Once the motion is adopted by both the Houses of Parliament, it is sent to the President who will issue an order for the removal of the judge

Recently, CPM general secretary Sitaram Yechury wrote to the President of India to recall the Chief Justice of Jammu and Kashmir-Ladakh High Court, Pankaj Mithal, alleging that he violated the constitution and his oath and compromised the constitutional office held by him.

He referred to the comments of the Chief Justice at a seminar organized by the Akhil BharatiyaAdhivakta Parishad he found questionable.

By no stretch of imagination commenting a provision of the constitution or discussing its efficacy can be described as unconstitutional. The constitution itself provides scope for amendments; that means one can have a different opinion on the existing provisions. When the erstwhile provision, which was without secularism and socialism, was not acceptable, the members of parliament thought it fit to amend the provision to include the same.  Hence, the MPs differed with the earlier provision of the constitution and by extending the analogy of Yechury's allegation, should those MPs be branded as violators of the constitution?

It is all the more ridiculous to urge the President of India to recall a High court chief justice. There are various constitutional provisions for the removal of High Court and Supreme Court judges.

Article 124(4) of the constitution says that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than twothirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

Article 218 of the constitution says that application of certain provisions relating to Supreme Court to High Courts. The provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court.

There is also the Judges (Inquiry) Act, 1968 which regulates the procedure for the investigation and proof of the misbehaviour or incapacity of a Supreme Court or of a High Court judge and for the presentation of an address by Parliament to the President and for matters connected therewith.

High Court and Supreme Court judges can be removed only by following the prescribed procedure:

 An impeachment motion may originate in either House of Parliament. To initiate proceedings: (i) at least 100 members of Lok Sabha may give asigned notice to the Speaker, or (ii) at least 50 members of Rajya Sabha may give a signed notice to the Chairman.  The Speaker or Chairman may consult individuals and examine relevant material related to the notice.  Based on this, he or she may decide to either admit the motion or refuse to admit it.

If the motion is admitted, the Speaker or Chairman will constitute a three-member committee to investigate the complaint. It will comprise: (i) a Supreme Court judge; (ii) Chief Justice of a High Court; and (iii) a distinguished jurist.  The committee will frame charges based on which the investigation will be conducted.  A copy of the charges will be forwarded to the judge who can present a written defence.

After concluding its investigation, the Committee will submit its report to the Speaker or Chairman, who will then lay the report before the relevant House of Parliament. If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated.

The motion for removal is required to be adopted by each House of Parliament by: (i) a majority of the total membership of that House; and (ii) a majority of at least two-thirds of the members of that House present and voting. If the motion is adopted by this majority, the motion will be sent to the other House for adoption.

Once the motion is adopted in both Houses, it is sent to the President, who will issue an order for the removal of the judge.

One fails to understand the purpose of writing a letter to the President for recalling a high court judge without following the due process. But judiciary need not keep quiet and the judiciary can contemplate suo motu action against the complainant for unsubstantiated charges in public domain with questionable intent.

(The writer is a retired banker. The views expressed are personal.)