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👉 High Court Judges in India: Tenure, Removal & Safeguards for Judicial Independence (Part 2)

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Tenure, Removal, and Independence of High Court Judges in India: Key Provisions and Safeguards


📜 I. Introduction: The Cornerstone of Judicial Independence

The High Courts in India, established under Part VI, Chapter V of the Constitution, form the crucial tier of the country’s superior judiciary. Their role as the final interpreter of the law at the state level, coupled with their extensive original and appellate jurisdiction and powerful writ jurisdiction (Article 226), makes their independence paramount. The constitutional provisions governing the tenure and removal of High Court judges are meticulously designed to ensure they can dispense justice sine ira et studio (without anger or bias) and uphold the Rule of Law without fear of political or executive retribution.

The independence of the judiciary, reinforced as a part of the Basic Structure of the Constitution by the Supreme Court, is guaranteed through specific provisions related to:

  1. Security of Tenure
  2. Difficult Removal Process (Judicial Accountability)
  3. Fixed Service Conditions
  4. Financial Autonomy

📅 II. Tenure of a High Court Judge (Article 217(1))

The Constitution does not prescribe a fixed tenure for a High Court Judge but specifies the conditions under which they cease to hold office, thereby granting them security of tenure.

A. Age of Retirement

A High Court Judge holds office until they attain the age of 62 years. This age limit was raised from 60 years to 62 years by the 15th Constitutional Amendment Act, 1963.

B. Modes of Vacating Office

A High Court Judge may vacate their office in any of the following four ways before completing the retirement age:

Mode of Vacating OfficeConstitutional ProvisionDetails
1. ResignationProviso (a) to Article 217(1)By writing under their hand addressed to the President of India.
2. RemovalProviso (b) to Article 217(1) read with Article 218By an order of the President passed after an address by Parliament has been presented in the same session.
3. TransferArticle 222On being transferred to another High Court by the President after consultation with the Chief Justice of India (CJI).
4. Appointment to SCArticle 124(2)On being appointed as a Judge of the Supreme Court.

C. Determination of Age

A critical safeguard is provided under Article 217(3). Any question regarding the age of a High Court Judge is to be decided by the President after consultation with the Chief Justice of India (CJI). The decision of the President is considered final. This provision ensures that the Executive (President acting on the advice of the Council of Ministers) does not have unilateral power to question a judge's age and remove them, making the role of the CJI pivotal.


🔨 III. Removal of a High Court Judge: The Impeachment Process

The removal mechanism for a High Court Judge is deliberately stringent, designed to insulate the judiciary from political pressures. The procedure is identical to that of a Supreme Court Judge.

A. Constitutional Basis and Grounds

The removal procedure is specified in:

  • Article 218: Extends the provisions of Article 124(4) and (5), which govern the removal of Supreme Court Judges, to High Court Judges.
  • Grounds for Removal: A judge can be removed only on the grounds of:
    1. Proved Misbehaviour
    2. Incapacity

The Constitution does not define these terms. Judicial interpretation has generally held "misbehaviour" to include willful misconduct, corruption, misuse of office, or moral turpitude, and "incapacity" to include physical or mental inability to perform judicial duties.

B. The Judges (Inquiry) Act, 1968

Parliament enacted this Act to regulate the procedure for the investigation and proof of misbehaviour or incapacity.

Flowchart: Removal Procedure (Quasi-Impeachment)

Detailed Procedural Steps

StepRequirement/ActionKey PlayerConstitutional/Statutory Backing
1. InitiationMotion signed by: 100 members of Lok Sabha (LS) OR 50 members of Rajya Sabha (RS).Members of Parliament (MPs)Judges (Inquiry) Act, 1968
2. ScrutinyThe Speaker/Chairman may admit or refuse the motion (discretionary power).Speaker (LS) / Chairman (RS)Judges (Inquiry) Act, 1968
3. CommitteeIf admitted, a 3-member committee is constituted to investigate.Speaker / ChairmanJudges (Inquiry) Act, 1968
4. Committee Composition1. A sitting Supreme Court Judge (or CJI). 2. A Chief Justice of a High Court. 3. A Distinguished Jurist.-Judges (Inquiry) Act, 1968
5. InvestigationCommittee investigates, holds inquiry, and submits its report to the Presiding Officer.Inquiry CommitteeJudges (Inquiry) Act, 1968
6. Parliamentary VoteIf the report finds the judge guilty, the motion must be passed by a Special Majority in EACH House of Parliament in the SAME Session.Parliament (Lok Sabha & Rajya Sabha)Article 124(4) / Article 218
7. Final OrderThe President issues the order for removal after the Parliament's address.President of IndiaArticle 124(4) / Article 218

The Special Majority

The resolution for removal must be supported by a Special Majority in each House of Parliament:

  1. A majority of the total membership of that House (Absolute Majority).
  2. A majority of not less than two-thirds of the members of that House present and voting (Two-Thirds Majority).

🛡️ IV. Constitutional Safeguards for Judicial Independence

The rigorous removal process is only one of the many constitutional provisions that collectively ensure the judiciary remains independent of the Executive and the Legislature.

S. No.Constitutional ProvisionSafeguard MechanismArticle(s)
1.Mode of AppointmentThe Collegium System (developed through judicial pronouncements) ensures the judiciary has primacy in appointments, limiting Executive discretion.Art. 217 (read with Art. 124 and Judges Cases)
2.Security of TenureJudges can only be removed through a difficult parliamentary process, not at the pleasure of the President/Executive.Art. 217(1)
3.Fixed Service ConditionsThe salaries, allowances, privileges, and pensions cannot be varied to their disadvantage after appointment, except during a financial emergency (Article 360).Art. 221
4.Charged ExpenditureThe salaries and allowances of HC Judges, along with the administrative expenses of the High Court, are charged upon the Consolidated Fund of the State (CFS). Pensions, however, are charged on the Consolidated Fund of India (CFI). This expenditure is non-votable by the State Legislature.Art. 202(3)(d), Art. 221
5.Conduct of JudgesThe Constitution prohibits discussion on the conduct of a judge in the discharge of their duties in either Parliament or a State Legislature, except when a motion for their removal is under consideration.Art. 121, Art. 211
6.Ban on PracticeA permanent judge of a High Court is prohibited from pleading or acting in any court or before any authority in India except the Supreme Court and the other High Courts. This prevents the possibility of a judge delivering a biased judgment in anticipation of future employment.Art. 220
7.Separation of Judiciary from ExecutiveArticle 50 (DPSP) mandates the State to take steps to separate the judiciary from the executive in the public services, ensuring the lower judiciary is also free from executive influence.Art. 50

⚖️ V. Judicial Interpretations and Landmark Cases

The Supreme Court has consistently reinforced judicial independence as an unassailable feature of the Constitution, particularly in relation to the appointment and transfer of High Court judges, which indirectly affects their tenure and working independence.

1. Kesavananda Bharati vs. State of Kerala (1973)

  • Principle: The Supreme Court propounded the Basic Structure Doctrine.
  • Significance: The Independence of the Judiciary was declared to be a part of the Basic Structure of the Constitution, meaning this feature cannot be taken away even by a constitutional amendment.

2. S.P. Gupta vs. Union of India (First Judges Case, 1982)

  • Observation: The Court held that the President's consultation with the CJI (and in the case of HCs, the concerned High Court CJ) was not binding. The primacy of the Executive in appointments was acknowledged.
  • Impact: Temporarily tilted the balance of power towards the Executive, though later reversed.

3. Supreme Court Advocates-on-Record Association vs. Union of India (Second Judges Case, 1993)

  • Principle (Collegium): The Court effectively reversed the S.P. Gupta case, establishing the Collegium System. It held that "consultation" must mean "concurrence" to protect judicial independence, giving the opinion of the CJI primacy.
  • HC Appointments: The power of appointment of a High Court Judge involves the Collegium (CJI + two senior-most SC judges), the concerned High Court Chief Justice, the State Governor, and the President. The primacy of the Collegium reinforces the independence of the prospective appointee from political influence.

4. In Re: Under Article 143(1) of the Constitution (Third Judges Case, 1998)

  • Clarification (Collegium): The Court clarified the consultation process, holding that the Supreme Court Collegium, in making recommendations for appointments, must consist of the CJI and the four senior-most judges of the Supreme Court.

5. Supreme Court Advocates-on-Record Association vs. Union of India (NJAC Case, 2015)

  • Crucial Ruling: The Supreme Court declared the 99th Constitutional Amendment Act, 2014, and the corresponding National Judicial Appointments Commission (NJAC) Act as unconstitutional and void.
  • Rationale: The Court held that the NJAC, which gave a significant role to the Executive in judicial appointments, violated the principle of the Independence of the Judiciary, which is a part of the Basic Structure. This judgment decisively reaffirmed the judicial primacy (Collegium System) in appointments to the higher judiciary (SC and HCs).

💡 VI. Contemporary Relevance and Debates

A. Judicial Accountability vs. Independence

The high threshold for removal, while a core element of independence, has led to a debate on judicial accountability. Since Independence, no High Court or Supreme Court Judge has been formally removed (impeached) by Parliament.

  • Justice V. Ramaswami (1993): The first judge against whom removal proceedings were initiated. The Inquiry Committee found him guilty of misbehaviour, but the motion failed in the Lok Sabha as the ruling Congress abstained from voting.
  • Justice Soumitra Sen (2011): The only judge against whom a motion for removal was passed by the Rajya Sabha. He resigned before the Lok Sabha could take up the motion.
  • In-House Mechanism: Apart from the formal parliamentary removal, the Chief Justice of India, in 1997, adopted an 'In-House Procedure' to deal with complaints of misconduct against judges. If an internal committee finds a judge guilty, the CJI can advise the judge to resign or seek voluntary retirement. If the judge refuses, judicial work may be withdrawn, which is an important non-statutory mechanism of accountability.

B. Issues with the Ban on Post-Retirement Practice (Article 220)

The current ban on practice for a retired High Court Judge is only in their own High Court and courts subordinate to it. They can practice in the Supreme Court and other High Courts.

  • Criticism: Critics argue that judges are often appointed to high-profile positions (e.g., Tribunals, Commissions, Governorships, Rajya Sabha seats) shortly after retirement. This possibility of post-retirement sinecures can potentially influence their pre-retirement judgments, thereby undermining their independence. The suggestion is often made to impose a "cooling-off" period or an absolute ban on all post-retirement appointments by the Executive.

C. Transfer of High Court Judges (Article 222)

The President, after consulting the CJI, can transfer a Judge from one High Court to another. This is intended to be in the public interest (e.g., maintaining national character of the judiciary).

  • Independence Risk: Arbitrary transfers can be used as a punishment or a tool of political influence. To safeguard against this, the Supreme Court, in the Second Judges Case, ruled that transfers must be based on the recommendation of the SC Collegium (CJI + four senior-most judges), further strengthening judicial control over a judge's service conditions.

VII. Practice Questions & Answers for UPSC/Law Exams

Multiple-Choice Questions (MCQs)

Q1. A High Court Judge can be removed by the President on the grounds of: A. Violation of the Constitution and proved misbehaviour. B. Proved misbehaviour and judicial indiscretion. C. Proved misbehaviour and incapacity. D. Incapacity and failure to maintain judicial standards.

Q2. The final decision regarding any question as to the age of a High Court Judge is taken by the: A. Chief Justice of India (CJI). B. Governor of the concerned State. C. President after consultation with the CJI. D. A collegium of three senior-most High Court Chief Justices.

Q3. Which of the following constitutional provisions related to the High Court is charged upon the Consolidated Fund of India (CFI)? A. Salaries of High Court Judges. B. Allowances of High Court Judges. C. Pensions of High Court Judges. D. Administrative expenses of the High Court.

Q4. The procedure for the removal of a High Court Judge is regulated by: A. Article 218 of the Constitution. B. The Judges (Inquiry) Act, 1968. C. The High Court Judges (Salaries and Conditions of Service) Act, 1954. D. A joint committee formed by the Lok Sabha Speaker and Rajya Sabha Chairman.

Q. No.AnswerExplanation
Q1CArticle 124(4) read with Article 218 specifies only two grounds: Proved Misbehaviour and Incapacity.
Q2CArticle 217(3) explicitly states that the age determination is by the President after consultation with the CJI, and the President's decision is final.
Q3CUnder Article 202(3)(d), the salaries and allowances of HC Judges are charged on the Consolidated Fund of the State (CFS). However, their pensions are charged on the Consolidated Fund of India (CFI).
Q4BWhile the Constitution (Article 218) lays down the grounds and the Special Majority, the Judges (Inquiry) Act, 1968, details the specific procedure for investigation (motion, committee formation, report submission).

🔍 Scenario-Based Questions (Critical Analysis)

Scenario: An Inquiry Committee constituted under the Judges (Inquiry) Act, 1968, finds a sitting High Court Judge, Justice 'X', guilty of "proved misbehaviour." The report is submitted to Parliament. The ruling party, which does not have a special majority in the Rajya Sabha, asks its MPs to abstain from voting, arguing that the Committee's report is sufficient to ensure accountability.

Question for Critical Analysis: Analyze the constitutional validity and implications of the ruling party's decision to abstain from voting in this removal proceeding, and explain why the removal process must involve the Parliament even after the Inquiry Committee's guilty finding.

Answer & Analysis:

  1. Constitutional Requirement Violated (The V. Ramaswami Precedent): The ruling party's instruction to abstain, while politically expedient, undermines the explicit mandate of Article 124(4) read with Article 218. The constitutional provision requires an "address by each House of Parliament supported by a special majority" to be presented to the President.
  2. Special Majority is Mandatory: The removal is a two-step process: (a) Investigation by a judicial committee (to 'prove' the misbehaviour/incapacity), and (b) Political sanction by Parliament (to actually effect the removal). The special majority requires:
    • Majority of the total membership of the House.
    • Two-thirds of members present and voting. An abstention by a large number of MPs will make it impossible to meet the first criterion (Majority of the Total Membership), regardless of how many MPs vote in favour.
  3. Implications of Abstention: If the motion is not passed by a special majority in even one House, the removal process fails, and the judge cannot be removed. The political wing, by abstaining, essentially ensures the motion fails while maintaining a public stance of neutrality or non-interference with the judicial process. This was precisely the outcome in the case of Justice V. Ramaswami (1993), where Congress MPs abstained, causing the motion to fail despite the Inquiry Committee's guilty finding.
  4. Safeguard against Executive Tyranny: The necessity of parliamentary involvement, even after a guilty finding, is a fundamental safeguard of judicial independence. It ensures that the final act of removal is a non-partisan, cross-political consensus backed by a super-majority, preventing a simple majority government from unilaterally removing a judge based on political disagreement, thereby protecting the judiciary from the tyranny of the elected majority. The inquiry report confirms the fact of guilt, but Parliament provides the political will for removal.

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