Judicial Removal in India

Judicial Removal in India: Understanding the Legal and Procedural Challenges

Source Attribution: This article provides an analysis of the constitutional and legal frameworks governing judicial removal, based on the commentary “Judicial removal — tough law with a loophole” by P.D.T. Achary, former Secretary General of the Lok Sabha:
Current Trigger: In December 2025, 107 Members of Parliament from the INDIA bloc submitted a notice for the removal of Justice G.R. Swaminathan of the Madras High Court.
Nature of Charges: The motion includes 13 allegations, notably asserting that the judge acted against secular constitutional principles and showed bias toward specific legal circles.

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Removal vs. Impeachment: While popularly called “impeachment,” the Indian Constitution strictly uses the term “removal” for judges (Articles 124, 217, and 218). The term “impeachment” is constitutionally reserved only for the President (Article 61).
Shared Framework: The procedure for removing a Supreme Court judge, as detailed in Article 124, is identical to the procedure applied to High Court judges.
Legal Regulation: Article 124(5) empowers Parliament to enact laws to regulate the investigation of charges, leading to the **Judges (Inquiry) Act, 1968**.

Defining Misbehaviour: A judge can be removed only on the grounds of “proved misbehaviour” or “incapacity.” While the Constitution does not define these terms, the Supreme Court has clarified them in various rulings.
Judicial Interpretations: Case law defines misbehaviour as conduct bringing dishonour to the judiciary, corruption, lack of integrity, or wilful abuse of judicial office.
Exacting Standards: In *K. Veeraswami vs Union of India (1991)*, the Court stated that society’s demand for honesty in a judge is absolute, and any deviation is a betrayal of public trust.

Member Thresholds: Under the Judges (Inquiry) Act, a notice of motion must be signed by at least **100 members** if submitted in the Lok Sabha (to the Speaker) or **50 members** in the Rajya Sabha (to the Chairman).
Presentation of Address: The primary goal of the motion is to present an “address” to the President of India praying for the judge’s removal.
Initial Submission: The motion acts as the formal start of a high-stakes constitutional process intended to protect judicial independence while ensuring accountability.

Admissibility Power: The Speaker or Chairman has the statutory authority to either admit or disallow the motion at the very beginning.
Consultative Discretion: The Presiding Officer may consider available materials and consult with relevant persons before deciding whether to allow the motion to proceed.
Lapsing of Motion: If the Speaker or Chairman refuses to admit the motion, the entire process terminates immediately, and the motion is considered to have lapsed.

Administrative vs. Statutory: When deciding on a removal motion, the Speaker/Chairman does not act as the Presiding Officer of the House but as a “statutory authority” under the 1968 Act.
Judicial Review: Because this is a statutory act rather than a purely legislative proceeding, the decision to disallow a motion can potentially be challenged in a court of law.
Risk of Arbitrariness: Critics argue that without clearly defined conditions for admissibility in the Act, the decision to reject a motion signed by 100 MPs could be perceived as arbitrary.

Committee Formation: Once a motion is admitted, the Speaker/Chairman appoints a three-member committee to investigate the charges thoroughly.
Committee Composition: The panel consists of a Supreme Court judge, a High Court Chief Justice, and a distinguished jurist.
Fact-Finding: This committee performs a detailed, judicial-grade investigation to determine if the “misbehaviour” is indeed “proved.”

Threshold Rejection: A significant flaw in the law is that a motion signed by 100+ MPs can be killed at the threshold by a single individual (the Speaker/Chairman) without assigning reasons.
Constitutional Misalignment: Article 124(5) focuses on regulating the “investigation” and “presentation of address,” suggesting that the proof of misbehaviour should be the result of a committee, not a preliminary hurdle by the Speaker.
Frustrated Intent: This loophole makes the constitutional provision for removal infructuous if the Presiding Officer chooses to block the process before it even begins.

Special Majority: If the investigation committee finds the judge guilty, the motion is taken up for debate and voting in both Houses of Parliament.
Stringent Thresholds: To pass, the motion requires a majority of the **total membership** of each House AND a **two-thirds majority** of those present and voting.
Final Order: Only after both Houses pass the address by this special majority does the President issue an order for the judge’s removal.

Governmental Whims: There is a concern that if the government of the day does not favor a removal, the Speaker (who usually belongs to the ruling party) might disallow the motion at the threshold.
Protecting Independence: The “toughness” of the law was designed to prevent the judiciary from being intimidated by the legislature, but it may have created an unintended shield for “unworthy” judges.
Call for Reform: Experts suggest revisiting the provision that allows the Speaker/Chairman to disallow the motion at the threshold to ensure the constitutional accountability mechanism remains functional.