Judicial removal — tough law with a loophole

Judicial Removal — Tough Law with a Loophole

UPSC Prelims + Mains Study Note

1. At a Glance

• Judicial removal in India refers to the constitutionally prescribed process of removing a Supreme Court or High Court judge from office — not called "impeachment" in the Constitution (that term applies only to the President). [S1]
• Governed by Articles 124(4), 124(5), 217(1)(b), and 218 of the Constitution, operationalised through the Judges (Inquiry) Act, 1968. [S1][S2]
• The procedure is deliberately onerous — requiring massive Parliamentary majority — to protect judicial independence; yet it contains a structural loophole: the Speaker/Chairman can simply decline to admit the motion, effectively killing it without any investigation. [S1]
• Directly relevant to GS-II (Indian Polity — Judiciary, Separation of Powers, Constitutional Provisions). A live 2025-26 controversy makes this high-probability for both Prelims and Mains.

2. Why in the News

• December 9, 2025: 107 Members of Parliament of the Lok Sabha belonging to the INDIA bloc submitted a notice of removal motion to Speaker Om Birla against Justice G.R. Swaminathan, Judge of the Madras High Court. [S1]
• The motion carried 13 charges, including that the judge acted against secular constitutional principles and favoured lawyers of a particular community. [S1]
• The episode reignited debate on whether the Speaker's gatekeeping power constitutes an unchecked loophole in an otherwise stringent constitutional mechanism. [S1]

3. Background & Evolution

4. Core Static Facts

Constitutional Provisions - Article 124(4): Grounds — proved misbehaviour or incapacity; removal by President's order after address by both Houses in the same session. [S1][S2] - Article 124(5): Parliament to regulate investigation procedure by law → gave birth to the Judges (Inquiry) Act, 1968. [S1] - Article 217(1)(b): Removal of a High Court judge — same procedure as Article 124 applies. [S1] - Article 218: Provisions of Article 124(4)-(5) apply to HC judges mutatis mutandis. [S1] - Article 61: The word "impeachment" is used only for the President of India; for judges, the Constitution says "removal". [S1]

Judges (Inquiry) Act, 1968 - Act No. 51 of 1968, enacted 5 December 1968. [S2][S3] - Motion can originate in either House of Parliament. [S2] - Admission threshold: Lok Sabha — signed by ≥ 100 members; Rajya Sabha — signed by ≥ 50 members. [S2][S5] - On admission, the Speaker / Chairman constitutes a three-member Inquiry Committee: (i) SC Chief Justice or a SC Judge, (ii) Chief Justice of a HC, (iii) a distinguished jurist. [S2][S5] - Committee has powers of a Civil Court for investigation; judge has the right to cross-examine witnesses and represent his case. [S2] - After Committee report: if charges proved, the motion is voted upon in both Houses. Passage requires (a) special majority — ≥ 2/3 of members present and voting, AND (b) absolute majority — majority of total strength of the House. [S2][S5] - Both Houses must pass the motion in the same session. [S2] - President then issues the order of removal. [S2]

The Loophole - The Speaker/Chairman has discretion to admit or refuse the motion. There is no judicial review of this decision and no statutory time limit within which the Speaker must decide. This is the structural loophole. [S1] - If the Speaker simply sits on the notice or rejects it without reasons, the process is effectively dead on arrival. [S1]

5. Multi-Dimensional Analysis

Legal / Constitutional

• Articles 124 and 217 make removal nearly impossible by design — this protects judicial independence per the separation of powers doctrine enshrined in the Basic Structure. [S1]
• The absolute + special majority double-lock is unique; even constitutional amendments (Article 368) require only a special majority in most cases.
• The term mismatch ("impeachment" vs. "removal") is a deliberate constitutional choice — India's framers wanted to distinguish the judicial process from the American presidential impeachment template. [S1]
• The Speaker's discretion is constitutionally unguided, creating a potential Executive lever over the Legislature's oversight function of the Judiciary — a separation-of-powers anomaly. [S1]

Ethical / Governance

• A judge accused of acting against secular constitutional principles (as in the Swaminathan case) touches on judicial ethics and the judicial oath (Third Schedule — to uphold the Constitution). [S1]
• If the Speaker (belonging to the ruling party) can bottle up a motion brought by the Opposition, the removal mechanism can become politically weaponised in both directions — either to protect or to target judges.
• The absence of a mandatory timeline for the Speaker's decision violates the principle of accountability without impunity.

Historical

• No judge has ever been successfully removed in India's constitutional history — the mechanism has been invoked several times but has never run its full course. [S5]
• This record raises a dilemma: does it prove judicial integrity or systemic inability to hold judges accountable?

Administrative

• Both Houses must act in the same Parliamentary session — if one House passes the motion near the end of a session and the session ends before the second House votes, the entire process has to restart. [S2]
• The Inquiry Committee has no fixed timeline to submit its report, causing prolonged proceedings.

6. Recent Developments (last 12-18 months)

• December 9, 2025: 107 INDIA bloc Lok Sabha MPs submit removal motion notice against Justice G.R. Swaminathan, Madras HC, to Speaker Om Birla — 13 charges including anti-secularism bias. [S1]
• Motion's fate as of early 2026 depends on Speaker's admission decision — widely watched as a test of the gatekeeping loophole. [S1]
• The case has rekindled parliamentary debate on whether the Judges (Inquiry) Act, 1968 needs reform to impose a mandatory timeline on the Speaker. [S1]

7. Prelims Hooks

1. The word "impeachment" appears in the Indian Constitution only for the President (Article 61); for judges, the term used is "removal". [S1]
2. Article 124(5) authorises Parliament to legislate the investigation procedure → resulted in the Judges (Inquiry) Act, 1968. [S1][S2]
3. A removal motion in Lok Sabha requires signatures of at least 100 MPs; in Rajya Sabha, at least 50 MPs. [S2][S5]
4. The Inquiry Committee is a three-member body: one SC judge, one HC Chief Justice, one distinguished jurist — constituted by the Speaker/Chairman. [S2]
5. The Committee possesses powers of a Civil Court during investigation. [S2]
6. Passage of a removal motion requires both a special majority (2/3 of those present and voting) and an absolute majority (majority of total House strength). [S2][S5]
7. Both Houses must pass the motion in the same Parliamentary session. [S2]
8. No judge of the Supreme Court or any High Court has ever been removed under this procedure in India's constitutional history. [S5]
9. The High Court judge removal framework is covered under Articles 217(1)(b) and 218, not Article 124 directly — though Article 218 applies Article 124(4)-(5) to HC judges. [S1]
10. Justice Soumitra Sen (Calcutta HC) became the first judge against whom a removal motion was passed by one House (Rajya Sabha, 2011) before he resigned. [Historical knowledge]
11. The Judges (Inquiry) Act was enacted on 5 December 1968, as Act No. 51 of 1968. [S2][S3]
12. The motion against Justice G.R. Swaminathan (Madras HC) was submitted to Speaker Om Birla on December 9, 2025 by 107 INDIA bloc MPs. [S1]
13. The Speaker/Chairman has unchecked discretion to admit or reject the motion — there is no statutory deadline or judicial review of this decision. [S1]

8. Mains Relevance

GS Paper: GS-II (Indian Polity and Governance — Constitution, Judiciary)

Syllabus Headings: - Structure, organisation and functioning of the Judiciary - Separation of powers between various organs; dispute redressal mechanisms - Parliament and State Legislatures — functioning, powers, privileges

Plausible Mains Question Stems: 1. "The constitutional mechanism for removal of judges in India is robust in letter but fragile in spirit. Critically examine with reference to the structural loophole in the Judges (Inquiry) Act, 1968." (GS-II, 15 marks) 2. "Distinguish between 'impeachment' and 'removal' as used in the Indian Constitution. Analyze whether the present procedure for judicial removal adequately balances judicial independence with accountability." (GS-II, 10 marks) 3. "The Speaker's unfettered discretion to admit or reject a removal motion against a judge raises concerns about the separation of powers. Comment." (GS-II, 15 marks)

9. Related Topics to Study Next

10. Common Errors / Trap Areas

1. "Impeachment" ≠ judicial removal: Students frequently write that judges are "impeached" — the Constitution reserves that word for the President. Judges are removed. [S1]
2. Majority confusion: Many confuse the required majority — it is not merely a special majority. It requires both a special majority (2/3 of present-and-voting) AND an absolute majority (majority of total strength). [S2]
3. Article mapping: HC judge removal is often wrongly attributed solely to Article 124 — the correct provision is Article 217(1)(b) read with Article 218 (which applies Article 124(4)-(5) to HC judges). [S1]
4. Threshold numbers: 100 MPs for Lok Sabha and 50 MPs for Rajya Sabha are frequently swapped. [S2][S5]
5. "Same session" rule ignored: Students often overlook that both Houses must pass the motion in the same Parliamentary session — a critical procedural trap that can defeat an otherwise successful motion. [S2]

11. Sources

• [S1] P.D.T. Achary, "Judicial removal — tough law with a loophole," The Hindu, January 22, 2026 — https://www.thehindu.com/todays-paper/2026-01-22/th_international/articleGVGFFJ6PM-13196521.ece — (Tier 4; article content supplied as primary source)
• [S2] PRS Legislative Research, "Explainer: How a Sitting Judge Can Be Removed From Office" — https://prsindia.org/articles-by-prs-team/explainer-how-a-sitting-judge-can-be-removed-from-office — (Tier 1)
• [S3] India Code, "Judges (Inquiry) Act, 1968" — https://www.indiacode.nic.in/handle/123456789/1539?view_type=browse — (Tier 1)
• [S4] Rajya Sabha, "Report of the Judges Inquiry Committee in the matter of Justice S.K. Gangele" — https://cms.rajyasabha.nic.in/documents/1631892021869.03_jic_gangele_report.pdf — (Tier 1)
• [S5] PRS Legislative Research, "FAQ on the process of impeachment of judges" — https://prsindia.org/theprsblog/faq-on-the-process-of-impeachment-of-judges — (Tier 1)
• [S6] Legislative Department, "Judges (Inquiry) Act, 1968" — https://www.legislative.gov.in/actsofparliamentfromtheyear/judges-inquiry-act-1968 — (Tier 1)

Note: All Tier 1 sources (PRS, India Code, Legislative.gov.in, Rajya Sabha) confirmed via web search; article content (S1) supplied directly as the triggering primary source.