Source: TH
Subject: Judiciary – Polity
Context: 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, citing alleged bias and acting against secular principles.
About Judicial Removal — Tough Law with a Loophole:
What it is?
- Judicial removal is the constitutional process of ousting a judge of the Supreme Court or High Court from office before their tenure ends. While commonly called impeachment, the Constitution specifically uses this term only for the President; for judges, it refers to it as
Constitutional Articles Associated:
- Article 124(4): Outlines the grounds (proved misbehaviour/incapacity) and the voting threshold for removing a Supreme Court judge.
- Article 124(5): Empowers Parliament to legislate the procedure for investigation and proof of misbehaviour.
- Article 217(1)(b): States that a High Court judge can be removed in the same manner as a Supreme Court judge.
- Article 218: Formally applies the provisions of Article 124(4) and (5) to High Court judges.
Terms and Conditions:
- Grounds: Removal can only occur on grounds of proved misbehaviour or incapacity.
- Signature Requirement: A notice must be signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha.
- Judicial Standards: Misbehaviour includes corruption, lack of integrity, or wilful abuse of judicial office (M. Krishna Swami v. Union of India).
- Investigative Committee: A three-member committee (SC judge, HC Chief Justice, and a jurist) must verify the charges.
- Special Majority: The motion must be passed by a majority of the total membership and two-thirds of those present and voting in each House.
Procedure of Removal:
- Submission of Motion: The signed notice is handed to the Speaker (LS) or Chairman (RS).
- Admission: The Presiding Officer decides whether to admit or reject the motion at the threshold.
- Investigation: If admitted, an inquiry committee is formed to investigate the specific charges.
- Parliamentary Debate: If the committee finds the judge guilty, the House takes up the motion for debate.
- Presidential Order: If passed by both Houses with a special majority, the President issues the final removal order.
Flaws in Judicial Removal:
- Threshold Arbitrariness: The Presiding Officer can reject a motion signed by 100+ MPs without assigning detailed reasons.
E.g. In 2018, the Rajya Sabha Chairman rejected the removal motion against CJI Dipak Misra at the threshold, leading to claims of administrative overreach.
- Political Bottleneck: Since the Speaker/Chairman often belongs to the ruling party, removal motions against favourable judges can be blocked.
E.g. Critics argue the recent notice against Justice Swaminathan (2025) faces a high risk of rejection because the presiding officer acts as a statutory authority rather than a neutral judge.
- Lack of Definition: Misbehaviour is not defined in the Constitution, leaving room for subjective interpretation by the Inquiry Committee.
E.g. The 2015 motion against Justice J.B. Pardiwala for objectionable remarks showed how ideological disagreements can be framed as misbehaviour.
- Procedural Opacity: The preliminary examination by the Speaker happens behind closed doors before any judicial investigation begins.
E.g. In the Justice Yashwant Varma case (2025), the Supreme Court noted that the Secretariat’s administrative role sometimes improperly drifts into quasi-adjudicatory territory.
- The Lapse Loophole: If a motion is rejected at the start, the entire constitutional mechanism becomes infructuous (useless), regardless of the evidence.
E.g. Despite 107 MPs signing the 2025 motion against Justice Swaminathan, if the Speaker refuses admission, the charges are never legally investigated.
Way Ahead:
- Define Admissibility: Amend the Judges (Inquiry) Act to clearly spell out the criteria for admitting a motion to prevent arbitrary rejections.
- Time-bound Investigation: Introduce mandatory timelines for the Presiding Officer to decide on the admission of a motion.
- Judicial Review: Ensure that the decision to reject a removal motion at the threshold is subject to a transparent judicial review by a Constitution Bench.
- Independent Secretariat: Empower an independent body, rather than the Speaker’s office, to perform the initial administrative check of the motion’s validity.
- Codify Misbehaviour: Formally define the categories of judicial misconduct to separate judicial error (which should be appealed) from misbehaviour (which warrants removal).
Conclusion:
The current framework for judicial removal strikes a delicate but flawed balance between judicial independence and accountability. By granting the Speaker absolute discretion to kill a motion at the threshold, the law creates a loophole that can be exploited for political ends. Reforming this statutory stage is essential to ensure that serious charges against the judiciary are tested by evidence rather than blocked by administrative whims.
