Background
Articles 124(2)(a) (Supreme Court judges) and 217(1)(a) (High Court judges) allow judges to resign by writing to the President.
Unlike MPs and MLAs, whose resignations require acceptance by the Speaker/Chairman under Articles 101(3)(b) and 190(3)(b), judges' resignations become effective automatically.
In Union of India v. Gopal Chandra Misra (1978), the Supreme Court held that a judge's resignation takes effect ex proprio vigore (by its own force), without requiring acceptance.
The Judges (Inquiry) Act, 1968 provides the procedure for investigating allegations of misbehaviour and removal of judges by Parliament.
Features
Constitutional Provision for Resignation
Judges can resign voluntarily by submitting a written resignation to the President.
No acceptance by the President or any authority is required.
Purpose
Protects judicial independence by preventing the Executive from forcing judges to remain in office.
Judicial Accountability Mechanism
Parliament may initiate removal proceedings for proved misbehaviour or incapacity.
A three-member inquiry committee investigates allegations.
The committee's report is laid before Parliament before any removal motion.
Effect of Resignation
Once a judge resigns, removal proceedings become infructuous because the individual no longer holds judicial office.
However, the inquiry report must still be tabled under the Judges (Inquiry) Act.
Challenges
Accountability Gap: Judges can resign before Parliament considers the removal motion, effectively ending impeachment proceedings.
No Parliamentary Debate: Section 6 of the Judges (Inquiry) Act links discussion of the inquiry report with the removal motion, making debate impossible after resignation.
Administrative Lapses: Justice Varma reportedly continued to be listed as a sitting judge on official records despite his resignation.
Public Confidence: Inability to complete accountability proceedings may weaken public trust in the judiciary.
Constitutional Silence: The Constitution does not address resignation during pending removal proceedings.
Way Forward
Constitutional Amendment: Make a judge's resignation subject to acceptance when removal proceedings are pending.
Independent Acceptance Authority: Vest the power to accept such resignations in the Chief Justice of India (CJI) rather than the President to preserve judicial independence.
Amend the Judges (Inquiry) Act, 1968: Allow Parliament to debate inquiry reports even if the judge has resigned.
Timely Administrative Updates: Ensure immediate correction of judicial records after resignation.
Strengthen Transparency: Public disclosure of inquiry findings can reinforce judicial accountability while maintaining institutional credibility.
Conclusion
The constitutional provision for enabling resignation without acceptance has been framed in a way to protect judicial independence; however, the Justice Yashwant Varma case highlights the manner in which such an attempt may actually end up compromising judicial accountability in removing justices. It must be acknowledged that while rectifying the procedural issue is important, there is a need for constitutional and statutory reforms in this regard.