Syllabus: GS 2- Polity- Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of various Constitutional Bodies.
Introduction:
The issue of judicial removal came into focus in December 2025 when 107 Lok Sabha Members of Parliament submitted a motion seeking the removal of a Madras High Court judge. The notice contained 13 charges, including allegations of acting against secular constitutional principles. While the Constitution provides a strict mechanism for removing judges to protect independence, the present case exposes a serious procedural weakness that can block accountability at the very beginning.
Constitutional Framework for Removal of Judges
1.Relevant constitutional provisions: Removal of Supreme Court judges is provided under Articles 124(4) and 124(5), while High Court judges are governed by Articles 217(1)(b) and 218.
- Uniform removal procedure: The procedure prescribed under Article 124 applies equally to both Supreme Court and High Court judges.
- Use of constitutional terminology: The Constitution does not use the term impeachment for judges. It uses “removal”, while impeachment is used only for the President of India under Article 61.
- Parliament’s authority under Article 124(5): Article 124(5) empowers Parliament to make law for regulating investigation of charges and presentation of an addressfor removal.
- Judges (Inquiry) Act, 1968: Based on Article 124(5), Parliament enacted the Judges (Inquiry) Act, 1968, along with the Judges Inquiry Rules, to regulate the complete procedure.
Grounds for Removal of a Judge
- Permissible grounds: A judge can be removed only on grounds of proved misbehaviour or incapacity.
- Absence of constitutional definition: The Constitution does not define misbehaviour.
- Judicial interpretation: Courts have explained misbehaviour as conduct that brings dishonour to the judiciary, including wilful misconduct, corruption, lack of integrity, moral turpitude, and abuse of judicial office.
- Standard of conduct: In K. Veeraswami v. Union of India (1991), the Court stated that judicial honesty and impartiality must be absolute.
- Requirement of intent: In M. Krishna Swami v. Union of India (1992), the Court clarified that misbehaviour requires wilful conduct and not mere error of judgment or negligence.
Procedure for Removal of a Judge
Step 1: Notice of Motion: A removal motion must be submitted to the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha. It requires signatures of at least 100 Lok Sabha members or 50 Rajya Sabha members.
Step 2: Admission of Motion: The Speaker or Chairman examines the notice at the initial stage and may admit or disallow the motion. If the motion is disallowed, the entire process ends and no further action is taken.
Step 3: Investigation Committee: After admission, a committee is constituted consisting of a Supreme Court judge, a Chief Justice of a High Court, and a distinguished jurist. The committee conducts a detailed investigation into the charges.
Step 4: Parliamentary Approval: If the committee finds the charges proved, an address must be passed by each House of Parliament. The address must be supported by a majority of total membership and two-thirds of members present and voting, after which it is sent to the President for removal of the judge.
Major Flaw Related to Removal of a Judge
- Threshold rejection power: The law allows the Speaker or Chairman to disallow the motion even before investigation begins.
- No admissibility criteria: The Judges (Inquiry) Act does not specify any criteria for admitting or rejecting a motion.
- Statutory character of decision: While deciding admission, the Speaker or Chairman acts as a statutory authority, not merely as the presiding officer of the House.
- Risk of arbitrariness: Since reasons for rejection are not mandatory, the process may attract charges of arbitrariness.
- Comparison with President’s removal: Under Article 61, a resolution for removal of the President must be moved mandatorily. The Speaker or Chairman has no power to refuse it.
- Conflict with Article 124(5): Article 124(5) allows regulation of investigation and proof of misbehaviour. It does not permit rejection before investigation.
- Unclear purpose of preliminary scrutiny: The law does not explain what examination the Speaker or Chairman must conduct at the first stage.
- Core constitutional defect: A motion supported by more than 100 elected MPs can lapse without inquiry, making the constitutional remedy ineffective.
Consequences of the Existing Flaw
- Parliamentary process becomes infructuous: If the motion is rejected initially, the entire constitutional mechanism collapses.
- Investigation never takes place: The expert committee does not get an opportunity to examine the charges.
- Judicial accountability weakens: A system meant to ensure accountability fails to function effectively when serious allegations cannot even reach the investigation stage.
- Possibility of political influence: If the government does not support the motion, rejection at the threshold becomes likely.
- Dilution of constitutional intent: A serious constitutional provision can be defeated by procedural discretion.
- Impact on public confidence: When accountability mechanisms cannot operate, trust in constitutional institutions declines.
Conclusion:
The law governing removal of judges is intentionally strict to protect judicial independence. However, the power given to the Speaker or Chairman to disallow a motion at the threshold creates a major loophole. Article 124(5) does not support such rejection without investigation. When a motion signed by elected representatives can lapse without inquiry, accountability suffers. This provision requires reconsideration to ensure balance between judicial independence and constitutional responsibility.
Question for practice:
Discuss how the existing procedure for removal of judges in India, despite being constitutionally strict, contains a loophole that allows a motion to lapse at the threshold stage, thereby weakening judicial accountability.
Source: The Hindu
