Judicial Removal- tough law with a Loophole

107 Lok Sabha Members of Parliament (MPs) gave notice to remove Madras High Court’s Justice G R Swaminathan, alleging constitutional impropriety and community bias.

Constitutional Basis for Removal of Judges

• Articles Involved: Articles 124(4)–124(5) for Supreme Court judges and Articles 217(1)(b) and 218 for High Court judges apply the same removal procedure.
• Terminology: The Constitution uses the term “removal”, while “impeachment” is formally used only for the President under Article 61.
• Grounds: Judges can be removed only for “proved misbehaviour or incapacity”, ensuring protection against frivolous charges.

Meaning of “Proved Misbehaviour”

• Judicial Interpretation of Misbehaviour: It is not defined in the Constitution but interpreted via cases like K. Veeraswamy v. Union of India (1991) (requiring high standards of honesty on and off the bench) and 
  • M. Krishna Swami v. Union of India (1992) (intentional misuse of power or corruption)

Statutory Framework: Judges (Inquiry) Act, 1968

• Legal Authority: Enacted under Article 124(5) to regulate the investigation and proof of charges against judges.
• Initiation Threshold: Motion must be signed by at least 100 Lok Sabha MPs or 50 Rajya Sabha MPs.
• Presiding Officer’s Role: Motion is submitted to the Speaker or Chairman, who must first admit it before inquiry begins.

Parliamentary Voting Requirement

• Special Majority: Each House must pass the address by a majority of the total membership and by two-thirds of the members present and voting.
• Presidential Role: The President removes the judge only after receiving the address from Parliament, making removal constitutionally formal.

Inquiry Mechanism After Admission

• Three-Member Committee: Consists of a Supreme Court judge, a High Court Chief Justice, and a distinguished jurist.
• Judicial Scrutiny: A detailed investigation ensures a professional and independent assessment of allegations.
• Due Process: The judge is given the opportunity to defend, preserving principles of natural justice.

Core Procedural Flaw Identified

• Threshold Veto Power: Speaker/Chairman can reject the motion at the first stage, ending the entire process.
• No Admissibility Criteria: The law does not specify conditions for accepting or rejecting the motion, enabling arbitrariness.
• Statutory Nature: Speaker acts as a statutory authority, not merely as presiding officer, so the decision is legally challengeable.

Constitutional Inconsistency Highlighted

• Article 124(5) Scope: Allows regulation of investigation and presentation of address, not rejection of motion itself.
• No Such Power in Article 61: Presidential impeachment resolution cannot be blocked by presiding officer, unlike judge removal.
• Process Distortion: Investigation should determine merit, not preliminary political discretion.

Democratic and Institutional Risks

• Executive Influence: The government can effectively block proceedings by controlling presiding officers.
• Chilling Effect: MPs may hesitate to initiate proceedings knowing motions can be summarily rejected (dismissed immediately and without detailed examination).
• Accountability Gap: A serious constitutional mechanism becomes ineffective despite strong parliamentary support.

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Way Forward

• Revisit Judges (Inquiry) Act: There is a need to amend the Judges (Inquiry) Act to remove or strictly circumscribe the Speaker/Chairman’s power to block motions at the threshold.
• Automatic Committee Trigger: Any motion fulfilling the constitutional numerical requirement should automatically be referred to the statutory inquiry committee.
• Balance Restored: Clear, objective procedures should replace discretionary gatekeeping to prevent political filtering of serious charges.

Conclusion

The independence of the judiciary is strengthened by fair, automatic scrutiny mechanisms.