Section 35 of the Mediation Act 2023: Removal of a Council Member

Section 35 specifies the grounds on which the Central Government may remove a Member of the Mediation Council of India and requires that the Member be informed of the charges and given an opportunity of being heard before removal.

Section 35 - Grounds for removal

Undischarged insolvency

Section 35(a) permits removal where a Member is an undischarged insolvent. In this context, the expression refers to a person who has been adjudged insolvent and has not yet obtained the legal discharge that releases the person from that status under the applicable insolvency law.

Paid employment without permission

Section 35(b) applies where a Member engages in paid employment during the term of office without permission of the Central Government. The provision addresses outside paid employment undertaken while holding office and expressly makes Central Government permission relevant.

Conviction involving moral turpitude

Under Section 35(c), removal may follow where the Member has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude. The statutory text therefore requires both a conviction and the specified opinion of the Central Government concerning the character of the offence.

Financial or other interest affecting functions

Section 35(d) addresses conflicts capable of prejudicing the Member's statutory functions. It applies where the Member has acquired such financial or other interest as is likely to affect those functions prejudicially.

Abuse of position and public interest

Section 35(e) permits removal where a Member has abused the position in such a manner that continuance in office would be prejudicial to the public interest. The statutory ground therefore links the alleged abuse of office to its effect on the public interest.

Physical or mental incapacity

Section 35(f) provides a removal ground where a Member has become physically or mentally incapable of acting as a Member. The provision concerns capacity to perform the statutory role and does not itself prescribe a separate medical procedure in the text of Section 35.

Mandatory opportunity of hearing

The proviso to Section 35 creates an important procedural safeguard. Where removal is proposed on any of the statutory grounds, the Member must be informed of the charges and must be given an opportunity of being heard in respect of those charges before removal.

This requirement reflects the statutory principle that the Member must have an opportunity to respond to the case for removal rather than removal being based on undisclosed charges.

Removal compared with resignation

Removal under Section 35 is different from resignation under Section 34. Resignation is initiated by the Member through written notice to the Central Government, whereas Section 35 empowers the Central Government to remove a Member when one or more statutory grounds are established, subject to the hearing safeguard.

Commencement of Section 35

Section 35 is in force from 9 October 2023. Notification S.O. 4384(E), dated 9 October 2023, brought Sections 31 to 38 of the Mediation Act, 2023 into force on that date.

Key legal points

• The power of removal under Section 35 is vested in the Central Government.
• The section specifies six statutory grounds for removal.
• Unauthorised paid employment during the Member's term is an express ground.
• Conflict-producing financial or other interests and abuse of position are separately addressed.
• Physical or mental incapacity to act as a Member is an express statutory ground.
• A proposed removal requires disclosure of the charges and an opportunity of hearing.
• Section 35 has been in force since 9 October 2023.

Related provisions

Section 35 should be read with Section 31 on establishment of the Council, Section 32 on composition, Section 33 on vacancies, Section 34 on resignation and Section 36 on experts and committees.