LUCKNOW: A five-judge collegium of the Supreme Court led by Chief Justice of India Sanjiv Khanna recently summoned a sitting judge of the Allahabad High Court and reprimanded him for a communally loaded speech he delivered at a public event hosted by the Vishva Hindu Parishad (VHP).
Justice Shekhar Kumar Yadav got an earful when he sought to present his side of the story on December 17. They said they were appalled that he failed to maintain the dignity of the constitutional post he was holding while speaking from a public platform.
The controversial speech was delivered on December 8 at a provincial convention of the legal cell and the High Court unit of the VHP in Prayagraj.
In his address, Justice Yadav described the Uniform Civil Code (UCC) as a necessary measure to end ‘unequal legal systems’ in the country. He also allegedly made some adverse comments on the Muslim community by berating the practice of animal sacrifice during religious festivals. It triggered widespread protests from religious and political circles besides demands for his impeachment.
“The UCC’s purpose is to promote social harmony, gender equality, and secularism by eliminating unequal legal systems based on different religions and communities,” Justice Yadav had said, adding: “The aim is to replace various personal laws that currently govern personal matters within different religious communities, ensuring uniformity of laws not only among communities but also within a community.” What kicked up a bigger storm was his assertion that the laws of the land need to reflect the majority’s interests.
Proactive SC
The Supreme Court took suo motu cognizance of his speech after media reports led to a national uproar. From the administrative side, it sought details from the Allahabad High Court. Separately, the collegium comprising the CJI and justices Bhushan Ramkrishna Gavai, Surya Kant, Hrishikesh Roy and A S Oka summoned him to give him an opportunity to defend himself in keeping with the principle of natural justice and explore a closure.
The collegium berated him for being casual in his approach while delivering the speech and the avoidable statements given the sensitive nature of the subject and its possible repercussions. It told Justice Yadav to always remember that the demeanour of members of the higher judiciary is forever under scrutiny.
Justice Yadav’s version
While Justice Yadav blamed the media for selectively quoting him to whip up a controversy, the collegium brushed aside the flimsy excuse. It minced no words in telling him that any statement made by a sitting HC judge inside the courtroom or outside it should always be in sync with the dignity of the high judicial offices and not dent the people’s faith in the objectivity and propriety of the judiciary.
Who is he?
Justice Yadav is a 1988-batch law graduate from the Allahabad University. Two years after his graduation, he enrolled as an advocate and started practising civil and constitutional laws. He had also served as additional government advocate and standing counsel for Uttar Pradesh. He was the senior counsel of the Central government and Railways before taking oath as an additional judge of the Allahabad High Court on December 12, 2019. Justice Yadav was promoted as permanent judge on March 26, 2021. His tenure ends on April 15, 2026. His appointment as a High Court judge reportedly came despite adverse opinion to the collegium from the then Supreme Court judge D Y Chandrachud.
This is not the first time Justice Yadav is in the news for the wrong reasons. In fact, he seems to have a penchant for kicking up controversies. In September 2021, he had made some observations on cows while hearing a case on their slaughter. “Cows should be declared the national animal, and cow protection should be a fundamental right of Hindus because when the culture and faith of the country are hurt, the country becomes weak,” he had said creating a flutter across the political and judicial spectra.
Political outcry
Justice Yadav’s address on the UCC sparked widespread condemnation with Opposition leaders calling them divisive and unconstitutional. Parties like the CPI(M), Asaduddin Owaisi-led AIMIM, Congress, Samajwadi Party (SP) and others tore into him for his communal comments.
As many as 55 Opposition Rajya Sabha MPs signed a parliamentary notice for a motion to remove him from office (See box). Videos of his speech circulated widely on social media, amplifying the controversy. Lawmakers led by Samajwadi Party-supported MP Kapil Sibal, submitted the notice for impeachment to the Rajya Sabha Secretary General on December 13.
Earlier that week, the Campaign for Judicial Accountability and Reforms, an NGO led by lawyer and activist Prashant Bhushan, wrote to Chief Justice Khanna, seeking an in-house inquiry into Justice Yadav’s conduct. Bhushan argued that the judge’s remarks were discriminatory and targeted the Muslim community.
VHP’s stand
The VHP, which organised the event, claimed the controversy was unnecessary. VHP chief Alok Kumar, in his pushback, emphasised that there was nothing wrong in a sitting judge speaking at the organisation’s event, adding that such awareness meetings addressed by subject matter experts would continue to be organised.
Kumar, who is an advocate by training and the VHP’s international president, said: “We had invited the judge as a faculty to speak on the Uniform Civil Code. We work among former judges, invite them to work for the VHP, for Hindutva. But as far as sitting judges are concerned, we do not expect them or invite them to work for the VHP. Sometimes on topics like the UCC, we do invite them to enlighten us.”
Claiming that there was nothing objectionable in the judge’s speech, Kumar said: “So, on the issue of UCC, the HC judge said at the meeting it was a Constitutional mandate under the Directive Principles of State Policy. He said the directives ought to be adhered to by elected representatives. He referred to various SC judgments that directed the governments of the day to evolve a UCC, adding such a legislation would be good for complete integration of the society and the unity of India.”
The VHP chief said he was not aware of the exact nature of the comments on “majority” attributed to the HC judge, but “I would not be apologetic” even if Justice Yadav had said so. “I would not be able to authenticate those views of his, but then the sentiments and emotions of the majority society deserve as much respect as the sensitivities of the minority,” Kumar said.
He added that “Islam in India is technically a minority, but considering their good numbers, they are a second majority in India. So, unless we develop mutual respect, if not respect, then mutual tolerance for others’ sensitivities, there cannot be any integration... If a majority holds a particular view, then others should not make an issue of it.”
Following the controversy, Uttar Pradesh Chief Minister Yogi Adityanath also came out in support of Justice Yadav, saying the judge cannot be faulted for merely expressing his opinion. He said “whoever speaks the truth” is threatened by the Opposition with an impeachment motion.
Procedure for impeachment
Impeachment is a lengthy parliamentary process to examine the alleged misconduct or incapacity by a public servant before the person is sacked. The legal framework for impeachment of a Supreme Court or High Court judge is provided under Articles 124 and 217 of the Constitution. A detailed procedure for removal is specified under the Judges Inquiry Act 1968. Articles 124(4) and (5) provide that a Supreme Court judge can be removed from office only through impeachment by Parliament on proven grounds of misbehaviour or incapacity. The impeachment resolution shall be passed by a ‘special majority’ of two-third after a thorough inquiry into the allegations against the judge.
Clause (4) of Article 124 of the Constitution provides 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 two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.” Clause (5) of the same Article says, “Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).”
Article 217(1) (b) provides for a similar procedure and grounds for impeachment as under Article 124. It states: “A Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court.”
‘Proven Incapacity’ and ‘Misconduct’
Misbehaviour and incapacity are the only two grounds for impeachment of a judge in the higher judiciary. They have been interpreted by the Supreme Court as follows:
Incapacity: It means when the judge is unable to discharge his duties due to physical or mental challenges. Incapacity means “physical or mental incapacity which is or is likely to be of a permanent character”.
Misbehaviour: Misconduct would amount to any such behaviour which undermines the integrity and independence of a judge or the judiciary. Such behaviour would include corruption, sexual harassment, financial misconduct etc.
Wilful abuse of judicial office, wilful misconduct in the office, corruption, lack of integrity, or any other offence involving moral turpitude is categorised as misbehaviour. Persistent failure to perform the judicial duties of the judge or wilful abuse of the office with evil intent and bad faith also falls in the same category. While the Constitution does not define the above terms, the Judges (Inquiry) Bill, 2006 defined misbehaviour as wilful or persistent conduct that brings dishonour or disrepute to the judiciary; or wilful or persistent failure to perform the duties of a judge; or willful abuse of judicial office, corruption, lack of integrity; or committing an offence involving moral turpitude. It includes violation of the code of conduct of the high office.
Steps for impeaching a judge
1.Initiating motion for impeachment
The motion can be introduced in either House of the Parliament. If moved in the Lok Sabha, it should be signed by at least 100 MPs. For the Upper House, at least 50 members need to sign it.
2.Presentation of motion
After submission of the signed motion, the presiding officer takes it up for consideration. The motion must be based on clear allegations of misbehaviour or incapacity and specify in detail the grounds for impeachment.
3.Three-member inquiry committee
If the motion is admitted, it is referred to a committee comprising three members, including a Supreme Court judge, Chief Justice of a High Court and one distinguished jurist who should be acknowledged as such by the Speaker/Chairman, for conducting a detailed inquiry against the alleged misconduct or incapacity of the judge, including a thorough examination of evidence and witnesses. The committee shall frame definite charges against the judge on the basis of which the investigation is proposed to be held and communicate it to him. The judge shall be given a reasonable opportunity to present a written statement of defence within a specified timeframe. If the inquiry committee finds the charges valid, it will generate a report for parliamentary consideration.
4.Medical board
If it is alleged that the judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity, the committee may arrange for his examination by a medical board and the judge shall submit himself to such medical examination.
5.Amending charges
The committee may, after considering the written statement of the judge and the medical report, if any, amend the charges framed against him, in which case, the judge shall be given a reasonable opportunity of presenting a fresh written statement of defence.
6.Parliamentary debate and voting
The inquiry report, after submission in both Houses of Parliament, is subjected to discussion and voting. The resolution has to be passed by a special majority: (a) majority of the total members of each House; and (b) 2/3rds majority of the members present and voting in each House. The judge subjected to impeachment is also given a fair chance to represent his case before Parliament.
7.Presidential order for judge’s dismissal
If the impeachment resolution is passed in both Houses of Parliament with special majority, the judge concerned is officially sacked through a formal order passed by the President of India.
Past experiences
The impeachment notice against Justice Justice Shekhar Kumar Yadav, submitted in the Rajya Sabha, awaits Chairman Jagdeep Dhankhar’s consideration. The motion cannot move forward without a green light from the Chairman, who has the authority to accept or reject it. Dhankhar himself faced an impeachment notice against him from the Congress-led Opposition, which accused him of partisanship in the House. The motion was rejected by Rajya Sabha Deputy Chairman Harivansh, who ruled that it was severely flawed. Would the impeachment bid against Justice Yadav take the same trajectory? Or if allowed, what are the chances of its making the cut? Past experiences with impeaching judges may offer some clues. Till date, impeachment proceedings were formally initiated against a Supreme Court or High Court Judge only four times. Of these, one attempt succeeded in the Rajya Sabha but the judge resigned before the Lok Sabha could vote on it.
JUSTICE V RAMASWAMI
In 1993, Justice V Ramaswami of the Supreme Court faced impeachment motion for alleged gross misuse of office. The charges included misuse of public funds for his personal ‘extravagance’. However, the motion introduced in the Lok Sabha failed to secure two-thirds majority as only 196 Opposition MPs then voted in favour of impeaching.
JUSTICE SOUMITRA SEN
The next impeachment bid came in 2011, when a motion was moved in the Rajya Sabha against Justice Soumitra Sen of the Calcutta High Court. He was accused of misappropriation of funds he had received in his capacity as a High Court-appointed Receiver in 1984 and also suppressing information about the receipt of huge sums of money. Justice Sen resigned after the Rajya Sabha passed the impeachment motion with an overwhelming majority of 189 votes seeking his removal and just 17 against it. He was the first judge to have been impeached by the Upper House for misconduct.
JUSTICE J P PARDIWALA
Justice Jamshed Burjor Pardiwala, who is now a Supreme Court judge, also had a brush with impeachment but narrowly escaped facing the motion. When he was serving as a judge of the Gujarat High Court in 2015, he made some comments against the reservation system in general while hearing a petition filed by Hardik Patel who was then spearheading the Patedar Andolan Samiti. Justice Pardiwala’s observation that reservations and corruption are the two things that stop the country from progressing kicked up a huge controversy. As many as 58 MPs initiated the impeachment motion in the Rajya Sabha. Following a request from the state government, Justice Pardiwala expunged those remarks from his judgment and the matter was put to rest.
JUSTICE C V NAGARJUNA REDDY
In 2017, the Rajya Sabha witnessed an impeachment attempt by 61 MPs against Justice C V Nagarjuna Reddy of the Andhra Pradesh/Telangana High Court on various charges. The accusations against him included misbehaving with a Dalit judge, disproportionate income and non-disclosure of assets and liabilities, and misconduct as an advocate. However, the motion failed twice as signatories to the petition withdrew their support. In the first attempt, 19 out of the 61 signatories withdrew support. Nine out of 54 signatories backed out in the second attempt.
Other impeachment bids
Two other judges fell short of facing formal impeachment -- Chief Justice of Sikkim High Court P D Dinakaran in 2011 and Chief Justice of India Dipak Misra in 2018. While Justice Dinakaran -- who faced allegations of corruption, land grab and abuse of judicial office -- resigned before impeachment could be initiated against him, the motion against CJI Dipak Misra — who faced charges of misconduct in relation to a medical college bribery case, and abuse of powers as the master of roster -- was rejected by the then R ajya Sabha Chairman Venkaiah Naidu.
Charges in the impeachment notice
The notice alleged that Justice Yadav prima facie engaged in hate speech and incitement to trigger communal disharmony in violation of the Constitution of India. It also charged that the judge prima facie showed that he targeted minorities and displayed bias and prejudice against them.
It said he entered into public debate or expressed views in public on political matters relating to a UCC, in violation of the Restatement of Values of Judicial Life, 1997. The notice claimed that the public remarks of the judge were inflammatory and prejudiced and directly targeted minority communities. “Justice Yadav’s actions contravene the directive principles enshrined under Article 51A(e) of the Constitution of India, which mandate promoting harmony and renouncing practices derogatory to the dignity of individuals,” the impeachment notice said.
“The statements, which have been widely documented and reported, encouraged animosity and division among different religious and communal groups, contravening the secular ethos of the Constitution,” the 55 signatories added.
