THE PROCESS OF REMOVING JUDGES IN INDIA AND PAKISTAN

Submitted to
Name of the faculty

Assistant Professor of Law

Submitted by

Name of the student

LL.M (Constitutional Law) Semester I (2015) Roll No:7(Specialization)

Date of Submission: 5.10.2015

UNIVERSITY LOGO

NATIONAL LAW UNIVERSITY, JODHPUR

 TABLE OF CONTENTS

Page

Introduction 2

Statement of Problem 2

Research Questions 3

Research Methodology 3

Mode of Citation 3

Chapter I: 4
Removal of Judges And Independence Of Judiciary

Chapter II: 4

Process of Removing Judges in India

Chapter III: 9

Process of Removing Judges in Pakistan

Chapter IV:

Practicalities of the Two Countries 14

17
A. PAKISTAN
B. INDIA

Chapter V: Comparing The Two Processes 21

Conclusion 23

Bibliography 24

1
 INTRODUCTION

India and Pakistan as they exist today used to be one and the same thing sixty eight years ago.
However, the bitter partition effectuated in the year 1947 as a result of communal imbalances led to
their bifurcation. Recovering from the same heap of ruins, while India adopted its Democratic
Constitution immediately after achieving independence, it took Pakistan nine long years to formulate
a written Constitution. Even after such formulation, constitutional scenario was frequented by
imposition of Martial Law which had the effect of undermining and demeaning the Constitutional
Sanctity. Jinnah’s vision of a ‘modern democratic state with sovereignty resting in the people 1’ was
compromised by recurring takeovers of dictatorship. The integrity of the judiciary was tainted in
numerous occasions by arbitrary and barbaric removal of judges under the Military Rule. Certain
instances of politically colored removal of judges reflect that the Judges who favored the system of
undue Governance were unjustly rewarded whereas the other Judges who prioritized their principles
at a higher pedestal rather than submitting to the hands of capricious rule were thrown away
unscrupulously. The position was however not so in India. In India the mechanism for removing
Judges was a complete failure which is evident from the fact that till date not a single Judge has been
removed. Though India evidenced unfair supersession of ineligible Judges or frequent transfer of
Judges, the weapon of the removing them was seldom used. Rather the weapon proved dysfunctional
when the moment was ripe for it to be exercised.

STATEMENT OF PROBLEM

This paper is primarily aimed at studying the various Constitutional reforms that have taken place
with respect to the removal of Judges in India and Pakistan starting from the time of independence till
today. The researcher has further focused on the practical implementation of the constitutionally
guaranteed procedures in both the Countries. It is felt that in neither of the two countries has there
been an efficient mechanism of removing Judges. The project ends with a chapter comparing the
processes of removal of Judges in both the Countries.

The rationale behind taking up for consideration the practice of removing Judges in India and
Pakistan is that the Countries have emanated from a single stem, have been subject to the same law,
shared the same territory and culture once. Another reason being, as per their individual Constitutions

1 Jinnah words to Doon Campbell Reutor’s Correspondent ( New Delhi , 1946) as quoted in Hamid
Khan, Constitutional and Political History of Pakistan (2nd edn OUP 2001) 50

2
both aim for a democratic form of Government placing high respect for judicial independence
whereas the realities seem to differ to a massive extent.

RESEARCH QUESTIONS

To ensure clarity of scope of this work, certain research questions have been framed by the
researcher. This project primarily attempts to answer the following research question:

1. Does the process of removing Judges have a bearing on the Independence of Judiciary?

2. What were the reforms brought about in the Law with respect to process of removal of Judges
in India and Pakistan from the time of independence till today?

3. To what extent have the laws been strictly applied in the practical scenario prevalent in both
the Countries?

4. On what grounds can a comparison between the two countries be made?

5. What are major differences between India and Pakistan on the matters of Laws of Removal of
Judges and the actual procedure adopted so far?

RESEARCH METHODOLOGY

The research undertaken is purely a doctrinal research. However for the purpose of substantiating
certain propositions the researcher has to some extent resorted to historical research as well. The
researcher paid regular visits to the University Library for facilitating her research. Access to the
legal research database provided by University website was of immense help to the researcher.

METHOD OF CITATION

The citation design that has been uniformly followed in this paper is the Oxford Standard for the
Citation of Legal Authorities (OSCOLA), Fourth Edition 2010 published by the University of
Oxford.

3
 CHAPTER I:
REMOVAL OF JUDGES AND INDEPENDENCE OF JUDICIARY

An independent judiciary is one of the strongest pillars of liberal democracy. Peter H. Russel talks
about the expectations from a general theory of Judicial Independence. According to him, the first
requirement of a general theory of judicial independence is analytical clarity about the kind of
phenomenon being referred to when we talk about judicial independence. The second and third
requirement he says is to have a coherent idea of the purpose or rationale of judicial independence
and to identify the major components or elements of Judicial Independence2. There is however no
unanimity of opinion as to what degree of independence must be guaranteed in order to assure that
the judicial operation is in conformity with the demand of the Country’s Governmental setup.
Divergent opinions also exist as to the various factors that are considered to affect judicial
independence. There can be no denial of the fact that to the minimum, Judges must in all cases and in
all governmental setups be given a certain extent of autonomy owing to the nature of function they
discharge. The question of removal of Judges undoubtedly falls within the purview of such inherent
autonomy. Where the office is held in high esteem, term of an office held is secured and the process
of removal is arduous, there generally comes an instinctive duty of upholding the integrity of the
office. It is a matter of general consensus that certain matters like removal of Judges are inseparably
attached to the very base of judicial independence.

The society has a vested interest in the independence of judiciary as it would like to ensure that the
rule of law is upheld. The State spends considerable amount in the judicial infrastructure and accords
high respect to the Judges. It expects impeccable integrity, honesty and impartiality as also highest
standards of conduct from them. The deviant behavior may undermine the confidence of the people
in the Judiciary. It therefore visits such behavior with removal of a Judge but an impartial mechanism
has often been provided so that the executive is not being able to trample judicial independence3. An
independent Judiciary is an indispensable requisite of a free society under the Rule of Law. Such
independence implies freedom from interference by the executive or the Legislature with the exercise
of the judicial function, but does not mean that the judge is entitled to act in an arbitrary manner. His
duty is to interpret the law and the fundamental principles and assumptions that underlie it4.

2 Peter H. Russel, ‘Toward a General Theory of Judicial Independence’ in Peter H. Russel and David M.
O’Brien(eds), Judicial Independence in the Age of Democracy: Critical Perspectives from Around The World(
University of Virginia Press 2001) 3, 4
3 Subhash C. Jain, Removal of A Judge of The Supreme Court/High Court And The Powers of The Parliament’, The
Constitution of India: Select Issues and Perceptions ( Taxman 2000) 87
4 One of the conclusions of the New Delhi Conference as cited in R.F. V, Essays in Constitutional Law (2nd edn, universal
Law Publishing Company Second Indian Reprint 2011) 52,53

4
 CHAPTER II:

PROCESS OF REMOVING JUDGES IN INDIA

In India, a Judge of the Supreme Court and High Court can be removed by an order of the President.
There are two grounds based on which a Supreme Court Judge or a High Court Judge can be
removed the first being ‘Proved Misbehaviour’ and the second being ‘Incapacity’. However for the
purpose of effecting such removal, 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 two-thirds of the members of
that House present and voting has to presented to the President in the same session for such removal
on the ground of proved misbehaviour or incapacity. The word ‘proved’ in this provision indicates
that the address can be presented by Parliament only after the alleged charge of misbehaviour or
incapacity against the Judge has been investigated, substantiated and established by an impartial
tribunal5.

However regarding the regulation of the procedure for the presentation of an address and for the
investigation and proof of the misbehaviour or incapacity of a Judge the Constitution remains silent
and the Parliament has been given the power to make laws in this regard. In conformity with such a
mandate of the Constitution, the Parliament has in 1968 enacted the Judges (Inquiry) Act, 1968 to
regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a Judge of
the Supreme Court or of the presentation of an address by Parliament to the President and for matters
connected therewith6. The process applies to the removal of High Court Judges as well by virtue
Article 217(1)(b) of the Indian Constitution which states a Judge of High Court may be removed
from his office by the President in a manner provided in Article 124(4) for the removal of a Judge of
Supreme Court and Article 218 which states that the provisions of Clause(4) and (5) of article 124
shall apply in relation to a High Court .

The procedure to be followed under the Judges Inquiry Act, 1968 may be summarised as follows:

1. FILING A MOTION:

Where a notice of a motion for presenting an address to the President praying for the removal of a
Judge is being given:

5 M.P Jain, Indian Constitutional Law( 7th edn, Lexis Nexis 2015) 199

6 The Judges (Inquiry) Act,1968 ( 51 of 1968 ) Long Title

5
  If such a notice is given in the Lok Sabha, it must be signed by at least hundred members
of the House

 If such notice is given in the Rajya Sabha, it must be signed by at least 50 Members of the
House.

The question of admitting the motion or refusal to admit the proposed motion has been vested on the
Speaker or, as the case may be, the Chairman of the Rajya Sabha who may come to such a conclusion
after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as
may be available to him.

2. PROCEDURE ON ADMISSION:

When a motion is admitted, it shall be kept pending by the Speaker or the Chairman as the case may
be and he shall immediately thereafter constitute a Committee for investigation into the matter. The
Committee shall comprise of the three members one of whom shall be chosen from among the Chief
Justice and other Judges of the Supreme Court; the second member shall be chosen from among the
Chief Justices of the High Courts; and the third member shall be a person who is in the opinion of the
Speaker or, as the case may be, the Chairman, a distinguished jurist.

In case where a motion is brought on the same day in both the House, a Committee shall be formed
only when the motion has been accepted by both the Houses after which the Committee shall be
constituted by both the Houses.

 FRAMING OF CHARGES AND RIGHT OF DEFENCE:

The Committee shall frame definite charges against the Judge on the basis of which the investigation
is proposed to be held. Such charges together with a statement of the grounds on which each such
charge is based shall be communicated to the Judge and he shall be given a reasonable opportunity of
presenting a written statement of defence within such time as may be specified in this behalf by the
Committee.

 IN CASE OF PHYSICAL OR MENTAL INCAPACITY:

Where it is alleged that the Judge is unable to discharge the duties of his office efficiently due to any
physical or mental incapacity and the allegation is denied, the Committee may arrange for the
medical examination of the Judge by a Medical Board and the Judge shall submit himself to such
medical examination. The Board shall after completing its examination submit a report to the
Committee of its findings as to whether the Judge is fit to continue.
6
If the Judge refuses to undergo medical examination the Board shall report to the Committee of such
refusal and the Committee may, on receipt of such report, presume that the Judge suffers from such
alleged physical or mental incapacity.

After considering the written statement of the Judge and the medical report the Judge shall be given a
reasonable opportunity of presenting a fresh written statement of defence. The Central Government
may, if required by the Speaker or the Chairman, or both, as the case may be, appoint an advocate to
conduct the case against the Judge.

 REPORT OF COMMITTEE

The Committee has been given the power to regulate its own procedure in making the
investigation and shall give a reasonable opportunity to the Judge of cross-examining witnesses,
adducing evidence and of being heard in his defence. At the conclusion of the investigation, the
Committee shall submit its report to the Speaker or the Chairman or both stating its observations.

The Speaker or the Chairman, or both shall cause the report to be submitted before the House of
the People and the Council of States. For the purpose of making any investigation under this Act,
the Committee shall have the powers of a civil court with respect to certain matters. If the report
of the Committee contains a finding that the Judge is not guilty of any misbehaviour or does not
suffer from any incapacity, then, no further steps shall be taken in either House of Parliament in
relation to the report and the motion pending in the House or the Houses of Parliament shall not
be proceeded with.

If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or
suffers from any incapacity, then, the pending motion along with the report will be taken up for
consideration by the House or the Houses of Parliament in which it is pending.

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 the clause read with article 218 of
the Constitution, then, the misbehaviour 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.

 RULE MAKING POWER OF THE JOINT COMMITTEE:

7
Power to make rules for carrying out the Purposes under this Act has been given to a Joint
Committee of both Houses of Parliament. The Joint Committee shall consist of fifteen members
of whom ten shall be nominated by the Speaker and five shall be nominated by the Chairman.
The Joint Committee may make rules to provide for the manner of transmission of a motion
adopted in one House to the other House of Parliament, the manner of presentation of an address
to the President for the removal of a Judge, the facilities which may be accorded to the Judge for
defending himself, any other matter. The rules of the Joint Committee will take effect only when
they are approved and confirmed both by the Speaker and the Chairman and are published in the
Official Gazette, and such publication of the rules shall be conclusive proof that they have been
duly made.

Therefore in India the process embodied in the Constitution for removing a Judge is primarily a
Parliamentary process to be concluded by the President. Though the other organs have been
allowed to participate in the process, their role is minimum when compared to the final decision
making power of the Parliament.

8
 Chapter III:

Process of Removing Judges in Pakistan

A. THE THREE CONSTITUTIONS:

At the outset it is worth mentioning that Pakistan ever since its independence has witnessed the birth
of three consecutive Constitutions. Initially it was the Government of India Act, 1935 which served
as a provisional Constitution for Pakistan. After a span of nine years after its independence in 1947,
Pakistan adopted its first Constitution on March 23, 1956. However the Constitution remained
operative till 8th October 1958 when Martial Law was imposed by the President, General Iskander
Mirza. In the year 1958, General Ayub Khan, the Martial Law administrator took over the
administration of Pakistan. A new Constitution was framed in March 1 st, 1962 under the regime of
General Ayub Khan with the exceptional feature establishing a Presidential form of Government and
abolishing the office of the Prime Minister. The third Constitution which is presently in force was
enacted in 1973 which reversed the pervasion of Presidential monocracy and subjected the exercise
of Presidential power to Prime Ministerial advice while including safeguards against abuse of
power7.

B. REMOVAL PROCESS FROM 1947 TILL THE CONSTITUTION OF 1956

The Indian Independence Act 1947 which provided for the partition of India provided that until such
time that Constitution was framed by the Constituent Assembly of Pakistan, the country (Pakistan)
was to be governed by the Government of India Act 19358. Pakistan therefore embraced the
Government of India Act, 1935 as its Interim Constitution. The government machinery including the
Judicature remained more or less the same.

Judges of the Federal Court and High Courts: Under the Interim Constitution, A judge of the
Federal Court of Pakistan could not be removed except on the ground of misbehaviour or of infirmity
of mind or body on the report of the Judicial Committee of the Privy Council. Similarly the Judges of
the Two High Courts established (The Dhaka High Court and Lahore High Court) could only be

7 Osama Siddique, The Jurisprudence of Dissolution: Presidential Power to Dissolve Assemblies Under The Pakistani
Constitution And Its Discontents, 23 ARIZ J. INT’L & COMP. LAW 615 (2006) as cited in Madhulika Kanaujia and
Rimi Jain, 'Dawn of a new democracy in Pakistan: Legal and Political Implications of Nadeem Ahmed v Federation of
Pakistan' [2009] II(4) NUJS Law Review 713

8 Indian Independence Act, 1947 s8

9
removed on the grounds of misbehaviour or infirmity of mind or body by the Governor General if the
Federal Court so reported on a reference being made to it9.

C. REMOVAL OF JUDGES UNDER THE CONSTITUTION OF 1956

Under the new Constitution of 1956, the removal of a Judge of the Supreme Court was similar to one
provided under the Constitution of India10.

Judges of Supreme Court: A Judge of the newly designed Supreme Court of Pakistan could only be
removed on the presentation of an address by the National Assembly by not less than one/third of the
members of the assembly; by the President if after due investigation and proof of misbehaviour or
infirmity of mind or body was established with the national assembly votes for his removal by two-
thirds of his members present and voting (but not less than a majority of total membership11.

Judges of High Courts: The Judges of the two High Courts established for the provinces of East
Pakistan and West Pakistan could be removed from office by an order of the President made on the
Ground of misbehaviour or infirmity of mind or body if the Supreme Court on reference being made
to it by the President reported that a Judge ought to be removed on any of those grounds12.

D. PROCESS OF REMOVAL UNDER THE CONSTITUTION OF 1962

The Constitution of 1956 continued only for two and a half years. A wide range of reasons in the
political arena led to the then President Iskandar Mirza announcing proclamation of martial law
throughout the country in 8th October, 1958. This marked the commencement of frequent impositions
of military rule in Pakistan and recurring compromises with security of tenure of Judges. The
proclamation led to the suspension of the constitution. On 10th October, 1958, the Laws (Continuance
in Force) Order was promulgated with a view to bringing about a new legal order. Under this, though
the Supreme Court and High Courts were ensured a certain level of independence, but in the most
important sphere its wings were amputated. The Courts were barred from calling into question any
order made under the Martial Law.

9 Hamid Khan, Constitutional and Political History of Pakistan (2nd edn OUP 2001) 53
10 Constitution of India, 1949 Art.124
11 Constitution of Islamic Republic of Pakistan, 1956 Art.151
12 Ibid Art.169

10
Subsequently the power was grabbed by the subsequent President and the Martial Law
Administrator, Muhammad Ayub Khan who appointed a Constitution Commission on 17 th February
1960 to examine causes of failure of parliamentary democracy.

The Constitution Commission’s Recommendation: revisited the procedure of removal of Judges.

The Commission preferred that A Supreme Court Judge should be removed by way of impeachment.
The resolution of impeachment was to be signed by not less than one fourth of the total number of
Members of the House of People. Fourteen days’ notice thereof should be given before it being
moved and if the resolution was passed by a majority of the total number of that house, trial on the
charges alleged in the resolution should be held in the Senate. The person impeached would then
have to vacate his office should he be found guilty by two-thirds of the total number of members of
the Senate. As for the removal of High Court Judges the Commission favored the procedure adopted
in the last constitution under Art.16913.

Under the Constitution of 1962:

Unlike the Constitution of 1956, the Constitution of 1962 vested absolute power of removing a Judge
of the Supreme Court Judge or the High Courts on the President. A Supreme Judicial Council was
formed comprising the Chief Justice of the Supreme Court, two next senior judges of the Supreme
Court and the Chief Justice of every High Court. If found out on the information received from the
Council or any other source that the Judge is incapable for performing the duties under his office as a
result of physical or mental incapacity or is guilty of misconduct, then after directing further
investigation by the Council, the President could remove a Judge. This method of removing Judges
in in line with the recommendations of the First Constituent Assembly in the draft constitution of
1954.

E. REMOVAL UNDER THE CONSTITUTION OF 1973:

The duty to discharge judicial powers has been vested on the Supreme Court of Pakistan; a High
Court for each province which shall include a High Court for the Islamabad Capital territory and such
other Courts as may be established by law14. As this project focuses primarily on the procedure of

13 Khan(n 9) 134
14 Constitution of Pakistan, 1973 Art.175

11
removal of Judges of the higher Judiciary i.e. the Supreme Court and the High Court respectively, we
shall first look into the situations when the seat of a Supreme Court Judge falls vacant15:

1. When the Judge attains the age of 65 years

2. When the judge resigns
3. When the Judge is removed from office
Similar is the case of the Judges of High Courts whose office shall fall vacant only in the above
stated circumstances the only exception being the age of retirement which in case of the Judges of
High court is 62 years.16

Chapter 4 of the Constitution spells out the General Provisions Relating to the Judicature. The most
sensitive circumstance when the office of a Judge falls vacant is when he is removed from the office
in accordance with the Constitution. The Judges of the Supreme Court and high Courts are removed
by the President17. In order to ease the process removal of Judges the Constitution mandates the
establishment of a Supreme Judicial Council18. Article 209 enumerates the procedure to be followed
by the Council in removing Judges of the higher judiciary19. The Supreme Judicial Council shall
consist of the following:-

1. The Chief Justice of Pakistan;

2. The two most senior judges of the Supreme Court; and
3. The two most senior Chief Justices of High Courts.

The question of ‘seniority’ of judges of High Courts shall be determined with reference to their dates
of appointment as Chief justice otherwise than as acting chief justice and in case the dates of such
appointment are the same, with reference to their dates of appointment as Judges of any of the High
courts20. In the following cases21 mentioned hereinafter, the Supreme Judicial Council can either on
the direction of the President or on its own motion undertake the task of inquiry if on the information

15 Art.179 subs. By Constitution(Seventeenth Amendment) Act, 2003(3 of 2003),

s.6 16 Art.195, subs. By Constitution(Seventeenth Amendment) Act, 2003(3 of

2003), s.7 17 Constitution of Pakistan, 1973 Art. 209(6)(b)

18 Ibid Art. 209
19 Ibid Art.209(7)

20 Ibid Explanation to Article 209(1)

21 Ibid Art. 209(5),Ins. By the Constitution(Eighteenth Amendment) Act, 2010(10 of 2010) s.76

12
obtained from any source, the Council or the President is of the opinion that a Judge of the Supreme
Court or of a High court-

1. May be incapable of properly performing the duties of his office by reason of physical or
mental incapacity; or
2. May have been guilty of misconduct
Initially the Supreme Judicial Council could only inquire into the matter of capacity or behavior of a
judge based on the references made by the President of Pakistan but after the 2004 amendment,
power to inquire on its own motion was given to the Council22.

However, if the Council is inquiring into the capacity or conduct of a Judge who himself is a member
of the Council or if a member of the Council who is a Judge and is absent or is unable to act due to
illness or any other cause, then the following persons shall replace such a member:

1. Where such a member is a Judge of the Supreme Court, the Judge of the Supreme Court who
is next in seniority below the two member-Judges of the Council from the Supreme Court.

2. Where such member is the Chief Justice of a High Court, the Chief Justice of another High
Court who is next in seniority to such Member-Judge amongst all the Chief Justices of the
remaining High courts.

After inquiring into the question of capacity or conduct if the Council concludes in its final report to
the President that the Judge is incapable of performing the duties of his office or has been guilty of
misconduct as a result of which he should be removed from office, the President may remove the
concerned Judge from office23.

The Constitution dictates that the Council shall issue a Code of Conduct to be observed by Judges
of the Supreme Court and High Courts24.

Since 1973, the Supreme Judicial Council has not taken formal proceedings against any judge. There
were few references of misconduct filed before the adoption of the 1973 Constitution, of which two
were contested25

22 Ibid
23 Ibid Art.209(6)
24 Ibid Art.209(8)
25
The State v Justice Akhlaq Hussain PLD 1960 SC 26; and The President v Justice Shaukat Ali PLD 1971 SC 585 as
cited in ‘The struggle to maintain an independent judiciary: a report on the attempt to remove the Chief Justice of

13
 CHAPTER IV: PRACTICALITIES OF
THE TWO COUNTRIES

A. PAKISTAN

During Pakistan’s first forty-six years of existence, the military has directly ruled the country for
twenty three years and has asserted dominant political control for another twelve more years, using
extra-constitutional tool for assuming political power26.

The Constitutional supremacy in Pakistan has been undermined repeatedly in Pakistan ever since the
Declaration of First Martial Law in 1958. Judicial independence is one of the most integral
requirements of upholding Constitutional Supremacy. Mechanisms for removing judges are also
pivotal to judicial independence. While an effective removal mechanism is necessary to ensure that
judges who succumb to financial or political corruption can be taken off the bench, the power to
divest a judge of his or her robes can be a potent political tool27. Several times the Constitutional
functioning been disgraced by imposition of military rule and consequently unjust malpractices were
adopted towards the Judiciary which include arbitrary removal of independent Judges showing signs
of protest against the tyrannical behavior. General Zia started the practice started the practice of
arbitrary removal of Judges of the superior Courts and General Musharraf followed the footprints of
General Zia28.

In 1977, during the time of imposition of Military Rule by General Zia and the then controversies
regarding the detention of the Prime Minister Zulfikar Ali Bhutto, the Prime Minister’s wife Begum
Nusrat Bhutto filed a petition29 before the Supreme Court challenging the imposition of Martial Law
by General Zia. The petition was supposed to be heard by Justice Yakub Ali who was initially in the

Pakistan the global voice of the legal profession’ An International Bar Association Human Rights Institute Report
Supported by the Foundation Open Society Institute July 2007
26 Madhulika Kanaujia and Rimi Jain, 'Dawn of a new democracy in Pakistan: Legal and Political Implications of
Nadeem Ahmed v Federation of Pakistan' [2009] II(4) NUJS Law Review 714

27 Aziz Z. Huq, ‘Mechanisms of Political Capture in Pakistan’s Superior Courts’[2003-2004] 10 Yearbook of

Islamic and Middle Eastern Law 35
28 Amanullah Shah, ‘Impact of Army on Independence of the Judiciary in Pakistan’ (Gomal Law review 2009) available
at www.gu.edu.pk/New/GUJR/PDF/Dec-2009/7 Amanullah Shah-Impact of Army on the Judiciary.pdf accessed on
21.09.2015
29 Begum Nusrat Bhutto v Chief of Army Staff PLD 1977 Supreme Court (SC 657)

14
good books of General Zia. Justice Ali was immediately removed and replaced by Justice Anwar-ul-
Huq, a close friend of Zia. The imposition of Martial Law was upheld30.

The Constitution has ever since its enactment failed to receive the dignity that is supposed to receive.
Thrice has there been declaration of Provisional Constitutional Order in the year 1981, 1999 and
2007. The Provisional Constitutional Order of 1981 made the military leaders and their decisions
exempt from judicial oversight31. In late March, 1981, a Provisional Constitutional Order (PCO) was
issued that further undermined an already toothless judiciary. General Zia could appoint and remove
judges without consulting senior judges. Not every serving judge was invited to take oath under the
PCO, an artful device used to eliminate those suspected of pro PPP sympathies and weed out those
like Justices Mushtaq and Anwar-ul-Haq who had become political liabilities for the regime. The
oath being humiliating even for a judiciary known for its supine adherence to executive will and led
to resignation of a few judges who put principles first32. This episode is very unfortunate chapter in
the constitutional and judicial history of Pakistan. As an organ of the State, the judiciary was insulted
and humiliated by the military government who had no respect for the rule of law and the institutions
under the constitution33.

After the issuance of the new Provisional Constitutional Order, on 20th of January 2000, a
notification was issued by the Musharraf Government that all judges were to swear a new oath under
the PCO abandoning their initial oath taken under the Constitution of 1973. A similar situation was
created by General Zia who after declaring the PCO on March 24,1981 mandated that all judges
should take oath under the then PCO. After being informed of the oath taking ceremony under the
1999 PCO by President Musharraf and repeated requests by Interior Minister, the ISI head and others
Chief Justice Saiduzzaman Siddiqui declined to proceed. Four other Supreme Court judges declined
to take the oath. Finally all the Five Supreme Court Judges finally resigned from their offices. Certain
other judges were not even intimated of the oath. In total thirteen judges from both Supreme Court
and high courts either declined such a proposal or were not given an opportunity to take the oath 34.
Another landmark incident where approximately one hundred Judges spread over Lahore High court,
30 Anthony Hyman, Muhammed Ghayur, Naresh Kaushik, Pakistan, Zia and After (Abhinav Publications First
Published in India in 1989) 39

31 Seyyed Vali reza Nasr, Islamic Leviathan: Islam and the making of State Power (OUP 2001)
32 Ayesha Jalal, The Struggle For Pakistan: A Muslim Homeland and Global Politics
33 Khan (n 9) 360
34, Eugene Cortan and Martin Lau(eds), Yearbook of Middle Eastern law, Volume 10(2003-2004) (Brill
Academic Publishers

15
Islamabad High Court and Sindh High Court were removed as a result of of their refusal to take oath
took place during the continuance of the Provisional Constitutional Order of 2007 proclaimed by
Parvez Musharraf.

A perusal of the historical records of Pakistan reveals that the Judiciary was nothing but a mere
mockery in itself. The performances of a large number of Judges hardly reflect their individual
choices. Moreover the rate of indirect removal of Judges seems to be higher than those involving a
lawful removal mechanism. By the term ‘indirect’ is meant that at times circumstances were
fabricated in a manner sufficient to attack on a Judge’s self-dignity compelling him to resign.

Judges of the superior judiciary not only failed to collectively resist the onslaught on the
independence of judiciary but they have been so docile and passive that they could not protest even at
humiliation of their brother judges35.

The most recent incident on this issue which happened in 2007 led to the restoration of faith on the
Supreme Court of Pakistan which for years survived under the Executive whim. The lack of
deference toward the executive which was an unusual display of uprightness by the Supreme Court of
Pakistan, coupled with the rousing popular acclaim and the support of the legal profession for the
Chief Justice’s reinstatement, was an episode redefined the executive – judicial relations in Pakistan.
Judicial independence has remained an unattained constitutional standard in Pakistan, but the
reinstatement of the Chief Justice could enable an emboldened Supreme Court to enter into a new era
of respectability36. The most dreadful incident happened where the The Chief Justice of Pakistan
(CJP), Justice Iftekar Muhammad Chaudhury was asked by President Parvez Musharraf to resign
from office in the presence of the Prime Minister and certain other uniformed officials at the Army
House. Thereafter the CJP was informed of the allegations of misconduct brought against him to his
the CJP refused. He was subsequently subject to indirect torture and is reported to have been
manhandled due to such refusal. The President referred the matter to the Supreme Judicial Council
which ordered suspension of the functions of the CJP and immediately another CJP was made to
swear in. The Supreme Court cancelled the Council’s inquiry and admitted the petition filed by the
CJP challenging the legality of the reference that was made before the Council. On July 2007, the
thirteen Judges Bench of the Supreme Court came up with a historic decision declaring the actions of

35 Amanullah Shah, Muhammad Iqbal Khan, Mobina Mahsood, “Superior Judges’ Commitment To Judicial
Independence In Pakistan” ( Gomal University Journal of Research, 27(2). December, 2011) 56

36 “Suspension and Reinstatement of the Chief Justice of Pakistan: From Judicial Crisis to Restoring Judicial
Independence?”(library of Congress) available at http://www.loc.gov/law/help/pakistan-justice.php visited on 3.10.2015

16
Musharraf unconstitutional and dismissed the charges brought against the CJP and declared that the
evidence furnished by the government was vexatious and scandalous.

B. INDIA

In India, the provisions of clauses (4) and (5) of Article 124 dealing with removal of Supreme Court
Judges and Article 217(1)(b) and Article 218 relating to removal of Judges of High Courts have been
existing right from the day of birth of the Constitution in the year 1949 and still remains undisturbed.
The procedure in India is largely based on the procedure in England with certain rigid modifications.
The provision of removal was first brought into action in 1991.

It was alleged that Justice V. Ramaswami, a Supreme Court Judge had committed certain financial
misdeeds while he was the Chief Justice of Punjab and Haryana High court. The Lok Sabha admitted
a motion and thereafter constituted an Inquiry Committee under the Judges Enquiry Act, 1968
comprising Justice P.B Sawant (Supreme Court), Chief Justice Desai(Bombay High Court) and Mr.
Chinappa Reddy(Retd. Supreme Court Judge as a distinguished Jurist). However before the
submission of report by the Committee, the Lok Sabha was dissolved. Immediately the Apex court
was called upon to consider whether dissolution of the Lok sabha put an end to the motion for
removal of a Judge37. The Court was of the opinion such dissolution does not affect the process in
any way. Firstly because the Inquiry Committee having a separate identity was not a Parliamentary
Committee and the recording of investigation proceedings by it is not a parliamentary proceeding and
secondly, the Speaker under Judges(Inquiry) Act, 1986 was a statutory authority. Therefore the
Parliament comes into picture only when the motion for removal is accepted after the report is
submitted.

After this, the process of inquiry was restarted. Subsequently, a writ petition 38 was filed by the wife
of Justice Ramaswami claiming a copy of the report of the Inquiry Committee before it being
submitted to the speaker so that the Judge could take recourse to Judicial Review in case he was
found guilty. The court laid down its observations:

 In case the Judge is found “not guilty” by the Inquiry Committee, the matter stops there
and the Parliament is not required to take up the motion of removal for consideration and

37 Sub-Committee of Judicial Accountability v Union of India AIR 1992 SC 320

38 Sarojini Ramaswami v. Union of India AIR 1992 SC 2219

17
 even there is no scope of ‘judicial review’ in such a case. Therefore there is no need for
furnishing a copy of the report to the Judge.

 Where the Judge is found ‘guilty’ by the Committee, the parliament may decide after
considering the matter not to adopt the motion for removing the Judge. The Speaker or
Chairman should also be furnished a copy of Report to the concerned Judge to comment
on the finding while causing it to be laid before the House. Regarding application of
‘Judicial review’, the Court observed that if the Parliament does not adopt the motion for
removal of the Judge, the matter should end there. However the guilt finding of the Inquiry
Committee can be brought under judicial review only on limited grounds pertaining only to
the legality but that can happen only at a stage after ‘the making of the order of removal
by the President in case the Parliament adopts the motion by the requisite majority’.
“Resort to judicial review by the concerned Judge between the time of conclusion of the
inquiry by the Committee and making of the order of removal by the President would be
premature and is unwarranted in the Constitutional scheme”39.

 The Inquiry Committee cannot be treated as a ‘tribunal’ because the power exercised by it
is in the nature of recommendation and is not final and conclusive

Thereafter, the Inquiry Committee came up with its report holding the Supreme Court judge guilty of
wilful and gross misuse of office and moral turpitude by using public funds for private gain in several
ways. The acts of the Judge constitute ‘misbehaviour’. However, the motion was lost in the House
due to want of adequate votes due to absence of certain members. The Apex Court finally was
approached by filing of a writ petition to declare whether the procedure in the Lok Sabha is regarded
to constitute ‘supported by majority’ and the court declared that President cannot remove a
Supreme Court Judge except in accordance with the procedure laid down in Art. 124(1) and mere
absence from casting vote cannot be construed as deemed support for the motion40.

The second time it was the proceedings issued in the case of the Calcutta High Court judge, Justice
Soumitra Sen. He was alleged of financial misconduct committed while he was a practicing Advocate
first when he was appointed as a receiver41 and second when he was appointed as Special Officer of

39 ibid 2244

40 Lily Thomas v. Speaker (1993) 4 SCC 234

41 Civil Suit No. 8 of 1983, filed by Steel Authority of India Limited against Shipping Corporation
of India Limited and Ors
18
the Court42. The guilt when confirmed by a Single Judge of the Calcutta High Court, The Chief
Justice of Calcutta High Court asked the Chief Justice of India to take up the matter. The CJI formed
a committee to conduct a deeper probe into the matter. The Committee finally confirmed such
misappropriation of money and advised that immediately removal proceedings be initiated against
Justice Sen. On being requested to resign or seek voluntary retirement to which he refused and finally
the removal process was initiated against him. Finally after validation of guilt by the Inquiry
Committee, while the Parliament was proceeding with the motion for impeaching Justice Soumitra
Sen for “misconduct” and “misappropriation of funds” in the capacity of a court receiver, the last
minute resignation of Justice Sen rendered impeachment proceedings ‘infructuous’43.

Next it was in September 2009, Chennai-based Forum for Judicial Accountability accused Justice
P.D Dinakaran of several charges. The Bar Council of India endorsed the charges and escalated the
matter to Law Minister, Prime Minister and the President of India. Two reports from the collector of
Tiruvallur District in Tamil Nadu confirmed the charges of land grabbing and acquisition of land
beyond ceiling limits by Dinakaran. This forced the collegium to drop Dinakaran’s elevation. Over
75 members of Parliament moved for Dinakaran’s removal and Rajya Sabha admitted it. In January
2010 the three-member panel constituted by Rajya Sabha Chairman H. Ansari comprising Justice
Aftab Alam, Chief Justice JS Khehar and Advocate P.P Rao to examine the 12 charges framed
against Dinakaran confirmed the charges. When Karnataka High Court did not allot work to him
pending the inquiry against him, the Chief Justice of India shifted him to Sikkim High Court. Finally,
Dinakaran resigned in July 2011. But within days, on August 4, he tried to withdraw the resignation,
but fortunately the government refused to permit the withdrawal44.

The mechanism of Judges Removal in India is absolutely impractical and this contention is supported
by the view that till date not a single Judge has been removed successfully. The Judges before being
removed have chosen resignation as a respectable alternative. The idea of punishing a Judge by
removing him is a misnomer. Even before being subject to such fabricated punishment, the Judge has
the option of resigning from the office without actually renouncing his post-retirement benefits in

42 an Appeal arising out of C.P. No. 226 of 1996

43 ‘Judges Impeachment Procedure and Justice Soumitra Sen’s Case’ December11, 2011 available at
https://indiancurrentaffairs.wordpress.com/2011/12/11/judges-impeachment-procedure-and-justice-soumitra-sens-case/
accessed 3.10.2015

44 S. Gurumurthy, ‘Judicial Transparency: Dinakaran’s case vs Manjunath’s’ (The New Indian Express 19th October
2014) available at http://www.newindianexpress.com/columns/s_gurumurthy/Judicial-Transparency-Dinakarans-case-
Vs-Manjunaths/2014/10/19/article2484300.ece accessed 3.10.2015

19
similar terms with that of any other Judge. Time and again when the Judges have been proceeded
against, it was either the want of adequate clarity in the law or the system or the political
considerations that have created an obstacle. Neither the word ‘proved misbehaviour’ nor
‘incapacity’ has been defined anywhere. No parameter has been defined as to what acts constitute
‘misbehaviour’ or proved incapacity.

In 1997, the Supreme Court adopted resolutions on (a) Restatement of Values of Judicial Life, and
(b) In- house procedure within the judiciary. A concept paper on a National Judicial Commission was
prepared by the National Advisory Council in 2005. The Judges (Inquiry) Bill, 2005 was outlined by
the government and examined by the Law Commission in its 195th Report. The Judges (Inquiry) Bill,
2006 was brought about incorporating almost all the Law Commission’s recommendations, and
sought to establish a National Judicial Council (NJC). That Bill has however lapsed now45.
Subsequently in 2010, the Judicial Standard and Accountability Bill was prepared but the same has
not attained the status of a law. The Bill seeks to replace the Judges (Inquiry) Act of 1968. The Bill of
2010 among other requirements requires a Judge to declare his and his wife and children’s assets and
liabilities, provides that any person can make a complaint against a Judge and frivolous complaints
will be penalised, complaints and inquiries shall be kept confidential, three committees are proposed
to be established which include the National Judicial Oversight Committee, the Complaints Scrutiny
Panel and Investigation Committee, minor measures can be imposed by the Oversight Committee and
the Judge would have a right of appeal to the Supreme Court against the order of removal. Certain
provisions of this Bill have been strongly protested against due to the Bill’s direct attack on Judicial
Independence.

20
45 Ibid

21
 CHAPTER V:

COMPARING THE TWO PROCESSES

After exploring the legal provisions and the practical scenario with respect to removal of Judges in
Pakistan and India the following grounds of comparison seem to be apparent:

1. Governmental Set-up: Though the visionaries of the two countries had foreseen the evolution
of a fully functional democracy, there seems to a considerable deviance from it. Though India
has retained what is called a democratic form of Government in Pakistan, democracy has been
nothing but a mere mockery in itself. People in Pakistan seem destined to remain chained
prisoners initially in the hands of the British and later under the military regime. It was
nothing but un-proclaimed dictatorship. In India the certain of adherence to democratic
principles when compared to Pakistan is much higher.

2. Attitude towards the Judiciary: In India both Constitutionally and practically, the integrity of
the Judiciary has been held high in comparison to the situation in Pakistan where though
Constitutionally Judicial Independence is given due weightage, in reality the Judiciary was
considered to be a body whose function was to validate the actions of the Dictators blindly.
Those going against such a rule were nothing but unwanted weeds and were supposed to be
removed to ease the military rule. The three Constitutions coupled with the effect of
Provisional Constitutional Orders reflect the extent of lawlessness in the system.

3. Procedure of Removing Judges: In Pakistan the prevailing Constitution of 1973 itself

inclines towards dictatorship when it gives the power of removing the Judges to the President.
Till recently, Supreme Judicial Council could only inquire into the matter of capacity or
behavior of a judge based on the references made by the President of Pakistan but after the
18th Constitutional Amendment in 2004, power to inquire on its own motion was given to the
Council. The provision impliedly excludes the Legislature from interfering into the question
of removal. The Provision in the 1973 Constitution is similar to that of the process of
removing the Judges under the Constitution of 1962 even in which the Legislative
participation was done away with. The idea behind excluding the Legislature from the
removal process was that the Legislatures were not yet mature and competent enough to
decide matters of removal of Judges46.

46 Khan(n 9) 148, 149

22
 The process in India involves filing of a motion, formation of a judicial inquiry committee
and submission of its report and the making of rules by the Joint Committee, followed by
approval of the motion by the majority and finally the confirmation by the President.

The interesting fact is that in Pakistan the Judges are removed even when they are not guilty
whereas in India Judges are not removed even when they are guilty. In India the removal process
is complex when compared to Pakistan. In Pakistan the power of removal is primarily in the
hands of the executive and in India though the decision is Parliamentary the Executive
interference is minimum because the President is the last one to confirm the removal. Regarding
the procedure being a Parliamentary procedure, much debate has arisen after the Ramaswamy
Case.

4. Commencement: In Pakistan, the arbitrary process of removing judges began strictly from the
time of General Zia the footsteps of whom were followed by his successor General Musharraf
while in India it was first in 1991 that the removal mechanism provided under the 1949
constitution was resorted to. But till date there has not been any complete process of
constitutional removal of judges in India. The judges who were proceeded against either resigned
or the motion could not be passed by the majority in the Houses.

5. Judicial Stand: The judiciary in India has been a very powerful organ that has suited to itself
unconditional power even in spheres where such powers have not been expressly conferred. In
Pakistan, historical facts prove the inefficiency and helplessness of the judicial organ which had
as a matter of practice submitted itself before the executive whim. The Judiciary in Pakistan has
displayed considerable progress after the massive uproar and revolution after the landmark
incident of conspiracy against the Chief Justice of Pakistan in 2007.

6. Power of the President: In both the countries the authority to remove a judge has been given to
the President. In Pakistan, the removal process starts with the president and ends with the
president whereas in India the process starts with the Parliament and ends with the President.
The process in India is primarily a political one and lays immense emphasis on the parliamentary
decision though the Presidential assent is a constitutional formality. The comparison lies in the
fact that in India the Presidential power is a mere conventionalism and in Pakistan the actual
power lies with the President only.

7. Powers of Investigation: In Pakistan the Supreme Judicial Council has been entrusted with the
power of inquiry on the grounds of removal of a Judge on its own motion or after it has been
directed to do so whereas in India there is no such body yet though there has been a proposal for

23
 the establishment of a National Judicial Council under the Judicial Standards and Accountability
Bill of 2010. In India though there is a provision for a temporary Inquiry Committee which
makes inquiry only when formed for that purpose by the Speaker or Chairman of Rajya Sabha.

CONCLUSION

At this point of discussion, it can be asserted that owing to the office and respect held by the
Judiciary, the nature of function it is meant to discharge and the faith rested upon it by common man,
the removal of a Judge has a direct bearing on the independence of the Judiciary and ultimately the
integrity of a nation and the power to remove cannot be impulsively exercised. Removal of a Judge
mandates a transparent investigation apparatus and should be exercised only when the continuance of
office of an erring Judge can actually be prejudicial to the interest of Justice. Logically a Judge
whose guilt has been proved beyond reasonable doubt must be subject to a harsher punishment rather
than a mere removal for betraying the faith that the people had reposed upon him and given him the
position to Judge their causes. The mechanisms in both the Countries are faulty and subject to high
criticism what to speak of success. Major impediments in the way of a successful and constitutionally
valid removal process include default in political judgment, excessive judicial intervention, over
powered military rule, lack of clarity in the grounds of removal, lack of proper investigating
mechanism, want of separation between issues of minor misconduct and major criminal charges and
most importantly the fact that the harshest punishment in both the countries is just removal and not
beyond. The countries have been plagued give instances of corrupt Judges but the faulty mechanism
has betrayed the successful removal. Therefore it is already high time that adequate laws are framed
that cater to both the aspects- upholding judicial independence and dethroning of corrupt and unfit
Judges.

24
BIBLIOGRAPHY

BOOKS:

1. Reza Nasr, Islamic Leviathan: Islam and the making of State Power (OUP 2001)

2. Khan Hamid, Constitutional and Political History of Pakistan (2nd edn OUP 2001)

3. Russel and David Brien(eds), Judicial Independence in the Age of Democracy: Critical
Perspectives from Around The World( University of Virginia Press 2001)

4. Jain Subhash, Removal of A Judge of The Supreme Court/High Court And The Powers of The
Parliament, The Constitution of India: Select Issues and Perceptions ( Taxman 2000) 87

5. Jain, Indian Constitutional Law( 7th edn, Lexis Nexis 2015)

JOURNALS

1. Kanaujia and Jain, 'Dawn of a new democracy in Pakistan: Legal and Political Implications
of Nadeem Ahmed v Federation of Pakistan' [2009] II(4) NUJS Law Review 713

2. Huq, ‘Mechanisms of Political Capture in Pakistan’s Superior Courts’[2003-2004] 10

Yearbook of Islamic and Middle Eastern Law 35

3. Amanullah Shah, ‘Impact of Army on Independence of the Judiciary in Pakistan’ (Gomal Law
review 2009) available at www.gu.edu.pk/New/GUJR/PDF/Dec-2009/7 Amanullah Shah-
Impact of Army on the Judiciary.pdf accessed on 21.09.2015

4. Cortan and Lau(eds), Yearbook of Middle Eastern law, Volume 10(2003-2004) (Brill
Academic Publishers )

5. Shah, Khan and Mahsood, “Superior Judges’ Commitment To Judicial Independence In

Pakistan” (Gomal University Journal of Research, 27(2). December, 2011) 56

LEGISLATIONS

1. Government of India Act, 1935

2. Indian Independence Act, 1947

3. Constitution of India ,1949

4. Constitution of Pakistan, 1956

5. Constitution of Pakistan, 1962

6. Judges(Inquiry) Act, 1968

7. Constitution of Pakistan, 1973

25