There has been much attention on 107 Members of Parliament in the Lok Sabha (the INDIA bloc) having given notice of an impeachment motion in December 2025, seeking the removal of Justice G.R. Swaminathan, Judge of the Madras High Court. The motion had 13 charges against the judge which included one that the judge has been acting against secular constitutional principles and favouring lawyers of a particular community. The notice of the motion was submitted to the Speaker of the Lok Sabha, Om Birla, on December 9.
The terms and conditions
Impeachment of a judge of the Supreme Court of India is provided for in Articles 124(4) and 124(5) of the Constitution and that of a High Court judge in Articles 217(1)(b) and 218. The term ‘impeachment’ is not used in the Constitution which instead uses the term ‘removal’ in the case of judges. The term ‘impeachment’ is used only in the context of the removal of the President of India from office (Article 61). The procedure laid down in Article 124 for the removal of a Supreme Court judge applies to a High Court judge as well.
Article 124(5) provides that Parliament may make law to regulate the procedure for the investigation of the charges against the judge. Accordingly, Parliament enacted the Judges (Inquiry) Act in 1968 which, together with the Judges Inquiry Rules, deals with the entire procedure for the impeachment of judges.
A judge of the Supreme Court or the High Court can be removed from office on the ground of proved misbehaviour or incapacity. Misbehaviour has not been specifically defined in the Constitution. But the Court has in a number of judgments explained this term as conduct which brings dishonour to the judiciary, wilful misconduct, corruption, lack of integrity, offence involving moral turpitude, and wilful abuse of judicial office.
There have been very lofty pronouncements by the top court on the ideal conduct of judges. In K. Veeraswami vs Union Of India And Others (1991), the Court said that “… the society’s demand for honesty in a judge is exacting and absolute. The standards of judicial behaviour both on and off the bench are normally extremely high. For a judge to deviate from such standards of honesty and impartiality is to betray the trust reposed on him. No excuse or no legal relativity can Condon such betrayal.”
On the meaning of proven misbehaviour, the Court in M. Krishna Swami vs Union Of India and Ors. (1992) says “every act or conduct or even error of judgments or negligent acts by higher judiciary per se does not amount to misbehaviour. Wilful abuse of judicial office, wilful misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour. Misconduct implies actuation of some degree of mens rea by the doer.”
Procedures of the motion
An analysis of Articles 124(4) and (5), the Judges (Inquiry) Act, 1968 and Rules would reveal that lawmakers were extremely careful about protecting the independence of the judiciary. So, the law relating to the removal of a judge of the superior courts was made as tough as possible. The main provisions of Articles 124(4) and (5) are: ‘an address to be passed by each House of Parliament supported by a majority of the total membership of each House and by a majority of not less than two thirds of the members present and voting which shall be sent to the President seeking the removal of the judge who shall thereupon pass an order removing the judge from his office’. It also provides for the enactment of a law by Parliament for regulating the procedure relating to the investigation of charges against the judge and for the presentation of an address to the President seeking his removal.
This Act provides for a motion to be submitted to either the Speaker (Lok Sabha) or the Chairman (Rajya Sabha) signed by Members of either House. The Act requires not less than 100 Members of the Lok Sabha to sign the notice of motion if given to the Speaker and not less than 50 Members of the Rajya Sabha to sign the notice if given to the Chairman. The motion seeks to present an address to the President for the removal of the judge.
The Act in fact introduces a procedure under which the motion given notice is required to be admitted by the Speaker/Chairman in the first place. The Act further says that the Speaker/Chairman may even disallow the motion.
Of course, he will consider materials available to him and may also consult such persons as he thinks fit before admitting or rejecting the motion. The most crucial thing about this procedure is that if the Speaker/Chairman refuses to admit the motion, no further action will be taken in the matter and the motion will lapse.
This procedure needs closer examination. The Act does not mention the conditions of admissibility of the motion, which is the case in respect of all motions and resolutions under the Rules of Procedure of the Houses of Parliament. It may be noted here that the Speaker/Chairman while admitting or disallowing the motion under this Act is not performing the duty as the Presiding Officer of the House. On the contrary, he acts as a statutory authority and thus performs a statutory Act. Still, the basic conditions of admissibility of the motion need to be spelt out. Otherwise, the action of disallowing the motion may attract the charge of arbitrariness especially when the Speaker is performing a statutory act. It is another matter that since disallowing the motion is a statutory Act, as distinct from a legislative Act performed in the House, it can be challenged in court.
Where the flaw lies
As a matter of fact, the charges against a judge are thoroughly investigated by a committee appointed by the Speaker/Chairman consisting of a judge of the Supreme court, the Chief Justice of a High Court and a distinguished jurist. This action is taken after the motion is admitted by the Speaker/Chairman. This will be a detailed investigation done by very experienced judicial officers. So, what exactly will be the examination which the Speaker/Chairman will do at the first stage? It may be mentioned here that under the law, the preliminary examination by the Speaker/Chairman is of such crucial importance that if the notice of motion signed by as many as 100 or more Members of Parliament is disallowed without assigning any reasons, the whole exercise which is undertaken by Parliament for the impeachment of a judge under a constitutional provision becomes infructuous because the motion does not survive. This points to a serious flaw in the law. Article 124(5) does not refer to any specific motion which is required to be admitted or disallowed by the presiding officer of the House. It may be noted here that under Article 61, there is a provision for a resolution which is mandatorily to be moved. But this Article does not empower the Speaker/Chairman to refuse to admit it on any grounds.
In fact, Article 124(5) which empowers Parliament to make a law to “regulate the procedure for the presentation of an address” and for “investigation and proof of the misbehaviour or incapacity of a judge” does not leave any space for the Speaker/Chairman to refuse admission of the motion. Proof of misbehaviour is to be established through investigation which is to be done by the high-level committee appointed by the Speaker/Chairman.
So, obviously, there is no ground on which a motion signed by as many as 100 Members of Parliament (MP) can be rejected at the threshold.
There is no reason to think that the MPs who move a motion for impeaching a judge will do so without being serious about it. But there is every reason to think that a motion for impeaching a judge is most likely to be disallowed at the threshold if the government does not want it. Thus, the operation of a serious constitutional provision for removing an unworthy judge can be thwarted by the whims of a government.
Therefore, the provision which gives the Speaker/Chairman an option to disallow the motion needs to be revisited.
P.D.T. Achary is former Secretary General, Lok Sabha
