4 months ago
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There has been overmuch attraction connected 107 Members of Parliament successful the Lok Sabha (the INDIA bloc) having fixed announcement of an impeachment question successful December 2025, seeking the removal of Justice G.R. Swaminathan, Judge of the Madras High Court. The question had 13 charges against the justice which included 1 that the justice has been acting against secular law principles and favouring lawyers of a peculiar community. The announcement of the question was submitted to the Speaker of the Lok Sabha, Om Birla, connected December 9.
The presumption and conditions
Impeachment of a justice of the Supreme Court of India is provided for successful Articles 124(4) and 124(5) of the Constitution and that of a High Court justice successful Articles 217(1)(b) and 218. The word ‘impeachment’ is not utilized successful the Constitution which alternatively uses the word ‘removal’ successful the lawsuit of judges. The word ‘impeachment’ is utilized lone successful the discourse of the removal of the President of India from bureau (Article 61). The process laid down successful Article 124 for the removal of a Supreme Court justice applies to a High Court justice arsenic well.
Article 124(5) provides that Parliament whitethorn marque instrumentality to modulate the process for the probe of the charges against the judge. Accordingly, Parliament enacted the Judges (Inquiry) Act successful 1968 which, unneurotic with the Judges Inquiry Rules, deals with the full process for the impeachment of judges.
A justice of the Supreme Court oregon the High Court tin beryllium removed from bureau connected the crushed of proved misbehaviour oregon incapacity. Misbehaviour has not been specifically defined successful the Constitution. But the Court has successful a fig of judgments explained this word arsenic behaviour which brings dishonour to the judiciary, wilful misconduct, corruption, deficiency of integrity, offence involving motivation turpitude, and wilful maltreatment of judicial office.
There person been precise lofty pronouncements by the apical tribunal connected the perfect behaviour of judges. In K. Veeraswami vs Union Of India And Others (1991), the Court said that “... the society’s request for honesty successful a justice is exacting and absolute. The standards of judicial behaviour some connected and disconnected the seat are usually highly high. For a justice to deviate from specified standards of honesty and impartiality is to betray the spot reposed connected him. No excuse oregon nary ineligible relativity tin Condon specified betrayal.”
On the meaning of proven misbehaviour, the Court successful M. Krishna Swami vs Union Of India and Ors. (1992) says “every enactment oregon behaviour oregon adjacent mistake of judgments oregon negligent acts by higher judiciary per se does not magnitude to misbehaviour. Wilful maltreatment of judicial office, wilful misconduct successful the office, corruption, deficiency of integrity oregon immoderate different offence involving motivation turpitude would beryllium misbehaviour. Misconduct implies actuation of immoderate grade of mens rea by the doer.”
Procedures of the motion
An investigation of Articles 124(4) and (5), the Judges (Inquiry) Act, 1968 and Rules would uncover that lawmakers were highly cautious astir protecting the independency of the judiciary. So, the instrumentality relating to the removal of a justice of the superior courts was made arsenic pugnacious arsenic possible. The main provisions of Articles 124(4) and (5) are: ‘an code to beryllium passed by each House of Parliament supported by a bulk of the full rank of each House and by a bulk of not little than 2 thirds of the members contiguous and voting which shall beryllium sent to the President seeking the removal of the justice who shall thereupon walk an bid removing the justice from his office’. It besides provides for the enactment of a instrumentality by Parliament for regulating the process relating to the probe of charges against the justice and for the presumption of an code to the President seeking his removal.
This Act provides for a question to beryllium submitted to either the Speaker (Lok Sabha) oregon the Chairman (Rajya Sabha) signed by Members of either House. The Act requires not little than 100 Members of the Lok Sabha to motion the announcement of question if fixed to the Speaker and not little than 50 Members of the Rajya Sabha to motion the announcement if fixed to the Chairman. The question seeks to contiguous an code to the President for the removal of the judge.
The Act successful information introduces a process nether which the question fixed announcement is required to beryllium admitted by the Speaker/Chairman successful the archetypal place. The Act further says that the Speaker/Chairman whitethorn adjacent disallow the motion.
Of course, helium volition see materials disposable to him and whitethorn besides consult specified persons arsenic helium thinks acceptable earlier admitting oregon rejecting the motion. The astir important happening astir this process is that if the Speaker/Chairman refuses to admit the motion, nary further enactment volition beryllium taken successful the substance and the question volition lapse.
This process needs person examination. The Act does not notation the conditions of admissibility of the motion, which is the lawsuit successful respect of each motions and resolutions nether the Rules of Procedure of the Houses of Parliament. It whitethorn beryllium noted present that the Speaker/Chairman portion admitting oregon disallowing the question nether this Act is not performing the work arsenic the Presiding Officer of the House. On the contrary, helium acts arsenic a statutory authorization and frankincense performs a statutory Act. Still, the basal conditions of admissibility of the question request to beryllium spelt out. Otherwise, the enactment of disallowing the question whitethorn pull the complaint of arbitrariness particularly erstwhile the Speaker is performing a statutory act. It is different substance that since disallowing the question is simply a statutory Act, arsenic chiseled from a legislative Act performed successful the House, it tin beryllium challenged successful court.
Where the flaw lies
As a substance of fact, the charges against a justice are thoroughly investigated by a committee appointed by the Speaker/Chairman consisting of a justice of the Supreme court, the Chief Justice of a High Court and a distinguished jurist. This enactment is taken aft the question is admitted by the Speaker/Chairman. This volition beryllium a elaborate probe done by precise experienced judicial officers. So, what precisely volition beryllium the introspection which the Speaker/Chairman volition bash astatine the archetypal stage? It whitethorn beryllium mentioned present that nether the law, the preliminary introspection by the Speaker/Chairman is of specified important value that if the announcement of question signed by arsenic galore arsenic 100 oregon much Members of Parliament is disallowed without assigning immoderate reasons, the full workout which is undertaken by Parliament for the impeachment of a justice nether a law proviso becomes infructuous due to the fact that the question does not survive. This points to a superior flaw successful the law. Article 124(5) does not notation to immoderate circumstantial question which is required to beryllium admitted oregon disallowed by the presiding serviceman of the House. It whitethorn beryllium noted present that nether Article 61, determination is simply a proviso for a solution which is mandatorily to beryllium moved. But this Article does not empower the Speaker/Chairman to garbage to admit it connected immoderate grounds.
In fact, Article 124(5) which empowers Parliament to marque a instrumentality to “regulate the process for the presumption of an address” and for “investigation and impervious of the misbehaviour oregon incapacity of a judge” does not permission immoderate abstraction for the Speaker/Chairman to garbage admittance of the motion. Proof of misbehaviour is to beryllium established done probe which is to beryllium done by the high-level committee appointed by the Speaker/Chairman.
So, obviously, determination is nary crushed connected which a question signed by arsenic galore arsenic 100 Members of Parliament (MP) tin beryllium rejected astatine the threshold.
There is nary crushed to deliberation that the MPs who determination a question for impeaching a justice volition bash truthful without being superior astir it. But determination is each crushed to deliberation that a question for impeaching a justice is astir apt to beryllium disallowed astatine the threshold if the authorities does not privation it. Thus, the cognition of a superior law proviso for removing an unworthy justice tin beryllium thwarted by the whims of a government.
Therefore, the proviso which gives the Speaker/Chairman an enactment to disallow the question needs to beryllium revisited.
P.D.T. Achary is erstwhile Secretary General, Lok Sabha
