The notice of an impeachment motion against a sitting High Court judge has once again drawn attention to a rarely used but constitutionally critical mechanism — the removal of judges in India. Beyond the immediate political controversy, the episode raises deeper questions about judicial accountability, parliamentary procedure, and a structural flaw that allows a single authority to stall an entire constitutional process at the threshold.
Why the impeachment notice has drawn attention
In December 2025, 107 Members of Parliament in the Lok Sabha submitted a notice seeking the removal of Justice G. R. Swaminathan, a judge of the Madras High Court. The notice, moved by MPs belonging to the INDIA bloc, levelled 13 charges, including allegations that the judge acted contrary to secular constitutional principles and showed favour towards lawyers from a particular community.
The notice was submitted to the Speaker of the Lok Sabha, Om Birla, on December 9. While such motions are rare, their significance lies not only in the charges themselves but in the constitutional pathway they activate — or fail to activate.
What the Constitution actually provides
The Constitution does not use the term “impeachment” for judges. Instead, it speaks of “removal” of judges of the Supreme Court and High Courts. Articles 124(4) and 124(5) govern the removal of Supreme Court judges, while Articles 217(1)(b) and 218 extend the same procedure to High Court judges.
The word “impeachment” appears only in Article 61, which deals with the removal of the President of India. In the case of judges, removal can take place only on the grounds of proved misbehaviour or incapacity and requires a special majority in both Houses of Parliament.
What counts as ‘proved misbehaviour’
The Constitution deliberately avoids defining “misbehaviour”, leaving it to judicial interpretation. Over time, the Supreme Court has clarified that not every error of judgment or act of negligence qualifies. Misbehaviour involves conduct that brings disrepute to the judiciary — such as wilful misconduct, corruption, lack of integrity, abuse of office, or offences involving moral turpitude.
The Court has repeatedly emphasised that judges are held to exceptionally high standards, both on and off the bench, because public trust in the judiciary depends on perceived impartiality and integrity.
The Judges (Inquiry) Act and the intended safeguards
Article 124(5) empowers Parliament to enact a law regulating the investigation and proof of charges against judges. Acting on this, Parliament passed the Judges (Inquiry) Act, 1968, along with detailed Rules.
Under this law:
- A motion for removal must be signed by at least 100 Lok Sabha MPs or 50 Rajya Sabha MPs.
- The motion is submitted to the Speaker or Chairman, as the case may be.
- If admitted, a three-member committee is constituted — comprising a Supreme Court judge, a Chief Justice of a High Court, and a distinguished jurist — to investigate the charges.
- Only after the committee finds the judge guilty can Parliament proceed to debate and vote on the motion.
The design reflects an intent to protect judicial independence by making removal difficult, deliberative, and evidence-based.
The critical gatekeeping role of the Speaker or Chairman
The most contentious feature of the process lies at its very first step. The Judges (Inquiry) Act allows the Speaker or Chairman to either admit or disallow the motion at the threshold. If the presiding authority refuses to admit the motion, the matter ends there — no committee is formed, no investigation takes place, and the motion lapses entirely.
Crucially, the Act does not specify any criteria for admissibility. Nor does it require the Speaker or Chairman to give reasons for rejecting a motion, even one signed by the constitutionally mandated number of MPs.
Why this power raises constitutional concerns
This preliminary scrutiny is not a legislative function performed inside the House but a statutory function exercised under a parliamentary law. As such, it is theoretically open to judicial review. However, in practical terms, it places enormous discretionary power in the hands of a single authority.
This creates a paradox. The law provides for a detailed, expert investigation by senior judges and jurists — but only after the motion clears a discretionary political gate. If the motion is blocked at the outset, the very mechanism designed to determine “proved misbehaviour” is never triggered.
Comparison with presidential impeachment
The contrast with Article 61 is striking. In the case of impeachment of the President, the Constitution mandates the moving of a resolution once notice requirements are met. There is no comparable power vested in the Speaker or Chairman to refuse admission.
By comparison, Article 124(5) merely authorises Parliament to regulate the procedure for investigation and presentation of an address. It does not explicitly contemplate the rejection of a motion before investigation begins.
Where the flaw in the law lies
The core flaw is that a constitutionally significant process — removal of an unworthy judge — can be halted without inquiry, without reasons, and potentially for political considerations. If the government of the day is unwilling to see a motion proceed, the Speaker’s power to disallow it becomes an effective veto.
This undermines the balance the Constitution seeks to strike between judicial independence and judicial accountability. Independence is protected, but accountability risks being rendered illusory.
What to note for Prelims?
- Removal of judges: Articles 124, 217, and 218.
- Grounds: proved misbehaviour or incapacity.
- Judges (Inquiry) Act, 1968 governs procedure.
- Special majority required in both Houses.
What to note for Mains?
- Tension between judicial independence and accountability.
- Discretionary power of Speaker/Chairman under the Judges (Inquiry) Act.
- Absence of admissibility criteria and requirement to record reasons.
- Need to revisit procedural safeguards to prevent arbitrary stalling of constitutional mechanisms.