To pass the motion, it is necessary for two-third majority of the total membership of that house and by a majority of not less than two-third of the members of that house present and voting to vote in its favour. The Parliament’s resolution shall then be presented to the President in the same session and the Judge will be removed after the President gives his order for removal.

Where the impeachment relates to a High Court Judge, the Chief Justice of that Court can initiate an independent enquiry and may also seek assistance of the local bar association to verify the imputations made. Upon conclusion of such enquiry, the local Chief Justice may refer her findings to the Chief Justice of India who after being satisfied with the correctness of the findings may tender such advice as the circumstances dictate.

Till date, no Judge in India has been impeached. The closest it came was in 1991 when an impeachment motion against Supreme Court Justice V. Ramaswami went through the above process, but eventually failed when certain MP’s abstained from the final vote in Parliament. During the pendency of the impeachment motion, Justice Ramaswami made written allegations against sitting Judges who were part of the investigating committee. Contempt proceedings were brought against him, but the contempt failed because the Supreme Court held that the Constitutional Scheme did not provide for a process parallel to Parliament. At the time, a five Judge Constitution Bench also noted that there existed no Constitutional Scheme by which a Judge could be restrained from discharging his judicial functions.

The circumstances in Justice Karnan’s case are easily distinguishable from the facts that were before the five Judge Constitution Bench in 1991. At present, no motion against Justice Karnan is pending in Parliament, hence if the Supreme Court were to proceed with contempt it would not amount to a parallel proceeding. Also, yesterday’s directions restraining Justice Karnan from handling any judicial and administrative functions have been pronounced by a seven Judge bench, which is within its powers to take a view different from what was taken by the five Judge bench. Nothing prevents the Supreme Court from reconsidering its previous decision, if the circumstances so dictate.

While Parliament has the sole power to remove the Judge, what else can he Supreme Court do under the present circumstances. If the Judge is found guilty of contempt or criminal misconduct then criminal prosecution against a Judge would lie even before he is removed by Parliament. Post its deliberations, the Seven Judge Constitution Bench may also direct the Union Government to initiate immediate steps, in the nature of a notice of impeachment, to seek removal of the erring Judge. Our constitution makers understandably didn’t envisage a situation when a person holding a high constitutional office would not demit office with grace even when the highest court has lost faith in his ability to hold office. While the Judges appointment has drawn much attention in recent times, the current circumstances demonstrate that time has come to also take a close look at the process of removal. For now, our judiciary may be guided by Lord Denning remark “if we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.”

Satvik Varma is a litigation counsel and corporate attorney in New Delhi. A graduate of Harvard Law School, he is enrolled in India and New York.