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PETITIONER:

SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY ETC. ETC.

Vs.

RESPONDENT:

UNION OF INDIA AND ORS., ETC.

DATE OF JUDGMENT29/10/1991

BENCH:

RAY, B.C. (J)

BENCH:

RAY, B.C. (J)

SHARMA, L.M. (J)

VENKATACHALLIAH, M.N. (J)

VERMA, JAGDISH SARAN (J)

AGRAWAL, S.C. (J)

CITATION:

1992 AIR 320 1991 SCR Supl. (2) 1

1991 SCC (4) 699 JT 1991 (6) 184

1991 SCALE (2)844

CITATOR INFO :

RF 1992 SC2219 (1,2,4,8,9,16,17,23,TO 26,33,3

ACT:

Constitution of India. 1950:

Articles 124(4) and (5) and 118--Removal of Judge of

Supreme Court--Motion for presenting an Address to President

and decision of Speaker of Lok Sabha to admit the motion and

constitute a committee under Judges (inquiry) Act for inves-

tigation and proof of grounds--Whether lapses on dissolution

of the Lok Sabha--Whether Judges (inquiry) Act being law

under Article 124(5) excludes operation of doctrine of lapse

and also rules framed under Article 118--Whether Articles

124(5) and 118 operate in different fields-Question whether

the motion lapsed or not on the dissolution of Lok

Sabha--Justiciability of.

Articles 124(4) and (5) and 121--Scope and interpreta-

tion of-Removal of Judge of Supreme Court---Whether Justi-

ciable---Enactment of law under Article 124(5) for regulat-

ing procedure for investigation and proof of misbehaviour or

incapacity of Judges-----Whether mandatory--Word 'may "When

to be construed as 'shall '.

Articles 124(4) and (5) and 32---Removal of Judge of

Supreme Court ---Apart from constitutional process, whether

Supreme Court has jurisdiction to enquire into alleged

misbehaviour or incapacity and restrain the concerned Judge

from exercising judicial junctions--Whether it can give

legal directive to Chief Justice of India not to allot any

judicial work to the concerned Judge--Judge facing enquiry,

continuing to discharge judicial functions-----Propriety of.

Article 32 ---Public Interest Litigation--Inquiry Com-

mittee constituted by the Speaker of Lok Sabha under Judges

(inquiry) Act to investigate into the alleged misconduct of

Judge of Supreme Court--Writ Petitions seeking directions to

Union Government to enable the Committee to discharge its

functions under the Act and to restrain the Judge from

performing judicial functions during pendency of proceedings

before the Committee---Maintainability of--Locus standi of

Sub-committee on Judi-

2

cial Accountability and Supreme Court Bar Association to

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sue--Whether Court could refuse to interfere on grounds of

infructuousness, propriety and futility--Declaration of

legal and Constitutional position--Duty of Court--Different

organs of State to consider matters within the orbit of

their respective jurisdictions and powers.

Judges (inquiry) Act, 1968:

Constitutional validity of.

Sections 3 and 6--Removal of Judge--Motion for present-

ing an address to President admitted and Committee consti-

tuted by the Speaker of Lok Sabha to investigate into

charges of misconduct----Whether lapses on dissolution of

the House--Whether the Act, being law made under Article

124(5) of Constitution, excludes doctrine of lapse and also

rules of procedure for the Lok Sabha framed under Article

118--Action of Speaker --Whether vitiated on grounds of

denial of notice and pre-decisional opportunity of hearing

to concerned Judge and Speaker's political affiliation

---Doctrine of statutory exceptions or necessity--Applica-

bility of.

Constitutional Law:

Separation of Powers under federal set-up--Court--Inter-

preter of limits of authority of different organs of

State----Judicial review--Incidental to and flowing from

concept of written Constitution, the fundamental and higher

law.

Interpretation of Constitution:

Constructions which strengthen the fundamental feature

of the Constitution to be adoped-Rule of law--Whether a

basic feature---Independence of Judiciary----Whether essen-

tial attribute of Rule of Law.

Aids to Construction--Constituent Assembly

debates--Whether could be relied upon--Comparative Study of

Constitution of other Countries-Whether afford proper per-

spective--Resort to historical background-Whether permissi-

ble.

Administrative Law--Natural Justice--Motion for removal

of a Judge under Judges (Inquiry) Act-Speaker deciding to

admit the motion and constituting a Committee to enquire

into allegations of misbehaviour-Whether Judge concerned

entitled to pre-decisional opportunity of hearing.

3

Practice and Procedure:

Removal of a Judge Constitutional process

pending--Conduct of members of the bar--Propriety required

that the Judge should not be embarrassed even before the

charges were proved----Level of debate in and out of

Court----To be dignified and decorous.

Words & Phrases: Word 'may '--When could be read as'shall '.

HEADNOTE:

Upon a notice given by 108 members of the 9th Lok Sabha

of a Motion for presenting an Address to the President for

the removal of a sitting Judge of the Supreme Court for the

alleged misconduct committed by him while he was functioning

as Chief Justice of a High Court, the Speaker of the Lok

Sabha admitted the Motion and constituted a Committee con-

sisting of a sitting Judge of this Court, Chief Justice of a

High Court and a distinguished jurist in terms of Section

3(2) of the Judges (Inquiry) Act, 1968. Subsequently, the

Lok Sabha was dissolved and its term came to an end.

On its understanding that the Motion as well as the

decision of the Speaker thereon had lapsed consequent on the

dissolution of the Lok Sabha, the Union government did not

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act in aid of the decision of the Speaker, and notify that

the services of the two sitting Judges on the Committee

would be treated as "actual-service" within the meaning of

Para 11(B)(i) of Part D of the II Schedule to the Constitu-

tion.

Thereupon, a body called the Sub-Committee on Judicial

Accountability, claiming to be a Sub-Committee constituted

by an All India Convention on Judicial Accountability to

carry forward the task of implementing the resolutions of

the conventions, and the Supreme Court Bar Association,

seeking to prosecute the matter in the larger public inter-

est and, in particular, in the interests of litigant public,

filed two Writ Petitions before this Court. Two prayers

common to both the petitions were, first, that the Union of

India be directed to take immediate steps to enable the

Inquiry Committee to discharge its functions under the

Judges (Inquiry) Act, 1968 and, second, that during the

pendency of the proceedings before the Committee the con-

cerned Judge should be restrained from performing judicial

functions and from exercising Judicial powers.

It was contended on behalf of the petitioners that

pending business lapsed on prorogation, and as a general

practice the House was

4

usually prorogued before it was dissolved, but impeachment

motions were sui-generis in their nature and, therefore,

they did not lapse; that the question whether a motion

lapsed or not was a matter pertaining to the conduct of the

business of the House of which the House was the sole and

exclusive master; no aspect of the matter was justiciable

before a Court and Houses of Parliament were privileged to

be the exclusive arbiters of the legality of their proceed-

ings, that it would be highly inappropriate that the Speaker

should issue notice to a Judge and call upon him to appear

before him; that these proceedings could not be equated with

disciplinary or penal proceedings and the Speaker would not

decide anything against the Judge at that stage and would

merely decide whether the matter would bear investigation;

that the constitutional machinery for removal of a Judge was

merely a political remedy for judicial misbehaviour and did

not exclude the judicial remedy available to the litigants

to ensure and enforce judicial integrity, that the right to

move the Supreme Court to enforce fundamental rights was

itself a fundamental right and that took within its sweep,

as inhering in it, the right to an impartial judiciary with

persons of impeccable integrity and character, without which

the fundamental right to move the court itself becomes

barren and hollow, that the court itself had the jurisdic-

tion - nay a duty to ensure the integrity and impartiality

of the members composing it and restrain any member who was

found to lack in those essential qualities and attainments

at which public confidence is built.

Another Writ Petition was filed by an individual by way

of a counter to the second prayer in the Writ Petitions

filed by the SubCommittee on Judicial Accountability and the

Supreme Court Bar Association. It was contended that till

the Inquiry Committee actually found the concerned Judge

guilty of charges, there should be no interdiction of his

judicial functions and that if such a finding was recorded

then thereafter till such time as the Motion for the presen-

tation of the Address for the removal of the Judge was

disposed of by the Houses of Parliament--which should not be

delayed beyond 180 days--the President may ask the Judge

concerned to recuse from judicial functions.

Another Writ Petition was also filed by a practising

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Advocate challenging the constitutional validity of the

Judges (Inquiry) Act, 1968 as ultra vires Articles 100, 105,

118, 121 and 124(5) of the Constitution of India and seeking

a declaration that the' Motion presented by 108 Members of

Parliament for the removal of the Judges

5

had lapsed with the dissolution of the Lok Sabha. The peti-

tioner also sought the quashing of the decision of the

Speaker admitting the Motion, on the ground of denial of

opportunity of being heard to the concerned Judge before the

admission of Motion and constitution of the Committee by

Speaker.

A Transfer Petition was filed seeking the withdrawal by

the Supreme Court to itself from the Delhi High Court the

Writ Petition filed in the High Court, where reliefs were

similar to those prayed for in the Writ Petition filed by

the practising Advocate. The Writ Petition was directed to

be withdrawn to the Supreme Court and was heard along with

other Writ Petitions.

1t was contended on behalf of the petitioners in these

Writ Petitions that before taking a decision to admit the

motion and constituting a Committee for investigation, it

was incumbent upon the Speaker, as a minimum requirement of

natural justice, to afford an opportunity to the Judge of

being heard since such a decision had momentous consequences

both to the Judge and to the judicial system as a whole and

that any politically motivated steps to besmear a Judge

would not merely affect the Judge himself but also the

entire system of administration of justice and therefore it

would greatly advance the objects and purposes of Judges

(inquiry) Act, 1968 if the Judge concerned himself was given

such a hearing; that the Speaker had acted contrary to

Constitutional practice, that the manner in which he had

admitted the motion smacked of malafides and since the

Speaker had not entered appearance and denied the allega-

tions, he must be deemed to have admitted them; that having

regard to the nature of the area the decision of the Court

and its writ is to operate in, the Court should decline to

exercise its jurisdiction, and that any decision rendered or

any writ issued might, ultimately become futile and infruc-

tuous as the constitution of and investigation by the com-

mittee were not, nor intended to be, an end by themselves

culminating in any independent legal consequence, but only a

proceeding preliminary to and preceding the deliberations of

the House on the motion for the presentation of an address

to the President for the removal of a Judge, which was

indisputably within the exclusive province of the Houses of

Parliament over which courts exercised no control or juris-

diction.

On behalf of the Union of india it was contended that a

combined reading of Articles 107, 108 and 109 would lead

irresistibly to the conclusion that upon dissolution of the

House, all bills would

6

lapse subject only to the exception stipulated in Article

108, that on first principle also it required to be accepted

that no motion should survive upon the dissolution of the

House unless stipulated otherwise under the Rules of proce-

dure and conduct of business; the doctrine of lapse was a

necessary concomitant of the idea that each newly constitut-

ed House was a separate entity having a life of its own

unless the business of the previous House was carried over

by the force of statute or rules of procedure and that the

question whether a motion lapsed or not was to be decided on

the basis of the provisions of law guiding the matter and

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the House itself was not its final arbiter and the Court

alone had jurisdiction to examine and pronounce on the law

of the matter.

Disposing of the cases, this Court,

HELD: By majority Per Ray. J. (for himself, Venkatacha-

liah, Verma and Agrawal, J J)

1.1 Where there is a written Constitution which consti-

tutes the fundamental and in that sense a "higher law" and

acts as a limitation upon the Legislature and other organs

of the State as grantees under the Constitution, the usual

incidents of parliamentary sovereignty do not obtain and the

concept is one of 'limited Government'. Judicial review is

an incident of and flows from this concept of the fundamen-

tal and the higher law being the touchstone of the limits of

the powers of the various organs of the State which derive

power and authority under Constitution and that the judicial

wing is the interpreter of the Constitution and, therefore,

of the limits of authority of the different organs of the

State. In a federal set-up, the judiciary becomes the guard-

ian of the Constitution.The inter- pretation of the Consti-

tution as a legal instrument and its obligation is the

function of the Courts. It is emphatically the province and

duty of the judicial department to say what the law is. [51

G-H, 52A, D]

1.2 In interpreting the constitutional provisions con-

cerning the judiciary and its independence the Court should

adopt a construction which strengthens the foundational

features and the basic structure of the Constitution. Rule

of law is a basic feature of the Constitutional fabric and

is an integral part of the constitutional structure. Inde-

pendence of the judiciary is an essential attribute of Rule

of law. [31 D]

1.3 In construing the Constitutional provisions, the law and

7

procedure for removal of Judges in other countries afford a

background and a comparative view. The solution must, of

course, be found within our own Constitutional Scheme. But a

comparative idea affords a proper perspective for the under-

standing and interpretation of the Constitutional Scheme.

[31 G-H]

Barringtons Case [1830]; Terrell v. Secretary of State

for the Colonies and Another, [1953I 2 QB 482, referred to.

Constituent Assembly Debates Vols. I to VI @ pp 899,900

Vol. VIII @ pp. 243-262, referred to.

Halsbury's Laws of England, 4th Ed. Vol. p 1108; She-

treet 'Judges on Trial' (1976); pp. 404-405; Rodney Brazier

'Constitutional Texts' (1990) pp. 606-607; Gall 'The Canadi-

an Legal System' (1983); pp. 184-186, 189; Lane's Commentary

on The Australian Constitution (1986) p. 373; Mclelland

'Disciplining Australian Judges' (1990) 64 ALJ 388, at p.

403; Henry J. Abraham.' The Judicial Process, 3rd Ed. p. 45;

Robert J. Janosik: Encyclopeadia of the American Judicial

System, Vol II pp. 575 to 578; "The Impeachment of the

Federal Judiciary" Wrisley Brown Harvard Law Review 1912-

1913 684 at page 698; 'The Judicial Process in Comparative

Perspective' (Clarendon Press-Oxford 1989 at page 73);

(Erskine May's "The Law, Privileges, Proceeding and Usage of

Parliament" (Twenty-first Edition London Butterworths 1989);

M.N. Kaul and S.L. Shakdher in Practice and Procedure of

Parliament", referred to.

2.1 It is not correct to say that the question whether a

motion has lapsed or not was a matter pertaining to the

conduct of the business of the House, of which the House was

the sole and exclusive master, and that no aspect of the

matter was justiciable before a Court. [29 C ,53 G]

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2.2 The question whether the motion has lapsed is a

matter to be pronounced upon on the basis of the Constitu-

tion and the relevant rules. [53 E]

2.3 On such interpretation of the Constitutional provi-

sions as well as the Judges (Inquiry) Act, 1968, the Courts

retain jurisdiction to declare that a motion for removal of

Judge does not lapse on dissolution of the House. [53F-G]

Bradlaugh v. Gossett, [18841 12 Q.B.D. 271, distinguished.

8

A.K. Gopalan v. The State of Madras, |1950] SCR 88

Special Reference Case, [1965] 1 SCR 413, referred to.

Barton v. Taylor, [1886] 11 AC 197, Rediffuson (Hong

Kong) Ltd. v. Attorney General of Hong Kong, [1970I AC 1136,

referred to.

3.1 The constitutional process for removal of a Judge

upto the point of admission of the motion, constitution of

the Committee and the recording of findings by the Committee

are not, strictly, proceedings in the Houses of Parliament.

The Speaker is a statutory authority under the Act. Upto

that point the matter cannot be said to remain outside the

Court's jurisdiction. [66 E]

3.2 The scheme of Articles 124(4) and (5) is that the

entire process of removal is in two parts - the first part,

under clause (5) from initiation to investigation and proof

of misbehaviour or incapacity is covered by an enacted law,

Parliament's role being only legislative as in all the laws

enacted by it, the second part under clause (4) is in Par-

liament and that process commences only on proof of misbeha-

viour or incapacity in accordance with the law enacted under

clause (5). Thus, the first part is entirely statutory,

while the second part alone is the parliamentary process.

[61 D]

3.3 The context and setting in which clause (5) appears

along with clause (4) in Article 124 indicate its nature and

distinguish it from Articles 118, 119 and 121, all of which

relate to procedure and conduct of business in Parliament.

[61 B-C]

3.4 The validity of law enacted by the Parliament under

clause (5) of Article 124 and the stage upto conclusion of

the inquiry in accordance with that law, being governed

entirely by statute, would be open to judicial review as the

parliamentary process under Article 124(4) commences only

after a finding is recorded that the alleged misbehaviour or

incapacity is proved in the inquiry conducted in accordance

with the law enacted under clause (5). For this reason, the

argument based on exclusivity of Parliament's jurisdiction

over the process and progress of inquiry under the Judges

(Inquiry) Act, 1968 and, consequently, exclusion of this

Court's jurisdiction in the matter at this stage does not

arise. [59 G-H, 60 A]

4.1 Article 121 suggests that the bar on discussion in

Parliament with respect to the conduct of any Judge is

lifted 'upon a

9

motion for presenting an address to the President praying

for the removal of a Judge as hereinafter provided'. The

words 'motion' and 'as hereinafter provided' are obvious

references to the motion for the purpose of clause (4) of

Article 124 which, in turn, imports the concept of "proved"

misbehaviour or incapacity. What lifts the bar under Article

121 is the 'proved' misbehaviour or incapacity. Clause (5)

of Article 124 provides for an enactment of law for the

purpose of investigation and proof of misconduct or incapac-

ity preceding the stage of motion for removal on the ground

of 'proved' misbehaviour or incapacity under clause (4). [56

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H, 57 A-B]

4.2 An allegation of misbehaviour or incapacity of a

Judge has to be made, investigated and found proved in

accordance with the law enacted by the Parliament under

Article 124 (5) without the Parliament being involved upto

that stage; on the misbehaviour or incapacity of a Judge

being found proved in the manner provided by that law a

motion for presenting an address to the President for remov-

al of the Judge on that ground would be moved in each House

under Article 124(4); on the motion being so moved after the

proof of misbehaviour or incapacity and it being for pre-

senting an address to the President praying for removal of

the Judge, the bar on discussion contained in Article 121 is

lifted and discussion can take place in the Parliament with

respect to the conduct of the Judge; and the further conse-

quences would ensue depending on the outcome of the motion

in a House of Parliament. If, however, the finding reached

by the machinery provided in the enacted law is that the

allegation is not proved, the matter ends and there is no

occasion to move the motion in accordance with Article

124(4). [57 G-H, 58 A-B]

4.3 Thus prior proof of misconduct in accordance with

the law made under Article 124(5) is a condition precedent

for the lifting of the bar under Article 121 against dis-

cussing the conduct of a Judge in the Parliament. Article

124(4) really becomes meaningful only with a law made under

Article 124(5), without which, the constitutional scheme and

process for removal of a Judge remains inchoate. [66 F]

4.4 The bar in Article 121 applies to discussion in

Parliament but investigation and proof of misconduct or

incapacity cannot exclude such discussion. This indicates

that the machinery for investigation and proof must neces-

sarily be outside Parliament and not within it. In other

words, proof which involves a discussion of the conduct of

the Judge must be by a body which is outside the limita-

10

tion of Article 121. The policy appears to be that the

entire stage upto proof of misbehaviour or incapacity,

beginning with the initiation of investigation on the alle-

gation being made, is governed by the law enacted under

Article 124(5) and in view of the restriction provided in

Article 121, that machinery has to be outside the Parliament

and not within it. Parliament neither has any role to play

till misconduct or incapacity is found proved nor has it any

control over the machinery provided in the law enacted under

Article 124(5). Parliament comes in the picture only when a

finding is reached by that machinery that the alleged misbe-

haviour or incapacity has been proved. The Judges (Inquiry)

Act, 1968 enacted under article 124(5) itself indicates that

the Parliament so understood the integrated scheme of Arti-

cles 121, 124(4) and 124(5). The general scheme of the Act

conforms to this view. [58 H-59 A-D]

4.5 It is not the law enacted under Article 124(5) which

abridges or curtails the parliamentary process or exclusivi-

ty of its jurisdiction, but the Constitutional Scheme itself

which by enacting clauses (4) and (5) simultaneously indi-

cated that the stage of clause (4) is reached and the proc-

ess thereunder commences only when the alleged misbehaviour

or incapacity is proved in accordance with the law enacted

under clause (5). It is only then that the need for discuss-

ing a Judge's conduct in the Parliament arises and, there-

fore, the bar under Article 121 is lifted. [60 D-E]

5.1 If the motion for presenting an address for removal

is envisaged by Articles 121 and 124(4) 'on ground of proved

misbehaviour or incapacity', it presupposes that misbeha-

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viour or incapacity has been proved earlier. This is more so

on account of the expression 'investigation and proof' used

in clause (5) with specific reference to clause (4), indi-

cating that 'investigation and proof' of misbehaviour or

incapacity is not within clause (4) but within clause (5).

Use of the expression 'same session' in clause (4) without

any reference to session in clause (5) also indicates that

session of House has no significance for clause (5) i.e.,

'investigation and proof' which is to be entirely governed

by the enacted law and not the parliamentary practice which

may be altered by each Lok Sabha. [61 F-H]

5.2 The significance of the word 'proved' before the

expression 'misbehaviour or incapacity' in clause (4) of

Article 124 is also indicated when the provision is compared

with Article 317 providing for removal of a member of the

Public Service Commission. The expression in clause (1) of

Article 317 used for describing the ground

11

of removal is 'the ground of misbehaviour' while in clause

(4) of Article 124, it is, 'the ground of proved misbeha-

viour or incapacity'.

[62 A]

5.3 Use of the word 'may' in clause (5) indicates that

for the 'procedure for presentation of address' it is an

enabling provision and in the absence of the law, the gener-

al procedure or that resolved by the House may apply but the

'investigation and proof' is to be governed by the enacted

law. The word 'may' in clause (5) is no impediment to this

view. When a provision is intended to effectuate a right --

here it is to effectuate a constitutional protection to the

Judges under Article 124(4) -- even a provision as in Arti-

cle 124(5) which may otherwise seem merely enabling becomes

mandatory. The exercise of the power is rendered obligatory.

The use of the word 'may' does not necessarily indicate that

the whole of clause (5) is an enabling provision leaving it

to the Parliament to decide whether to enact a law even for

the investigation and proof of the misbehaviour or incapaci-

ty or not. [62 D, 62 G, 63 E-F]

State of Uttar Pradesh v. Joginder Singh, [1964] 2 SCR

197 at 202; Punjab Sikh Regular Motor Service, Moudhapara

v. The Regional Transport Authority, Raipur & Anr., [1966] 2

SCR 221, referred to.

Erederic Guilder ,Julius v. The Right Rev. The Lord

Bishop of Oxford,' the Rev. Thomas Tellusson Carter,

[1879-80] 5 A.C. 214 at 244, referred to.

5.4 Similarly, use of word 'motion' to indicate the

process of investigation and proof in the Judges (Inquiry)

Act, 1968, because the allegations have to be presented to

the 'Speaker' does not make it 'motion in the House' not-

withstanding use of that expression in Section 6. Otherwise,

section 6 would not say that no further step is to be taken

in case of a finding of 'not guilty'. It only means that

when the allegation is not proved, the Speaker need not

commence the process under clause (4) which is started only

in case it is proved. The Speaker is, therefore, a statutory

authority under the Act chosen because the further process

is parliamentary and the authority to make such a complaint

is given to Members of Parliament. Moreover, the enactment

under Article 124(5) cannot be a safe guide to determine the

scope of Article 124(5). [64 A-C]

6.1 Article 124(5) does not operate in the same field as

Article 118 relating to procedure and conduct of business in

Parliament.

[61C]

12

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6.2 Article 118 is a general provision conferring on

each House of Parliament the power to make its rules of

procedure. These rules are not binding on the House and can

be altered by the House at any time. A breach of the rules

amounts to an irregularity and is not subject to judicial

review in view of Article 122. [64 G]

6.3 Article 124(5) is in the nature of a special provi-

sion intended to regulate the procedure for removal of a

Judge under Article 124(4), which is not a part of the

normal business of the House but is in the nature of special

business. It covers the entire field relating to removal of

a Judge. Rules made under Article 118 have no application in

this field. [64 H, 65 A]

6.4 Article 124(5) has no comparison with Article 119.

Articles 118 and 119 operate in the same field viz., normal

business of the House. It was, therefore, necessary to

specifically prescribe that the law made under Article 119

shall prevail over the rules of procedure made under Article

118. Since Articles 118 and 124(5) operate in different

fields; a provision like that contained in Article 119 was

not necessary and even in the absence of such a provision, a

law made under Article 124(5) will override the rules made

under Article 118 and shall be binding on both the Houses of

Parliament. A violation of such a law would constitute

illegality and could not be immune from judicial scrutiny

under Article 122(1). [65 B-C]

7.1 -Neither the doctrine that dissolution of a House

passes a sponge over parliamentary slate nor the specific

provisions contained in any rule or rules framed under

Article 118 of the Constitution determine the effect of

dissolution on the motion for removal of a Judge under

Article 124, because Article 124(5) and the law made there-

under exclude the operation of Article 118 in this area. [49

F]

Purushothaman Nambudiri v.. The State of Kerala, [1962]

Suppl. 1 SCR 753, referred to.

7.2 The law envisaged in Article 124(5) is parliamentary

law which is of higher quality and efficacy than rules made

by the House for itself under Article 118. Such a law can

provide against the doctrine of lapse. [50 H]

7.31n the constitutional area of removal of a Judge, the

law made under Article 124(5) must be held to go a little

further and to exclude the operation of the Rules under

Article 118 and no ques-

13

tion of repugnance could arise to the extent the field is

covered by the law under Article 124(5). [51 C]

State of Punjab v. Sat Pal Dang & Ors, [1969] 1 SCR 478,

relied on.

8.1 The Judges (Inquiry) Act, 1968 reflects the consti-

tutional philosophy of both the judicial and political

elements of the process of removal. The ultimate authority

remains with the Parliament in the sense that even if the

Committee for investigation records a finding that the Judge

is guilty of the charges, it is yet open to the Parliament

to decide not to present an address to the President for

removal. But if the Committee records a finding that the

Judge is not guilty then the political element in the proc-

ess of removal has no further option. The law is, indeed, a

civilised piece of legislation reconciling the concept of

accountability of Judges and the values of judicial inde-

pendence. The provisions of the Judges (Inquiry) Act do not

foul with the constitutional scheme. [65 B-C, 64 C]

8.2 The Speaker, while admitting a motion and constitut-

ing a Committee to investigate the alleged grounds of misbe-

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haviour or incapacity does not act as part of the House. The

House does not come into the picture at this stage. The

provisions of the Judges (Inquiry) Act, 1968 are not uncon-

stitutional as abridging the powers and privileges of the

House. The Judges (Inquiry) Act, 1968 is constitutional and

is intra vires. [66 G-H]

9.1 The Judges (Inquiry) Act, 1968 is law enacted under

Article 124(5) which provides against doctrine of lapse.

9.2 The effect of sections 3(1) and (2) and 6(2) of the

Judges (Inquiry) Act, 1968, is that the motion should be

kept pending till the committee submits its report and if

the committee finds the Judge guilty, the motion shall be

taken up for consideration. Only one motion is envisaged

which will remain pending. No words of limitation that the

motion shall be kept pending subject to usual effect of

dissolution of the House can or should be imported. [50 G]

9.3 Section 3 of the Act applies to both the Houses of

Parliament. The words "shall keep the motion pending" cannot

have two different meanings in the two different contexts.

It can only mean that the consideration of the motion shall

be deferred till the report

14

of the Committee implying that till the happening of that

event the motion will not lapse. Therefore, such a motion

does not lapse with the dissolution of the House of Parlia-

ment. [51 D]

10. At the stage of the provisions when the Speaker

admits the motion under section 3 of the Judges (Inquiry)

Act, a Judge is not, as a matter of right, entitled to a

notice. The scheme of the statute and the rules made there-

under by necessary implication, exclude such a right. But

that may not prevent the Speaker, if the facts and circum-

stances placed before him indicate that hearing the Judge

himself might not be inappropriate, might do so. But a

decision to admit the motion and constitute a Committee for

investigation without affording such an opportunity does

not, by itself and for that reason alone, vitiate the deci-

sion. [68 E-G]

11.1 It is true that society is entitled to expect the

highest and most exacting standards of propriety in judicial

conduct, and any conduct which tends to impair public confi-

dence in the efficiency, integrity and impartiality of the

court is indeed forbidden. But, the proposition that, apart

from the constitutional machinery for removal of a Judge,

the judiciary itself has the jurisdiction and in appropriate

cases a duty to enquire into the integrity of one of its

members and restrain the Judge from exercising judicial

functions is beset with grave risks. The court would then

indeed be acting as a tribunal for the removal of a Judge

and is productive of more problems than it can hope to

solve. [69 C, 70 H]

Sampath Kumar & Ors. v. Union of India & Ors, [1985] 4

S.C.C. 458, referred to.

Corpus Juris Secundum, (VoI.48A), referred to.

11.2 The relief of a direction to restrain the Judge

from discharging judicial functions cannot be granted. The

entire Constitutional Scheme, including the provisions

relating to the process of removal of a Judge are to be

taken into account for the purpose of considering this

aspect. Since the Constitutional Scheme is that the Judge's

conduct cannot be discussed even in the Parliament which is

given the substantive power of removal, till the alleged

misconduct or incapacity is 'proved' in accordance with the

law enacted for this purpose, it is difficult to accept that

any such discussion on the conduct of the Judge or any

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evaluation or inference as to its

15

merit is permissible according to law elsewhere except

during investigation before the Inquiry Committee constitut-

ed under the statute for this purpose. Therefore, it is

difficult to accept that there can be any right in anyone

running parallel with the Constitutional Scheme for this

purpose contained in clauses (4) and (5) of Article 124 read

with Article 121. No authority can do what the Constitution

by necessary implication forbids. [71 B-F]

11.3 The question of propriety is, however, different

from that of legality. Whether the Judge should continue to

function during the intervening period is to be covered by

the sense of propriety of the concerned Judge himself and

the judicial tradition symbolised by the views of the Chief

Justice of India. It should be expected that the Judge would

be guided in such a situation by the advice of the Chief

Justice of India, as a matter of convention, unless he

himself decided as an act of propriety to abstain from

discharging judicial functions during the interregnum. It is

reasonable to assume that the framers of Constitution had

assumed that a desirable convention would be followed by a

Judge in that situation which would not require the exercise

of a power of suspension.[It would also be reasonable to

assume that the Chief Justice of India is expected to find a

desirable solution in such a situation to avoid embarrass-

ment to the concerned Judge and to the Institution in a

manner which is conducive to the independence of judiciary

and should the Chief Justice of India be of the view that in

the interests of the institution of judiciary it is desira-

ble for the Judge to abstain from judicial work till the

final outcome under Article 124(4), he would advise the

Judge accordingly, and the concerned Judge would ordinarily

abide by the advice of the Chief Justice of India. All this

is, however, in the sphere of propriety and not a matter of

legal authority to permit any court to issue any legal

directive t? the Chief Justice of India for this purpose.

[71 G, 72 A, C-E]

12. Even on the allegations made in the petition and

plea of malafides which require to be established on strong

grounds no such case is made out. A case of malafides cannot

be made out merely on the ground of political affiliation of

the Speaker either. That may not be a sufficient ground in

the present context. At nil events, as the only statutory

authority to deal with the matter, doctrine of statutory

exceptions or necessity might be invoked. [74 B-C]

13. The law as to standing to sue in public interest actions

has

16

undergone a vast change over the years and liberal standards

for determining locus standi are now recognised. The present

matter is of such nature and the constitutional issues of

such nature and importance that it cannot be said that

members of the Bar, and particularly, the Supreme Court Bar

Association have no locus standi in the matter. An elaborate

re-survey of the principles and precedents over again is

unnecessary. Suffice it to say that from any point

view, the petitioners satisfy the legal requirements of the

standing to sue. [74 E-F]

S.P. Gupta & Ors. etc. etc. v. Union of India & Ors.

etc. etc., [1982] 2 SCR 365, relied on.

14. Certain submissions advanced on the prayer seeking

to re.strain the judge from functioning till the proceedings

of the committee were concluded lacked as much in propriety

as in dignity and courtesy with which the Judge is entitled.

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While the members of the bar may claim to act in public

interest, they have, at the same time, a duty of courtesy

and particular care that in the event of the charges being

found baseless or insufficient to establish any moral turpi-

tude, the Judge does not suffer irreparably in the very

process. The approach should not incur the criticism that it

was calculated to expose an able and courteous Judge to

public indignity even before the allegations were examined

by the forum constitutionally competent to do so. The level

of the debate both in and outside the Court should have been

more decorous and dignified. Propriety required that even

before the charges are proved in the only way in which it is

permitted to be proved, the Judge should not be embarrassed.

The constitutional protection to Judges is not for their

personal benefit; but is one of the means of protecting the

judiciary and its independence and is, therefore, in the

larger public interest. Recourse to constitutional methods

must be adhered to if the system were to survive. [74 G, 75

A-C]

15.1 The interpretation of the law declared by this

Court that a motion under section 3(2) of the Judges (In-

quiry) Act, 1968, does not lapse upon the dissolution of the

House is a binding declaration. If the law is that the

motion does not lapse, there can be no occasion for the

House to say so at any time and it is erroneous to assume

that the Houses of Parliament would act in violation of the

law, since the interpretation of the law is within the

exclusive power of the courts. [76 E]

17

25.2 If the House is not required to' consider this

question since the parliamentary process can commence only

after a finding of guilt being proved, the further question

of a futile writ also does not arise. The point that the

House can decide even after a finding of guilt that it would

not proceed to vote for removal of the Judge is not germane

to the issue since that is permissible in the Constitutional

Scheme itself under Article 124(4), irrespective of the fact

whether Article 124(5) is a mere enabling provision or a

constitutional limitation on the exercise of power under

Article 124 (4). [60 B-C]

15.3 The Union Government has sought to interpret the

legal position for purpose of guiding its own response to

the situation and to regulate its actions on the Speaker's

decision. That understanding of the law is unsound. [76 G]

15.4 No specific writ of direction need issue to any

authority. Having regard to the nature of the subject matter

and the purpose it is ultimately intended to serve, all that

is necessary is to declare the legal and correct constitu-

tional position and leave the different organs of the State

to consider matters falling within the orbit of their re-

spective jurisdiction and powers. [76 H, 77 A]

15.5 In the circumstances, the question of Court de-

clining to exercise its jurisdiction on the ground that the

Judgment rendered and Writ issued by it would become infruc-

tuous does not arise. [31 A-C, 77 A]

Per Sharma, J. (dissenting);

1.1 On a close examination of the Constitution, it is

clear that a special pattern has been adopted with respect

to the removal of the members of the three organs of the

State. The Executive, the Legislature and the Judiciary--at

the highest level, and this plan having been consciously

included in the Constitution, has to be kept in mind in

construing its provisions. The approach should be that when

a question of removal of a member of any of the three wings

at the highest level-i.e. the President; the Members of the

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Parliament and the State Legislatures; and the Judges of the

Supreme Court and the High Courts-arises, it is left to an

organ other than where the problem has arisen, to be decid-

ed. Consistent with this pattern, Clause (4) of Article 124

in emphatic terms declares that a Judge of the Supreme Court

or the High Court shall not be removed from his office

except on a special majority of the Members of each House of

Parliament. Both the Executive and the Judiciary

18

are thus excluded in this process. The scheme cannot be

construed as lack of trust in the three organs of the State.

There are other relevant considerations to be taken into

account while framing and adopting a written Constitution,

which include the assurance to the people that the possibil-

ity of a subjective approach clouding the decision on an

issue as sensitive as the one under consideration, has been

as far eliminated as found practicable in the situation. And

where this is not possible at all, it cannot be helped, and

has to be reconciled by application of the doctrine of

necessity, which is not attracted in the instant case. [81

F-H, 82 D-E,F-G]

A11 Party Hill Leaders Conference v. M.A. Sangma, [1978]

1 SCR 393 at 411, referred to.

The Federalist: Hamilton, referred to.

1.2 There cannot be two opinions on the necessity of an

independent and fearless judiciary in a democratic country

like ours, but it does not lead to the further conclusion

that the independence of judiciary will be under a threat,

unless the matter of removal of Judges, even at the highest

level, is not subjected to the ultimate control of Courts.

Great care was taken by the framers of the Constitution to

this aspect and the matter was examined from every possible

angle, before adopting the scheme as laid down. So far as

the district courts and subordinate courts are concerned,

the control has been vested in the High Court, but when it

came to the High Court and Supreme Court Judges, it was

considered adequate for the maintenance of their independ-

ence to adopt and enact the Constitution as it is found now.

There is no reason to doubt the wisdom of the Constituent

Assembly in entrusting the matter exclusively in the hands

of the Parliament and there is no ground for suspicion that

the Members of Parliament or their representatives, the

Speaker and the Chairman, shall not be acting in the true

spirit of the Constitutional provisions. The mandate of the

Constitution is binding on all. [100 B-E]

2.1 The exercise of power under clause (4) was not made

conditional on the enactment of a law under clause (5), and

the reason for inserting clause (5) in Article 124 was

merely for elaborating the provisions. Clause (4) does not

state that the misbehaviour or the incapacity of the Judge

will have to be proved only in accordance with a law to be

passed by the Parliament under clause (5) Clause (4) would

continue to serve the purpose as it does now, without any

19

amendment if clause (5) were to be removed from the Consti-

tution today. There is no indication of any limitation on

the power of the Parliament to decide the manner in which it

will obtain a finding on misbehaviour or incapacity for

further action to be taken by it. Clause (5) merely enables

the parliament to enact a law for this purpose, if it so

chooses. [88 E, 88 A, 89 A]

2.2 The word 'may' has been sometimes understood in the

imperative sense as 'shall', but ordinarily it indicates a

choice of action and not a command. In the present context,

there is no reason to assume that it has been used in its

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extraordinary meaning. [88 F]

3. The object of Article 121 is to prevent any discus-

sion in Parliament with respect to the conduct of a Judge of

the Superior Courts, except when it cannot be avoided. The

Article, accordingly, prohibits such a discussion except

upon a motion for presenting an address to the President for

removal of a Judge. [89 B]

4.1 The expression "motion" has not been defined in the

Judges (Inquiry) Act, 1968. The Lok Sabha Rules framed under

Article 118 of the Constitution deal with "motions". There

are separate rules of procedures for conduct of business

adopted by the Rajya Sabha. Section 3(1) of the Act states

that if a notice of "motion" is given for presenting an

address to the President for the removal of a Judge, the

Speaker or the Chairman, as the case may be, after consult-

ing such persons as he deems fit, as also such relevant

materials which may be available to him either admit the

"motion" or refuse to admit the same. The manner in which

this section refers to "motion" in the Act for the first

time without a definition or introduction clearly indicates

that it is referring to that "motion" which is ordinarily

understood in the context of the two Houses of Parliament

attracting their respective rules. Section 3 does not speci-

fy as to how and to whom the notice of "motion" is to be

addressed or handed over and it is not quite clear as to how

the Speaker suddenly comes in the picture unless the Lok

Sabha Rules are taken into account. Therefore, the provi-

sions of the Act have to be read alongwith some of the Lok

Sabha Rules. Rules 185, 186 and 137 which are relevant for

the purpose should be treated to be supplementary to the

Act. [90 D-G, 91 B]

4.2 Sub-section (2) of Section 3, which is of vital

importance in the present context, says that if the "motion"

referred to in subsection (1) is admitted, the Speaker

"shall keep the motion pending"

20

and constitute a Committee for investigation into the alle-

gations. 191 C]

4.3 The situs where the "motion" is pending is almost

conclusive on the issue whether the House is seized of it or

not. The Act does not leave any room for doubt that the

"motion" remains pending in the House and not outside it.

This is corroborated by the language used in proviso to

Section 3(2) which deals with cases where notices of "mo-

tion" under Section 3(1) are given on the same date in both

Houses of Parliament. It says that in such a situation, no

Committee shall be constituted unless the "motion" has been

"admitted in both Houses", and where such "motion" has been

admitted "in both Houses", the Committee shall be constitut-

ed jointly by the Speaker and the Chairman. It is not an

inadvertent reference in the Act of the "motion" being

pending in the House: the Act and the Rules made thereunder

envisage and deal with a "motion" which is admitted in the

House and remains pending there to be taken up again when

the date is fixed by the Speaker on receipt of the report

from the Committee. The language throughout the Act has been

consistently used on this premise and is not capable of

being ignored or explained away. [91 D, G-H, 92 A, C-D]

4.4 The scope of the Act and the Rules is limited to the

investigation in pursuance of a "motion" admitted by the

Speaker. At the conclusion of the investigation the Commit-

tee has to send the report to the Speaker (or the Chairman

as the case may be) along with a copy of the original Mo-

tion. If the finding goes against the Judge, the Motion, the

same original Motion, together with the report would be

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taken up for consideration by the House where the Motion is

pending, and the address and the Motion would be put to vote

together in each House of Parliament. What the Act and the

Rules contemplate is the original Motion to be taken up for

consideration by the House, and if this Motion is held to

have exhausted itself on admission by the Speaker nothing

remains on which the Act would operate. [92 E, G]

4.5 Thus, the concept of the original Motion being pending

in the House, to be taken up for debate and vote on the

receipt of the report of the Committee, is the life and soul

of the Act, and if that Motion disappears nothing remains

behind to attract the Act. This idea runs through the entire

Act and the Rules, and cannot be allowed to be replaced by a

substitute. The existence of a Motion pending in the House

is a necessary condition for the application of

21

the Act. Bereft of the same, the Act does not survive. It

is, therefore, not permissible to read the Act so as to mean

that the House is not seised of the Motion and that it does

not have anything to do with the inquiry pending before the

Committee, until the report is received. If clauses (4) and

(5) of Article 124 are construed otherwise the Act will have

to be struck down as ultra vires, or in any event, inopera-

tive and infructuous and, on this ground alone, the Writ

Petitions are liable to be dismissed. [92 H, 93 A-B]

5.1 The mandate of the Constitution against discussion

on the conduct of a Judge in the House is for everybody to

respect, and it is the bounden duty of the Speaker to en-

force it. He has to ensure that Article 121 is obeyed in

terms and spirit. The pendency of the motion in the House

cannot be a ground to violate Article 121, and the apprehen-

sion that if the motion is held to be pending in the House,

on its admission, the object of Article 121 would be defeat-

ed is misconceived. [93 C, F]

5.2 The wider proposition that the House was seized of

the matter so effectively as to entitle every member to

demand a discussion in the House at any stage will not only

violate Article 121, but also offend the provisions of the

1968 Act. It is not correct to assume that if the right of

the individual member to insist on immediate discussion is

denied, the consequence will be to deprive the Parliament of

the control of the motion. The Speaker may consult other

persons before admitting the motion, and while so doing he

may consult the members of the House also, but without

permitting a discussion in the House. The consultation,

which the Act permits, is private in nature, not amounting

to a public discussion, while the object of Article 121 is

to prevent a public debate. It may also be open to the

Speaker to consult the House on a legal issue which can be

answered without reference to the conduct of Judge in ques-

tion, as for example, the issue involved in the instant

case, whether on account of dissolution of the old House the

Motion has lapsed and the Committee of Inquiry is defunct.

What is prohibited is not every matter relating to the

removal of a Judge; the bar is confined to a discussion with

respect to the conduct of a Judge in the discharge of his

duties. [95 E-H, 96A]

5.3 There is no justification for interpreting such

portion of the 1968 Act, which directed or declared the

initial motion admitted by the Speaker to remain pending in

the House, as creating legal fiction limited for the purpose

of ensuring that the bar under Article 121 was not lifted

prematurely. [96 B]

22

East End Dwellings Co. Ltd. And Finsbury Borough Coun-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 79

cil: 1952 A.C. 109, referred to.

5.4 A close reading of the entire Act indicates that the

language therein was consciously chosen to make the House

seized of the matter, and consequently it became necessary

to include the provision directing the motion to remain

pending for the purpose of preventing a premature discus-

sion. The Act has, thus, very successfully respected both

Articles 124 and 121 in their true spirit, by neatly harmo-

nising them. [97 B]

5.5 Parliament is in control of the matter from the very

beginning till the end. By the introduction of the Speaker

and the requirement of a large number of members of either

House to initiate the matter, the House is brought in con-

trol of the proceeding through its representative, the

Speaker or the Chairman. The ground of proved misbehaviour

or incapacity is necessary only for putting the matter to

vote in the House under clause (4), and is not a condition

precedent for initiating a proceeding and taking further

steps in this regard. ]97 G-H, 98 A]

5.6 It is a well established practice for a larger body

to entrust investigations to a smaller body for obvious

practical reasons, and such an exercise cannot be characte-

rised as indulging in abnegation of authority. It could have

asked a Parliamentary Committee to enquire into the allega-

tions or employed any other machinery for the purpose. [98

D]

5.7 So long as the statute enables the House to maintain

its control either directly or through the Speaker, the

entrustment of the investigation does not amount to abdica-

tion of power. It is a case where the Parliament has taken a

decision to respect the verdict of the Committee in favour

of the Judge, consistently with clause (4) and no fault can

be found. 199 B]

State of Uttar Pradesh v. Batuk Deo Pati Tripathi and

Anr., [1978] 2 SCC 102, referred to.

5.8 The House, which is in control of the proceeding is

entitled to take all necessary and relevant steps in the

matter, except discussing the conduct of the Judge until the

stage is reached and the bar under Article 121 is lifted. If

it is held that the Committee is an independent statutory

body not subject to the control of the House

23

directly or through the Speaker, then the Act may be ren-

dered unworkable. Besides, this would lower the dignity of

the Chief Justice of India by providing a machinery consist-

ing of 5 or 4 Judges to sit in ,appeal over him. If the

Committee is held to be functioning under the supervision

and control of the Parliament, with a view to aid it for the

purpose of a proceeding pending in the House, it will be the

Parliament which will be in control of the proceeding and

not the Committee. [99 E-F, H]

6.1 When even after a verdict against the Judge is

returned by the Committee, the Parliament, or for that

matter any of the two Houses can refuse to vote in favour of

the Motion for removal of a Judge, and the Court would not

have any jurisdiction to interfere in the matter, it is not

conceivable, that at the intermediate stage of investigation

the Court has got the power to intervene. This is because,

if the control of the House continues on the proceeding

throughout, which can be exercised through the Speaker, it

cannot be presumed that the Court has a parallel jurisdic-

tion, which may result in issuance of contradictory direc-

tions. Besides, the Court cannot be expected to pass orders

in the nature of step in aid, where the final result is

beyond its jurisdiction. Any order passed or direction

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issued by this Court may result in merely an exercise in

futility, and may cause a situation, embarrassing both for

the highest judicial and legislative authorities of the

country. The Constitution cannot be attributed with such an

intention. [101 A-C]

6.2 In the circumstances the courts, including this

Court, do not have any jurisdiction to pass any order in

relation to a proceeding for removal of a Judge of the

superior courts. [101 C]

7. No opinion is expressed on the controversy whether

the Motion lapsed or not on the dissolution of the earlier

House, as the issue is for the Lok Sabha to decide. [102 E]

8. This Court cannot pass any order whether permanent

or temporary on the prayer that the respondent No. 3, the

concerned Judge, should not be allowed to exercise his

judicial powers. [102 F]

9.1 Although the powers of State have been distributed

by the Constitution amongst the three limbs, i.e. the Legis-

lature, the Executive and the Judiciary, the doctrine of

Separation of Powers has not been strictly adhered to and

there is some overlapping of powers in the gray areas.

[80F-G]

24

Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 347 at p.

415, referred to.

9.2 Generally, questions involving adjudication of

disputes are amenable to the jurisdiction of the courts, but

there are exceptions, not only those covered by specific

provisions of the Constitution in express terms, but others

enjoying the immunity by necessary implication arising from

established jurisprudential principles involved in the

Constitutional scheme. [81 C]

10. It is permissible to take into consideration the

entire historical background of the provisions of the Con-

stitution and the Act as aid to interpretation. [84 C]

Bengal Immunity Company v. The State of Bihar, [1955] 2

SCR 603 at 632 & 633; B. Prabhakar Rao v. State of Andhra

Pradesh, [1985] Suppl 2 SCR 573, referred to.

Heydon's case: 76 E.R. 637; Eastman Photographic Materi-

al Company v. Comptroller General of Patents, LR. [1898]

A.C. 571, referred to.

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 491 of

1991. (Under Article 32 of the Constitution of India)

WITH

TRANSFER PETITION (CIVIL) No, 278 of 1991. (Under Article

139-A(i) of the Constitution of India)

WITH

WRIT PETITION (CIVIL) Nos. 541,542 & 560/91

G. Ramaswamy, Attorney General, Altar Ahmad, Addl.

Solicitor General, Shanti Bhushan, Ram Jethmalani, P.P. Rao,

Kapil Sibal, P.R.Krishnan, Ms. Indira Jaisingh, Ashok Desai,

Hardev Singh, P.S. Poti, Danial Latifi, Rajinder Sachhar,

M.K. Ramamurthy, R.K. Garg, S.K. Dholakia, Santosh Hegde,

V.N. Ganpule, Tapas Ray, N.B. Shetye, Jayant Bhushan, Mohan

Rao, Prashant Bhushan, Ms. Kamini Jaiswal, A.K. Srivastava,

Manoj Wad, Ms. Rashmi Kathpalia, Ms. Nina Dikshit, E.M.S.

Anam, Rajiv K. Garg, N.D. Garg, G.D. Sharma, Sudhir Walia,

A.M. Khanwilkar, Mrs. Anil Katiyar, Ms. A. Subhashini, R.S.

Suri, M. Veerappa, K.R. Nambiar, Harish Uppal (appeared in

person) and P.H. Parekh for the appearing parties.

The Judgment of the Court was delivered by

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B.C. RAY, J. These writ petitions raise certain consti-

tutional issues of quite some importance bearing on the

construction of Articles 121 and 124 of the Constitution of

India and of the "The Judges

25

(Inquiry) Act, 1968" even as they in the context in which

they are brought, are somewhat unfortunate.

Notice was given by 108 members of the 9th Lok Sabha,

the term of which came to an end upon its dissolution, of a

Motion for presenting an Address to the President for the

removal of Mr. Justice V.Ramaswami of this Court. On 12th

March, 1991, the motion was admitted by the then Speaker of

the Lok Sabha who also proceeded to constitute a Committee

consisting of Mr. Justice P.B. Sawant, a sitting Judge of

this Court, Mr. Justice P.D. Desai, Chief Justice of the

High Court of Bombay, and Mr. Justice O. Chinappa Reddy, a

distinguished jurist in terms of Section 3(2) of The Judges

(Inquiry) Act, 1968.

The occasion for such controversy as is raised in these

proceedings is the refusal of the Union Government to act in

aid of the decision of the Speaker and to decline to notify

that the services of the two sitting Judges on the Committee

would be treated as "actual-service" within the meaning of

Para 11(b) (i) of Part D of the II Schedule to the Constitu-

tion. It is said that without such a notification the two

sitting Judges cannot take time off from theft court-work.

The Union Government seeks to justify its stand on its

understanding that both the motion given notice of by the

108 Members of the Lok Sabha for presenting an Address to

the President for the removal of the Judge concerned as well

as the decision of the Speaker of the 9th Lok Sabha to admit

the motion and constitute a Committee under the provisions

of the Judges (Inquiry) Act have lapsed with the dissolution

of the 9th Lok Sabha.

Constitutional issues of some importance, therefore,

arise as to the constitutional and the legal position and

status of a Motion for the removal of a Judge under a law

made pursuant to Article 124(5) of the Constitution and as

to whether the Doctrine of Lapse would apply to such a

Motion upon the dissolution of the Lok Sabha and whether, in

view of the contention that such motions for removal, im-

peachment etc. of holders of high constitutional offices are

in their very nature politically introduced, debated and

decided in the Houses of Parliament and not elsewhere, the

matters arising out of or relating to a Motion for removal

of a Judge in either House of the Parliament are at all

justiciable before courts of law. It is also-urged that even

if these issues have some degree of adjudicative disposition

and involve some justiciable areas, the Court should decline

to exercise jurisdiction as its decision and its writ might

become infructous in view of the fact that in the ultimate

analysis, the final arbiter whether at all any Address is to

be presented rests exclusively with the Houses of Parliament

and which, are wholly outside the purview of the Courts.

26

2. The foregoing serves to indicate broadly the com-

plexities of the constitutional issues on which the Court is

invited to pronounce and, as in all constitutional litiga-

tion, the views inevitably tend to reflect a range of policy

options in constitutional adjudications and, in some meas-

ure, value judgments.

3. Writ Petition No. 491 of 1991 is by a body called

the "SubCommittee on Judicial Accountability" represented by

its convener, Sri Hardev Singh, a Senior Advocate of this

Court. Petitioner-body claims to be a Sub-Committee consti-

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tuted by an "All India Convention on Judicial Accountabili-

ty" "to carry forward the task of implementing the resolu-

tions of the conventions". Writ Petition No. 541 of 1991 is

by the Supreme Court Bar Association represented by its

Honorary Secretary. The Bar Association seeks to prosecute

this petition "in the larger public interest and in particu-

lar in the interests of litigant public". The two prayers

common to both the petitions are, first, that the Union of

India be directed to take immediate steps to enable the

Inquiry Committee to discharge its functions under the "The

Judges (inquiry) Act, 1968" and, secondly, that during the

pendency of the proceedings before the Committee the learned

Judge should be restrained from performing judicial func-

tions and from exercising Judicial powers.

4. Writ Petition No. 542 is by a certain Harish Uppal.

This writ petition is more in the nature of a counter to the

second prayer in the WP No. 541/1991 and WP No. 491/1991.

Petitioner, Sri Harish Uppal says that till the Inquiry

Committee actually finds the learned Judge guilty of the

charges there should be no interdict of his judicial func-

tions and that if such a finding is recorded then thereafter

till such time as the Motion for the presentation of the

Address for the removal of the Judge disposed of by the

Houses of Parliament-which petitioner says should not be

delayed beyond 180 days --- the President may ask the Judge

concerned to recuse from judical functions.

In Writ Petition No. 560/1991 brought by Shyam Ratan

Khandelwal, a practising Advocate, the constitutional valid-

ity of the Judges (Inquiry) Act, 1968 is challenged as ultra

vires Articles 100, 105, 118, 121 and 124(5) of the Consti-

tution of India. It also seeks a declaration that the Motion

presented by 108 Members of Parliament for the removal of

the Judge has lapsed with the dissolution of the 9th Lok

Sabha. It also seeks quashing of the decision of the Speaker

admitting the Motion on the ground that an opportunity of

being heard had been denied to the Judge before the Speaker

admitted the Motion and proceeded to constitute a Committee.

On the question of the validity of The Judges (Inquiry) Act,

27

1968 the petitioner contends that the law properly construed

vests the powers of admitting a Motion and of constituting a

Committee under Section 3 in the Speaker in his capacity as

Speaker of the House and subject to the well known and well

settled principles of law. procedure and conventions of the

Houses of Parliament and the statute does not depart from

these principles. On the contrary, the statute admits of a

construction which accords with the powers and privileges of

the House and that the Motion even at that stage of admis-

sion would require to be debated by the House. It is urged

that if that be' the construction, which the language of the

statute admits then there should be no vice of unconstitu-

tionality in it. But if the statute is construed to vest

such power exclusively in the Speaker, to the exclusion of

the House, the statute, on such constitution would be uncon-

stitutional as violative of Articles 100 (1), 105,118 and

121 of the Constitution.

4. Transfer Petition No. 268/1991 is for the withdrawal

by this Court to itself from the High Court of Delhi, the

Writ Petition (Civil) No. 1061/1991 in the Delhi High Court

where reliefs similar to those prayed for by Sri Khandelwal

in WP (Civil) No. 560/1991 are sought. The prayer for trans-

fer has not yet been granted; only the further proceedings

in the High Court are stayed. But full-dress arguments in

all these matters have been heard. It is appropriate that

this writ petition should also be formally withdrawn and

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finally disposed of along with the present batch of cases.

All that is necessary is to make a formal order withdrawing

WP (Civil) No. 1061/1991 from the Delhi High Court, which we

hereby do.

5. Certain allegations of financial improprieties and

irregularities were made against Justice V. Ramaswami, when

he was the Chief Justice of the High Court of Punjab &

Haryana. There were certain audit reports concerning certain

items of purchases and other expenditure. The then Chief

Justice of India, Justice Sabyasachi Mukharji, took note of

the reports in this behalf and of representations submitted

to him in this behalf and advised Justice Ramaswami to

abstain from discharging judicial functions until those

allegations were cleared. Thereafter, a Committee of three

Judges was constituted by the then Chief Justice of India,

to look into the matter and to advise him whether on the

facts Justice Ramaswami might be embarrassed in discharging

judicial functions as a Judge of this Court. The Committee

tendered its advice to the Chief Justice. It noted that

Justice Ramaswami had declined to acknowledge the jurisdic-

tion of any Committee to sit in judgment over his conduct.

The Committee, accordingly, abstained from an inquiry on the

charges but. on an evaluation of the matter before it,

expressed the view that as long as the charges of

28

improper conduct involving moral turpitude were not estab-

lished in the various enquiries then pending the operation

of the constitutional warrant appointing him a Judge of the

Court could not be interdicted.

Thereafter, in February, 1991, 108 Members of the Lok

Sabha presented a Motion to the Speaker of the 9th Lok Sabha

for Address to the President for the removal of the learned

Judge under Article 124(4) of the Constitution read with the

provisions of the Judges (inquiry) Act, 1968. On 12.3.1991

the Speaker of the Lok Sabha in purported exercise of his

powers under Section 3 of the said Act, admitted the Motion

and constituted a Committee as aforesaid to investigate the

grounds on which the removal was prayed for.

Soon after the decision of the Speaker to admit the

Motion and constitute a Committee to investigate the charges

was made, the term of the Ninth Lok Sabha came to premature

end upon its dissolution. The petitioners question the

legality of the Speaker's order and assert that, at all

events, the Motion had lapsed with the dissolution of the

House. This contention is supported by the Union of India.

They say that the effect of dissolution of the Ninth Lok

Sabha is to "pass a sponge across the Parliamentary slate"

and all pending motions lapse. The motion for removal, it is

urged, is no exception.

6. 'We have heard Sri Shanti Bhushan, Sri Ram Jethmala-

ni, Sri P.P. Rao, Sri R.K. Garg and Ms. Indira Jaising -

learned senior counsel in support of the prayers in writ

petitions Nos. 491 and 541 of 1991 filed by the Sub-Commit-

tee on Judicial Accountability and the Supreme Court Bar

Association respectively; Sri G. Ramaswamy, learned Attorney

General for the Union of India; Sri Kapil Sibal for the

petitioners in writ petition No. 560/91 and transfer peti-

tion No. 278/91. Sri Harish Uppal, petitioner in-person in

writ petition No. 542/91 has filed his written submissions.

The arguments of the case covered a wide constitutional

scheme relating to the removal of members of the superior

judiciary in India and tO the problems of justiciability of

disputes arising therefrom. We shall refer to the arguments

when we assess the merits of these contentions.

7. The contentions urged at the hearing in support of

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the petitions which seek enforcement of Speaker's decision

as well as those urged in support of the petitions which say

that the Motion has lapsed can be summaried thus:

29

Contention A:

The motion for removal of the Judge moved by

108 Members of Parliament as well as the

purported decision of the Speaker to admit

that motion and to constitute a committee to

investigate into the grounds on which removal

is sought have lapsed upon the dissolution of

the 9th Lok Sabha. The general rule is that no

House of Parliament can seek to bind its

successor. All pending business at the time of

dissolution of House lapses. A motion for

removal of a judge is just another motion and

perishes with the expiry of the term or the

earlier dissolution of the House.

The question whether the motion for the remov-

al of the judge has lapsed or not is a matter

pertaining to the conduct of the business of

the House of which the House is the sole and

exclusive judge. No aspect of the matter is

justiciable before Court.

Contention B:

The constitutional process of removal of a

Judge, both in its substantive and procedural

aspects, is a political process within the

exclusive domain of the Houses of Parliament.

The conduct of the Speaker in regulating the

procedure and business of the House shall not

be subject to the jurisdiction of any Court.

The Speaker of the Lok Sabha in the exercise

of his powers under the Judges (Inquiry) Act,

1%8, acts in an area outside the courts'

jurisdiction. There is nothing in the Judges

(Inquiry) Act, 1968 which detracts from this

doctrine of lapse. On the contrary, the provi-

sions of the 'Act' are consistent with this

Constitutional position.

Contention C:

Article 124(5) pursuant to which the Judges

(Inquiry) Act, 1968, is a mere enabling provi-

sion. Prior 'proof of misconduct is not a

condition precedent before the bar under

Article 121 against the discussion of the

conduct of the Judge is lifted.

Contention D:

The action of the Speaker in admitting the

notice of motion without reference to the

House and constituting a committee for inves-

tigation without the support of the decision

of the

30

House is ultra vires Articles 100(1), 105, 121

and the rules made under Article 118 of the

Constitution.

The provisions of the Judges (inquiry) Act;

1968 can be read consistently with the Consti-

tutional Scheme under the aforesaid Articles.

But if the provisions of the Act are so con-

strued as to enable the Speaker to exercise

and perform those powers and functions without

reference to and independently of the House,

then the provisions of the Act would be uncon-

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stitutional.

Contention E.

The decision of the Speaker to admit the

motion and to constitute a committee for

investigation is void for failure to comply

with the rules of natural justice as no oppor-

tunity, admittedly, was afforded to the Judge

of being heard before the decision was taken.

Contention F.'

The process of removal by means of a motion

for address to the President is a political

remedy. But the fundamental right to move the

Supreme Court for enforcement of fundamental

rights take within its sweep the right to

access to a court comprising of Judges of

sterling and unsullied reputation and integri-

ty which is enforceable. This judicial remedy

is independent of the constitutional remedy

and that the court has jurisdiction to decide

as to its own proper constitution. In exercise

of this jurisdiction it should examine the

grounds of the alleged misbehaviour and re-

strain the Judge from judicial functioning.

Contention G.'

The Speaker's decision is vitiated by mala

fides and oblique and collateral motives.

Contention H.'

The Supreme Court Bar Association and the

Sub-Committee on Judicial Accountability - the

petitioners in Writ Petition No. 491 of 1991

and Writ Petition No. 541 of 1991, respective-

ly, do not have the requisite standing to sue

and the writ petitions are, accordingly, not

maintainable at their instance.

31

Contention L'

At all events, even if the Speaker is held to

be a statutory authority acting under the

Statute and not as part of the proceedings or

business of the Lok Sabha and is amenable to

the jurisdiction of the Court, any judgment

rendered and writ issued by this Court have

the prospect of being infructuous in view of

the undisputed constitutional position that,

in the ultimate analysis, the decision to

adopt or turn down the motion is exclusively

within the power of the House and the Court

would have no jurisdiction over that area.

The Court would, therefore, decline to exercise its

jurisdiction on grounds of infructuousness.

8. Before we discuss the merits of the arguments it is

necessary to take a conspectus of the constitutional provi-

sions concerning the judiciary and its.independence. hi

interpreting the constitutional provisions in this area the

court should adopt a construction which strengthens the

foundational features and the basic structure of the Consti-

tution. Rule of law is a basic feature of the Constitution

which permeates the whole of the Constitutional fabric and

is an integral part of the constitutional structure. Inde-

pendence of the judiciary is an essential attribute of Rule

of law. Articles 124(2) and 217(1) require, in the matter of

appointments of Judges, consultation with the Chief Jus-

tices. These provisions also ensure fixity of tenure of

office of the Judge. The Constitution protects the salaries

of Judges. Article 121 provides that no discussion shall

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take place in Parliament with respect to the conduct of any

Judge of the Supreme Court or of a High Court in the dis-

charge of his duties except upon a motion for presenting an

address to the President praying for the removal of the

Judge as hereinafter provided. Articles 124(4) and 124(5)

afford protection against premature determination of the

tenure. Article i 24(4) says "a Judge of the Supreme Court

shall not be removed from his office except" etc. The

grounds for removal are again limited to proved misbehaviour

and incapacity. It is upon a purposive and harmonious con-

struction and exposition of these provisions that the issues

raised in these petitions are to be resolved.

9. In construing the Constitutional provisions the law

and procedure for removal of Judges in other countries

afford a background and a comparative view. The solution

must, of course, be found within our own Constitutional

Scheme. But a comparative idea affords a proper perspective

for the understanding and interpretation of the Constitu-

tional Scheme.

32

10. In England a Judge of the superior courts can be

removed only on presentation of an address by both the

Houses of Parliament to the Crown. Proceedings may be initi-

ated by a petition to either House of Parliament for an

address to the Crown or by a resolution for an address to

the Crown to appoint a committee of inquiry into the conduct

of the person designated, though preferably they should be

commenced in the House of Commons. Sometimes [as in Barring-

tons Case (1830)], a Commission of Inquiry is appointed and

the matter is considered in the light of the report of the

said Commission. The motion for removal is considered by the

entire House. In case any enquiry is to be conducted into

the allegations, it is either referred to a Select Committee

of the House or to the Committee of the whole House Opportu-

nity is given to the Judge whose conduct is impugned to make

defence on public inquiry.

The report of the Committee and its recommendation are

placed before the House where the matter is debated.(See:

Halsbury's Laws of England, 4th Ed. Vol. p. 1108).

11. This process has been subjected to following criticism -

(i) legislative removal is coloured by

political partisanship inasmuch as the initia-

tion of the process as well as the ultimate

result may be dictated by political considera-

tions and process of fact-finding and deliber-

ations also suffer from party spirit.

(ii) the government has considerable control

not only on the ultimate result of the pro-

ceedings but also on parliamentary time which

enables them to prevent motions for an address

from being adopted if it suits them.

(iii) the legislative procedure is not

adequate for adjudicative fact finding; and

(iv) since Parliament is the master of its

own procedure, the procedures and rules of

evidence appropriate to judicial proceedings

which would seem to be required in a case of

judicial removal are unlikely to be allowed in

Parliament. (See: Shetreet - Judges on Trial

(1976) p. 405-407)

12. The Justice Sub-Committee on the Judiciary consid-

ered the question whether the existing process for removal

by address of the Houses should be substituted for or sup-

plemented by a new mechanism designed to meet changing needs

and conditions. The Sub-Committee, in its 1972 Report,

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answered the said question in the affirmative and has pro-

posed a new procedure for removal of judges. The Sub-Commit-

tee has recommended the establishment of an adhoc judicial

commission to be ap-

33

pointed by the Lord Chancellor, if he decides that the

question of removing a judge is to be investigated. The

Commission should include a majority of, and in any event

not less than three, persons who hold or have held high

judicial office. Members of Parliament or persons who hold

or have held any political appointment would be excluded.

Upon completing its inquiry the ad hoc Commission shall

report the facts and recommend whether the question of

removal of a judge should be referred to the Judicial Com-

mittee of the Privy Council. If the Commission so recommend-

ed, the Privy Council would consider the matter and if it

concluded that the judge should be removed, it would so

advise Her Majesty. [see: Shetreet 'Judges on Trial',

(1976); pp. 404-405].

Dr. Shetreet has suggested a via-media and has favoured

the establishment of a Judicial Commission for removal (but

not for discipline short of removal) along the lines sug-

gested by the Sub-Committee but has expressed the view that

the existing process of address should also be preserved.

[See: Shetreet 'Judges an Trial', (1976); p. 409]. Similar

view has been expressed by Margaret Brazier. (See: Rodney

Brazier 'Constitutional Texts' (1990) pp.606-607).

13. In Canada, under section 99(1) of the Constitution

Act of 1867, the judges of the superior courts hold office

during good behaviour, and are removable by the Governor-

General on address of the Senate and House of Commons. On

petition for removal submitted in 1868 and 1874 the matter

was referred to a Select Committee of the House. In a third

case in 1874 the judge died before any action could be taken

on motion for appointment of a Select Committee. Recently in

1966-67, a motion for removal of Mr. Justice Leo Landreville

of the Supreme Court of Ontario was moved and in that con-

nection a Royal Commission consisting of Mr. Justice Ivan C.

Rand, a retired judge of the Supreme Court of Canada was

appointed under the Inquiries Act R. S. C. 1952 C. 154 to

conduct an enquiry. After considering the report of the said

Commission, a Joint Committee of the Houses recommended

removal but the judge resigned while Parliament was prepar-

ing for his removal by joint address. Thereafter, Judges Act

was enacted in 1971 whereby Canadian Judicial Council has

been created. The functions of the said Council as set out

in s. 39(2) include making the enquiries and the investiga-

tion of complaints or allegations described in s. 40. Sec-

tion 40 provides that the council may conduct an enquiry to

determine whether a judge of superior, district or county

court should be removed from office and it may recommend to

the Minister of Justice of Canada that a Judge should be

removed from office. The grounds on which such a recommenda-

tion can be made are set out in s. 41(2) of the Act and they

are: (a) age or infirmity, Co) having been

34

guilty of misconduct, (c) having failed in the due execution

of his office, or (d) having been placed, by his conduct or

otherwise, in a position incompatible with the due execution

of his office. (Gall 'The Canadian Legal System' ( 1983 );

pp. 184-186).

In 1'982 the matter of Mr. Justice Thomas Berger, a

Judge of the Supreme Court of British Columbia, was investi-

gated by the Canadian Judicial Council prompted by certain

remarks made by the judge. The Council concluded that the

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public expression of political views in the nature of those

made by Mr. Justice Berger constituted an "indiscretion",

but that they were not a basis for a recommendation that he

be removed from office and on the basis of the said recom-

mendation, no further action was taken though Mr. Justice

Berger tendered his resignation as a judge a few months

later. (See: Gall.' The Canadian Legal System, (1983) p.

189)

14. Under section 72(ii) of the Commonwealth of Austra-

lia Constitution Act, 1900, the justices of the High Court

and of the other courts created by the Parliament cannot be

removed except by the GovernorGeneral-in-Council, on an

address from both Houses of the Parliament in the same

session praying for such removal on the ground of proved

misbehavior or incapacity. Similar provisions are contained

in the Constitutions of the States with regard to removal of

Judges of State Courts.

Proceedings were initiated for removal of Mr. Justice

Murphy of the High Court of Australia in 1984 under section

72(ii) of the Commonwealth of Australia Constitution Act. In

connection with those proceedings at first a select Commit-

tee of the Senate was appointed to enquire and report into

the matter. It consisted of six senators drawn from three

political parties. The Committee by majority decision (3: 2,

one undecided) found no conduct amounting to misbehaviour

under section 72(ii). In view of the split vote a second

Committee of four senators from the same three political

parties was established and it was assisted by two retired

judges - one from the Supreme Court of Western Australia and

the other from Supreme Court of the Australian Capital

Territory and the said Committee recorded its finding but

the judge did not appear before either of the committees.

The judge was also prosecuted before the Central Criminal

Court of New South Wales and was found guilty of an attempt

to pervert the course of justice but the said verdict was

set aside by the Court of Criminal Appeal. Fresh trial was

held where under the judge was found not guilty. Thereafter,

an ad hoc legislation, namely, Parliamentary Commission of

Inquiry Act, 1986 was enacted by the Commonwealth Parliament

and a Commission consisting of three retired judges respec-

tively of Supreme Court of Victoria, Supreme Court of Aus-

tralia Capital Territory

35

and the Federal Court and Supreme Court of South Australia

was constituted to investigate into the allegations of

misbehaviour. Before the said commission could give its

report, the judge became gravely ill and the Act was re-

pealed [Lane's Commentary on the Australian Constitution,

(1986) p. 373].

15. In one other case, proceedings for removal were

initiated against Mr. Justice Vasta of the Supreme Court of

Queensland and for that purpose, the Queensland Legislature

enacted the Parliamentary (Judges) Commission of Inquiry

Act, 1988 whereby a commission comprised of three retired

judges respectively of the High Court of Australia, Supreme

Court of Victoria and the Supreme Court of New South Wales

was constituted.

16. In Australia, there has been criticism of the exist-

ing procedure with regard to removal of judges both by

judges as well as by lawyers. Mr. Justice L.J. King, Chief

Justice of the Supreme Court of South Australia, has ob-

served:

"The concept of removal by an address of both

Houses of Parliament is itself the subject of

a good deal of criticism. Curiously, common

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criticism which are made are contradictory.

One criticism is that the necessity for the

involvement of the legislature ensures that

the procedure will not be used and that the

judges therefore have a practical immunity

from removal. Removal by this means is cer-

tainly extremely tare. That may be, however,

because in the countries in which this proce-

dure prevails, conditions are such that a

judge who commits a serious act of judicial

misconduct would certainly resign. That con-

sideration, together with the fact that stand-

ards of judicial conduct are generally very

high in those countries, renders removal by

the legislature a rarity. The opposite criti-

cism, however, is that there is no established

procedure for the trial of a judge whose

removal by the legislature is sought. It is

assumed that the legislature would itself

institute some form of inquiry at which the

judge would be able to defend himself against

the accusations, but that would be a matter

for the legislature in each case. There are

some who fear that a parliamentary majority,

encouraged by inflamed public feeling about an

unpopular judicial decision, might some day

act to remove a judge, without due process.

It is at least questionable whether the system

of removal by an address of both Houses of

Parliament accords to a judge the

30

degree of security which is required by the

concept of judicial independence.

[ 'Minimum Standards of Judicial Independence'

1984 (58) ALl 340, at p. 345]

Similarly, Mr. Justice M.H. Mclelland of the Supreme

Court, of New South Wales has expressed the view:

"In lieu of measures of the kinds already

discussed, some permanent, and preferably

Australia-wide, machinery should be provided

by legislation for the purpose of establishing

an effective procedure for the determination

by a judicial tribunal

- of the existence of misbehaviour or

incapacity which could warrant a judge's

removal from office. The design of that ma-

chinery should be such as to produce as little

damage to judicial independence, public confi-

dence in the judicial system, and the authori-

ty of the courts, as is consistent with its

effective operation. It should also be such as

to ensure to a judge both procedural fairness

and protection from public vilification or

embarrassment pending the making of the deter-

mination".

(Disciplining Australian Judges, (1896) 64 ALJ 688 at p.

401)

Mr. Justice Mclelland has also suggested that the tribu-

nal should be subject to the supervisory jurisdiction of,

and an appeal should lie from the tribunal to, the High

Court of Australia. In this context, he has stated:

"Furthermore, the protection of judicial

tenure and independence which the Act of

Settlement provisions were intended to effect,

has in the intervening period lost a great

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deal of its strength. In 1701, the Crown, the

House of Lords and the House of Commons were

three powerful but relatively independent

entities. It was necessary for a judge to

incur the displeasure of all three concurrent-

ly to be at risk of removal under the parlia-

mentary address procedure. The subsequent

development of the party system and cabinet

government (especially with modern ideas of

strict party discipline) has radically altered

the position. In modern times, the executive

government and the lower house (and frequently

the upper house, where there is one) are

effectively under the control of a single

individual or cohesive group, so that now a

judge may be at risk of removal under the

parliamentary address procedure if

37

he or she were to incur the sole displeasure

of that individual or group."

(Disciplining Australian Judges, (1990) 64 ALJ

3 8 8 at p. 402-3)

Sir Maurice Byers, former Solicitor General of the

Commonwealth has also spoken in the same vein:

"A federal system involves a tension between

the High Court and the Parliament and the

executive. Recent years have seen this in-

crease because interpretations of the Consti-

tution have become party dogma. The Court's

constitutional decisions are seen by many of

the uninformed and quite a few of the informed

as bearing upon party political questions.

When, as in the case of Mr. Justice Murphy and

to a much less degree Sir Garfield Barwick, a

former political figure, hands down a judgment

he attracts the animus and often the abuse of

some in Parliament. Section 72 of the Consti-

tution leaves him exposed to the attack of his

opponents and the often doubtful support of

his former friends. Whether Parliament may

itself decide the judicial question of his

fitness for office or "proved misbehaviour or

incapacity" is at the least doubtful. But the

Court should not be exposed to this hazard, A

Commission of Judges whose membership rotates

is called for." (From the other side of the

Bar Table: An Advocates' view of the Judici-

ary, (1987) 10 University of New South Wales

Law Journal 179 at p. 185).

A Constitutional Commission was set up in Australia for

suggesting reforms in the Commonwealth Constitution. The

said Commission has recommended that provision should be

made by amendment to the Commonwealth Constitution for (a)

extending the security of tenure provided by section 72 to

all judges in Australia, and (b) establishing a national

judicial tribunal to determine whether facts found by that

tribunal are capable of amounting to misbehaviour or inca-

pacity warranting removal of a judge from office.

(Mclelland 'Disciplining Australian Judges ', (1990) 64

ALJ 388, at p. 403)

17. In the United States, the removal of a judge of the U.S.

Supreme or a Federal judge is governed by the provisions of

the U.S. Constitution wherein Article 11(4) provides for the

removal from office of the President, Vice-President and all

civil officers of the United States on impeachment for, and

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conviction of, treason, bribery or other high crimes

38

and misdemeanours. Impeachment may be voted by a simple

majority of the members of the House of Representatives,

there being a quorum on the floor and trial is then held in

the Senate, which may convict by a vote of two-thirds of the

members of the Senate present and voting, there being a

quorum. With regard to state judiciary, the process of

removal is governed by the State Constitutions. Majority of

the States follow the federal pattern an4 provide for im-

peachment as the normal process of removal of appointed

judges. In some States, provision is made for removal by an

address of the Governor to both Houses of legislature or by

a joint resolution of the legislature. In some States, the

removal power is vested in the State Supreme Courts while in

some states, special courts are provided to hear removal

charges. In the State of New York, the Court is known as the

Court on the judiciary. (See Henry J. Abraham: The Judicial

Process, 3rd Ed. p.45).

For judicial administration at the national level, there

is Judicial Conference of the United States which consists

of the Chief Justices of the United States, the chief judges

of each of the eleven numbered circuits and of the District

of Columbia and federal circuits but also, since 1957, a

district judge representative from each circuit with the

exception of the federal circuit, which lacks a trial-court

tier. By an Act of the Congress passed in 1932 (incorporated

in Title 28 of the U.S. Code) the Judicial Conference is

charged with the duty to make a comprehensive survey of the

condition of business in the courts; to prepare plans for

assignment of judge,' to or from circuits or districts where

necessary; and to submit suggestions and recommendations to

the various courts to promote uniformity of management

procedures and the expeditious conduct of court business.

The work of the Judicial Conference is performed in special

committees which include the special committee on judicial

ethics. Another Act of Congress passed in 1939 makes provi-

sion for a judicial council for each circuit composed of

circuit judges of the circuit who is empowered to make all

necessary orders for the effective and expeditious adminis-

tration of the business of the courts within its circuit.

The mandate of the Judicial Councils embraces the business

of the judiciary in its institutional sense (administration

of justice), such as avoiding of loss of public esteem and

confidence in respect to the court system, from the actions

of a judge or other person attached to the courts. The

Judicial Councils have exercised the power of review of

allegations of misconduct on the part of court personnel,

officers and judges. In view of the increased number of

judges, who can be removed only by the process of impeach-

ment, Congress has enacted the Judicial Councils Reform and

Judicial Conduct and Disability Act of 1980 whereby the

Judicial Councils have been explicitly empowered to receive

complaints about judicial

39

conduct opaquely described as "prejudicial to the effective

and expeditious administration of the business of the

courts, or alleging that such a Judge or magistrate is

unable to discharge all the duties of office by reason of

mental or physical disability." It prescribes an elaborate

judicilised procedure for processing such complaints within

the administrative system of the councils and the Judicial

Conference. Should a Council determine that the conduct

constitutes grounds for impeachment the case may be certi-

fied to the Judicial Conference of the United States which

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may take appropriate action and if impeachment is deemed

warranted, the Conference is empowered to transmit the

record and its determination to the House of Representa-

tives.

In so far as the States are concerned, all the fifty

States have central Institutions for disciplining their

judges and in each a variously constituted commission is

organised in either a single tier or in many tiers depending

on the perceived desirability of separating fact-finding

from judgment recommendation tasks. Commission recommenda-

tions are transmitted to the State Supreme Court for its

authoritative imprimatur, except in states where they are

received by legislatures that retain judicial removal power.

(See Robert J.Janosik Encyclopaedia of the American Judicial

System, Vol. II pp.575 to 578).

18. This study of the practice prevailing in the above-

mentioned countries reveals that in Canada, Australia and

the United States, the process of removal of a judge incor-

porates an investigation and inquiry into the allegations of

misconduct or incapacity against a judge by a judicial

agency before the institution of the formal process of

removal in the legislature. England is the only exception

where the entire process is in Parliament but there also

views are being expressed that it should be replaced by a

judicial process of investigation by a judicial tribunal

before the matter is taken up by the Houses of Parliament.

This is also the trend of the recommendations in the resolu-

tions adopted by the United Nations General Assembly and

international conferences of organisations of lawyers.

19. International Bar Association at its 19th Biennial

Conference held at New Delhi in October 1982 adopted Minimum

Standards of Judicial Independence. Paras 27 to 32 relating

to 'Judicial Removal and Discipline' are as under:

"27.The proceedings for discipline and removal

of judges should ensure fairness to the judge,

and adequate opportunity for hearing.

40

28. The procedure for discipline should be

held in camera. The judge may however request

that the heating be held in public, subject to

final and reasoned disposition of this request

by the Disciplinary Tribunal. Judgments in

disciplinary proceedings whether held in

camera or in public, may be published.

29. (a) The grounds for removal of judges

should be fixed by law and shall be clearly

defined.

(b) All disciplinary action shall be based

upon standards of judicial conduct promulgated

by law or in established rules of court.

30. A judge shall not be subject to removal

unless, by of a criminal act or through gross

or repeated neglect or physical or mental

incapacity, he has shown himself manifestly

unfit to hold the position of judge.

31. In systems where the power to discipline

and remove judges is vested in an institution

other than the Legislature, the tribunal for

discipline and removal of judges shall be

permanent and be composed predominantly of

members of the Judiciary.

32. The head of the court may legitimately

have supervisory powers to control judges on

administrative matters."

20. The First World Conference on the Independence of

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Justice held at Montreal on June 10, 1983 adopted a UniVer-

sal Declaration on the Independence of Justice. It relates

to international judges as well as national judges. The

following paragraphs deal with 'Discipline and Removal' in

relation to national judges:

"2.32 A complaint against a judge shall be

processed expeditiously and fairly under an

appropriate practice, and the judge shall have

the opportunity to comment on the complaint at

its initial stage. The examination of the

complaint at its initial stage shall be kept

confidential, unless otherwise requested by

the judge.

2.33 (a) The proceedings for judicial removal

or discipline, when such are initiated, shall

be held before a court or a board predominant-

ly composed of members of the judiciary and

selected by the judiciary.

(b) However, the power of removal may be

vested in the Legislature by impeachment or

joint address, preferably upon a recommenda-

tion of a court or board as referred to in

2.33(a).

41

[Explanatory Note: In countries where the

legal profession plays an indispensable role

in maintaining the rule of law and judicial

independence, it is recommended that members

of the legal profession participate in the

selection of the members of the court or

board, and be included as members thereof.]

2.34 All disciplinary action shall be based

upon established standards of judicial con-

duct.

2.35 The proceedings for discipline of judges

shall ensure fairness to the judge and the

opportunity of a full hearing.

2.36 With the exception of proceedings before

the Legislature, the proceedings for disci-

pline and removal shall be held in camera. The

judge may, however, request that the hearing

be held in public, subject to a final and

reasoned disposition of this request by the

Disciplinary Tribunal. Judgments in discipli-

nary proceedings, whether held in camera or in

public, may be published.

2.37 With the exception of proceedings before

the Legislature or in connection with them,

the decision of a Disciplinary Tribunal shall

be subject to appeal to a court.

2.38 A judge shall not be subject to removal

except on proved grounds of incapacity or

misbehaviour, rendering him unfit to continue

in office.

2.39 In the event that a court is abolished

judges serving in this court shall not be

affected, except for their transfer to another

court of the same status."

21. The Seventh United Nations Congress on the Preven-

tion of Crime and the Treatment of Offenders held at Milan

from August 26 to September 6, 1985 adopted the Basic Prin-

ciples on the Independence of the Judiciary. Paragraphs 17

to 20 dealing with 'Discipline, Suspension and Removal' are

as under:

"17.A charge or complaint made against a judge

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in his/her judicial and professional capacity

shall be processed expeditiously and fairly

under an appropriate procedure, The judge

shall have the right to a fair heating. The

examination of the matter at its initial stage

shall be kept confidential, unless otherwise

requested by the judge.

18. Judges shall be subject to suspension or

removal only for reasons of incapacity or

behaviour that renders them unfit to

42

discharge their duties.

19. All disciplinary, suspension or removal

proceedings shall be determined in accordance

with established standards of judicial con-

duct.

20. Decisions in disciplinary, suspension or

removal proceedings should be subject to an

independent review. This principle may not

apply to the decisions of the highest court

and those of the legislature in impeachment or

similar proceedings."

The Congress Documents were endorsed by the U.N. General

Assembly in its Resolution 40/32 on November 9, 1985 and

Resolution 40/ 146 on December 13, 1985. Resolution 40/146

dated December 13, 1985 of the General Assembly specifically

welcomed the Basic Principles on the Independence of the

Judiciary and invited Government "to respect them and to

take them into account within the framework of their nation-

al legislation and practice" (para 2).

22. Unlike the judges of the Superior courts in England,

the judges in the colonies did not enjoy the security of

tenure as guaranteed under the Act of Settlement, 1700 and

they held office at the pleasure of the Crown. (See: Terrell

v. Secretary of State for the Colonies and Another, 1953(2),

482). The position was not different in India till the

enactment of Government of India Act, 1935. In Clause (b) of

the proviso to sub-Section 2 of Section 200 of the said Act

which related to judges of the Federal Court, it was pre-

scribed that "a judge may be removed from his office by

order of the Governor-General on the ground of misbehaviour

or of infirmity of body or mind, if the Judicial Committee

of the Privy Council, on reference being made to them,

report that the judge ought on any such ground to be re-

moved". Similar provisions were made with regard to judges

of the High Court in Section 220. It would thus appear that

prior to the coming into force of the Constitution of India,

it was necessary to have a determination by a judicial body

about the alleged grounds of misbehaviour or infirmity of

mind and body before a judge of the Federal Court or High

Court could be removed. Does the Constitution seek to alter

this position in a way, as to exclude investigation and

proof of misbehaviour or incapacity by a judicial body and

to rest the power of removal including the investigation and

proof of misbehaviour or incapacity in Parliament alone.

23. Basically, the process of removal or impeachment of

a judge is a political process. A learned author in "The

Impeachment of the Federal

43

Judiciary:' [Wrisley Brown Harward Law Review 1912-1913 684

at page 698) says:

".... Thus an impeachment in this country,

though judicial in external form and ceremony.

is political in spirit. It is directed against

a political offence. It culminates in a polit-

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ical judgment. It imposes a political forfei-

ture. In every sense, say that of administra-

tion, it is a political remedy, for the sup-

pression of a political evil, with wholly

political consequences.

This results in no confusion of the political

and the judicial powers. The line of demarca-

tion is clearly discernible even through the

labyrinth of formal non-essentials under which

ingenious counsel in various cases have sought

to bury it. The judgment of the High Court of

Parliament upon conviction of an impeachment

automatically works a forfeiture of political

capacity; but this is simply an effect of the

judgment, which is to be distinguished from

the judgment itself..."

Mauro Cappelletti in 'The Judicial Process

in Comparative Perspective'[Clarendon Press-

Oxford 1989 at page 731 says:

"Two main features of this accountability type

can be identified; first, the fact that ac-

count has to be given to 'political' bodies,

ultimately to the legislative and/or the

executive branches by means of essentially'po-

litical', non-judicial processes; second, and

perhaps even more characteristically, the fact

that account has to be given not, or not

primarily, for 'legal' violations, but rather

for behaviour (and this might include private,

out-of-office behaviour) which is evaluated on

the basis of 'political' criteria.

Perhaps the best illustration of political

accountability can be found in the systems of

the common law tradition. In England, judges

(like any other officials) can be impeached

'before the House of Lords, at the suit of the

House of Commons', although this practice has

fallen into desuetude; moreover, higher court

judges can be 'removed from office by the

Crown on an address presented to Her Majesty

by both Houses of Parliament'. The idea behind

this 'address' procedure is that judges are

appointed 'during good behaviour', hence, they

can be removed upon breach of the condition.

Misbehaviour includes such situations as 'the

case of conviction upon an indictment for any

infamous offence of such a nature as to render

the

44

person unfit to exercise the office', but also

'improper exercise of the functions appertain-

ing to the office, or non-attendance, or

neglect of or refusal to perform the duties of

the office'. Of course the decision of the

Houses and the Crown can only be an essential-

ly political one, not a purely juridical

decision, even though we are informed that the

removal procedure is subject to some extent

'to the rules of natural justice'..."

24. But the Constitutional scheme in India seeks to

achieve a judicious blend of the political and judicial

processes for the removal of Judges. Though it appears at

the first sight that the.proceedings of the Constituent

Assembly relating to the adoption of. clauses, (4) and (5)

of Article 124 seem to point to the contrary and evince 'an

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intention to exclude determination by a judicial process of

the correctness of the allegations of misbehaviour or inca-

pacity on a more careful examination this is not the correct

conclusion. In the submissions of the learned counsel who

contend against the manifestation of an intention to bring

in a judicial element, reliance has been placed on the

proceedings of the Constituent Assembly dated July 29, 1947

relating to adoption of Clause 18 of the report of the Union

Constitution Committee relating to the Supreme Court. Shri

Alladi Krishnaswami Ayyar had moved the said clause subject

to modifications and conditions in the said clause which

related to appointment and removal of judges of Supreme

Court. It was provided that "a judge of the Supreme Court of

India shall not be removed from his office except by the

President on an address from both the Houses of Parliament

of the Union in the same session for such removal on the

ground of proved misbehaviour or incapacity. Further provi-

sion may be made by Federal law for the procedure to be

adopted in this behalf'. Shri K. Santhanam had moved an

amendment in the said Clause relating to removal of judges

and he wanted the last sentence about further provision

being made by Federal law for the procedure to be adopted in

that behalf, to be omitted. Shri M.Ananthasayanam Ayyanagar

proposed amendments suggesting two alternative clauses in

the place of the Clause with regard to removal of the

judges. In one clause, it was suggested that "a judge may be

removed from office on the ground of misbehaviour or infirm-

ity of mind or body by an address presented in this behalf

by both the Houses of the legislature to the President

provided that a committee consisting of not less than 7 High

Court Chief Justices chosen by the President, investigates

and reports that the judge on any such ground be removed".

The other alternative clause suggested by Shri M.Anantha-

sayanam Ayyangar was that "a judge of the Supreme Court may

be removed from office by the President on the ground of

misbehaviour or of infirmity of mind or body, if on refer-

ence being made to it (Supreme Court) by the President, a

special

45

tribunal appointed by him for the purpose from amongst

judges or exjudges of the High Courts or the Supreme Court,

report that the"'judge ought on any such grounds to be

removed." The Constituent Assembly adopted clause 18 with

the amendments as proposed by Shri Alladi Krishnaswami Ayyar

and rejected the amendments suggested by Shri M. Anantha-

sayanam Ayyangar. Shri Santhanam did not press his amendment

and it was withdrawn. There is no doubt that in the amend-

ments which were suggested by Shri M.Ananthasayanam Ayyan-

gar, it was provided that there-should be investigation into

the allegations of misbehaviour or infirmity by a committee

consisting of Chief Justices of the High Courts or the

special tribunal consisting of judges or ex-judges of the

High Court or the Supreme Court, but the rejection of the

said amendments moved by Shri Ayyangar does not mean that

the Constituent Assembly was not in favour of determination

about the correctness of such allegations by judicial body

because Shri Alladi Krishnaswami Ayyar, while moving Clause

18 had emphasised the word 'proved misbehaviour' and had

stated:

"While the ultimate power may rest with the

two Houses, the Clause provides that the

charges must be proved. How exactly to prove

the charges will be provided for in the Feder-

al law. We need not be more meticulous or more

elaborate, than the people who have tried a

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similar case in other jurisdictions. I chal-

lenge my friend to say whether there is any

detailed provision for the removal of judges

more than that in any other Constitution in

the world. The general principle is laid down

in the Constitution and later on the Federal

law will provide for adequate machinery and

that is the import of the clause"..... There

is sufficient safeguard in the reference

"proved misbehaviour" and we might make elabo-

rate and adequate provision for the way in

which ',he guilt could be brought home to a

particular judge in any Federal law that may

be passed but that is a different

matter"...... "But I do not think that in a

Constitution it is necessary to provide de-

tailed machinery as to the impeachment, the

charges to be framed against a particular

judge. To make a detailed machinery for all

these could be a novel procedure to be adopted

in any Constitution".

(Constituent Assembly Debates, vols. I to VI

at pp. 899-900)

25. Reference was also made to the debates of the Con-

stituent Assembly dated May 24, 1949 on Article 103 of the

Draft Constitution. Shri Tajamul Hnsain moved an amendment

in Clause (4) of Article 103 which related to the removal of

a judge of Supreme Court and suggested an amendment in the

said clause so as to provide that "a judge of the Supreme

46

Court shall not be removed from his office except by an

order of the President passed, after a Committee consisting

of all the judges of the Supreme Court had investigated the

charge and reported on it to the President and etc." The

said amendment was negatived by the Constituent Assembly.

(Constituent Assembly Debates, vol. VIII at pp. 243 and

262). The said amendment was similar to those moved by Shri

M. Ananthasayanam Ayyangar at the stage of adoption of

Clause 18 of the report of the Union Constitution Committee

noticed earlier. The reasons which were given by Shri Alladi

Krishnaswami Ayyar for opposing the said amendments would

apply to this amendment also.

26. The proceedings in the Constituent Assembly, there-

fore, do not give an indication that in adopting Clauses (4)

and (5) of Article 124 of the Constitution, the intention of

the Costituent Assembly was to exclude_ investigation and

proof of misbehavior or incapacity of the judge sought to be

removed, by a judicial body. Having regard to the views

expressed by Shri Alladi Krishnaswami Ayyar, who was a

member of the Drafting Committee, while opposing the amend-

ments proposed by Shri M.Ananthasayanam Ayyangar, it is

possible to infer that the intention of the Constituent

Assembly was that the provision with regard to the machinery

for such investigation and proof was a matter which need not

be contained in the Constitution and it is a matter for

which provision could be made by Parliament by law.

27. This is some of the historical material and back-

ground on the topic. We may now proceed to consider the

merits of the contentions.

RE: CONTENTION A:

28. This contention has two aspects: whether a motion

for removal of a Judge lapses upon the dissolution of the

House of Parliament and secondly, the question whether it so

lapses or not is a matter within the exclusive domain and

decision of that House itself. On the first aspect, the

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contention of the learned Attorney General and Shri Kapil

Sibal, learned Senior Counsel, are similar. On the second

aspect, the learned Attorney General would say that the

question whether a motion lapsed or not is to be decided on

the basis of the provisions of law guiding the matter and

the House itself is not its final arbiter. Learned Attorney

General would say that the Court alone has jurisdiction to

examine and pronounce on the law of the matter.

29. On the question of lapse reliance was placed on the

classic treatise of Erskine May's "The Law, Privileges,

Proceedings and Usage

47

of Parliament" [Twenty-first Edition, London Butterworths

1989]. A motion is described as a "proposal made for the

purpose of illustrating the decision of the House". Accord-

ing to Erskine May, certain matters may be raised by only a

substantive motion. He says:

"Certain matters cannot be debated, except on

a substantive motion which allows a distinct

decision of the House. Amongst these are the

conduct of the sovereign, the heir to the

throne or other members of the Royal Family, a

Governor-General of an independent territory,

the Lord Chancellor, the Speaker, the Chairman

of Ways and Means, Members of either House of

Parliament and judges of the superior courts

of the United Kingdom, including persons

holding the position of a judge, such as a

judge in a court of bankruptcy and a county

court, or a recorder..."

30. 'Sri Sibal placed strong reliance on the following

statements in M.N.Kaul and S.L.Shakdher in "Practice and

Procedure of Parliament" as to the effects of the dissolu-

tion of the House:

"Dissolution, as already stated, marks the end

of the life of a House and is followed by the

constitution of a new House. Once the House

has been dissolved, the dissolution is irrevo-

cable. There is no power vested in the Presi-

dent to cancel his order of dissolution and

revive the previous House. The consequences of

a dissolution are absolute and irrevocable. In

Lok Sabha, which alone is subject to dissolu-

tion under the Constitution, dissolution

"passes a sponge over the parliamentary

slate". All business pending before it or any

of its committees lapses on dissolution. No

part of the records of the dissolved House can

be carried over and transcribed into the

records or registers of the new House. In

short, the dissolution draws the final curtain

upon the existing House".

Adverting to the effect of dissolution on other business

such as motions, resolutions etc., the learned authors say:

"All other business pending in Lok Sabha,

e.g., motions, resolutions, amendments supple-

mentary demands for grants etc., at whatever

stage, lapses upon dissolution, as also the

petitions presented to the House which stand

referred to the Committee on Petitions."

Learned Attorney General urged that a combined reading

of Articles 107, 108 and 109 leads irresistibly to the

conclusion that upon dissolution

48

of the House, all bills will lapse subject only to the

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exception stipulated in Article 108. It is further urged

that on first principle also it requires to be accepted that

no motion should survive upon the dissolution of the House

unless stipulated otherwise under the Rules of Procedure and

conduct of business. The doctrine of lapse, it is urged, is

a necessary concomitant of the idea that each newly consti-

tuted House is a separate entity having a life of its own

unless the business of the previous House is carried over by

the force of statute or rules of procedure. Both the learned

Attorney General and Shri Kapil Sibal took us through the

Rules of Procedure and Conduct of Business in Lok Sabha made

under Article 118 of the Constitution to show that invaria-

bly all pending business come to an end with the expiry of

the term of the House or upon its earlier dissolution.

Shri Ram Jethmalani for the petitioner-sub-committee

referred to the conventions of the British Parliament and

urged that pending business lapses on prorogation and as a

general practice the House is usually prorogued before it is

dissolved. Learned counsel said that impeachment motions are

sui generous in their nature and that they do not lapse. It

is. however, necessary to distinguish the Indian Parliamen-

tary experience under a written Constitution from the Brit-

ish conventions. Indeed, referring to the doctrine of lapse

this Court in Purushothaman Nambudiri v. The State of Kerala

[1962] Suppl. 1 SCR 753 Gajendragadkar J said:

".... In support of this argument it is urged

that wherever the English parliamentary form

of Government prevails the words "prorogation"

and "dissolution" have acquired the status of

terms of art and their significance and conse-

quence are well settled. The argument is that

if there is no provision to the contrary in

our Constitution the English convention with

regard to the consequence of dissolution

should be held to follow even in India. There

is no doubt that, in English, in addition to

bringing a session of Parliament to a close

prorogation puts an end to all business which

is pending consideration before either House

at the time of such prorogation; as a result

any proceedings either in the House or in any

Committee of the house lapse with the session

Dissolution of Parliament is invariably pre-

ceded by. prorogation, and what is true about

the result of prorogation" is, it is said, a

fortiori true about the result of dissolution.

Dissolution of Parliament is sometimes de-

scribed as "a civil death of Parliament".

Ilbert, in his work on 'Parliament' has ob-

served that "prorogation means the end of a

session (not of a Parliament)"; and adds that

"like dissolution, it kills all bills which

have not yet passed". He also describes disso-

lution as an "end of a Parliament (not merely

of

49

a session) by royal proclamation", and ob-

serves that "it wipes the slate clean of all

uncompleted bills or other

proceedings"..."[p.759 & 760].

After referring to the position in England that the

dissolution of the House of Parliament brought to a close

and in that sense killed all business of the House at the

time of dissolution, the learned Judge said:

" ....... Therefore, it seems to us that the

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effect of cl. (5) is to provide for all cases

where the principle of lapse on dissolution

should apply. If that be so, a Bill pending

assent of the Governor or President is outside

cl. (5) and cannot be said to lapse on the

dissolution of the Assembly."

[p. 768]

" ........ In the absence of cl. (5) it

would have followed that all pending business,

on the analogy of the English convention,

would lapse on the dissolution of the Legisla-

tive Assembly. It is true that the question

raised before us by the present petition under

Pal. 196 is not free from difficulty but, on

the whole, we are inclined to take the view

that the effect of cl. (5) is that all cases

not falling within its scope are not subject

to the doctrine of lapse of pending business

on the dissolution of the Legislative Assem-

bly. In that sense we read cl. (5) as dealing

exhaustively with Bills which would lapse on

the dissolution of the Assembly. If that be

the true position then the argument that the

Bill which was pending assent of the President

lapsed on the dissolution of the Legislative

Assembly cannot be upheld."

[P. 769]

31. It is true that Purushothaman Nambudiri case dealt

with a legislative measure and not a pending business in the

nature of motion. But, we are persuaded to the view that

neither the doctrine that dissolution of a House "passes a

sponge over parliamentary slate" nor the specific provisions

contained in any rule or rules flamed under Article 118 of

the Constitution determine the effect of dissolution on the

motion for removal of a judge under Article 124. the reason

is that Article 124(5) and the law made thereunder exclude

the operation of Article 118 in this area.

Section 3 of the Act provides:

"3(1) If notice is given of a motion for

presenting an address to the President praying

for the removal of a Judge signed,--

(a) in the case of a notice given in the

House of the People, by not less than one

hundred members of that House;

50

(b) in the case of a notice given in the

Council of States, by not less than fifty

members of that Council;

then, the Speaker or, as the case may be, the

Chairman may, after consulting such persons,

if any, as he thinks fit and after considering

such materials, if any, as may be available to

him, either admit the motion or refuse to

admit the same.

(2) If the motion referred to in sub-section

(1) is admitted, the Speaker or, as the case

may be, the Chairman shall keep the motion

pending and constitute, as soon as may be, for

the purpose of making an investigation into

the grounds on which the removal of a Judge is

prayed for, a Committee consisting of three

members of whom --

(a) One shall be chosen from among the Chief

Justices and other Judges of the Supreme

Court;

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Co) one shall be chosen from among the

Chief Justices of the High Courts; and

(c) one shall be a person who is, in the

opinion of the Speaker or, as the case may be,

the Chairman, a distinguished jurist;

Proviso &) Omitted

Sub-sections) as

(3) to (9)) unnecessary here.

Section 6.(2) provides:

"(2) If the report of the Committee contains a

finding that the Judge is guilty of any misbe-

haviour or suffers from any incapacity, then,

the motion referred to in sub-section (1) of

section 3 shall, together with the report of

the Committee, be taken up for consideration

by the House or the Houses of Parliament in

which it is pending."

The effect of these provisions is that the motion shall

be kept pending till the committee submits its report and if

the committee finds the Judge guilty, the motion shall be

taken up for consideration. Only one motion is envisaged

which will remain pending. No words of limitation that the

motion shall be kept pending subject to usual effect of

dissolution of the House can or should be imported. The

reason is that a law made by the Parliament and binding on

the House can provide against the doctrine of lapse. The law

envisaged in article 124(5) is Parliamentary law which is of

higher quality and efficacy than rules made by the House for

itself under Article 118. Such a law can, and under the

present statute does

51

provide against the doctrine of lapse. Further, Art. 118

expressly states that each House of Parliament may make

rules "for regulating, subject to the provisions of this

Constitution".

In State of Punjab v. Sat Pal Dang & Ors. [1969] 1 SCR

478 this Court held that the law for purposes of Article 209

(analogues to Article 119) could even take the form of an

Ordinance promulgated by the Governor of a State under

Article 213 and that wherever there is repugnance between

the Rules of Procedure framed under Article 208 (Article 118

in the ease of Parliament), the law made under Article 209

shall prevail. In the constitutional area of removal of a

Judge, the law made under Article 124(5) must be held to go

a little further and to exclude the operation of the Rules

under Article 118. Indeed, no question of repugnance could

arise to the extent the field is covered by the law under

Article 124(5).

Such a view would indeed obviate some anomalies which

might otherwise arise. Rajya Sabha is not dissolved and a

motion for presentation of address for the removal of the

Judge can never lapse there. Section 3 applies to both the

Houses of Parliament. The words "shall keep the motion

pending" cannot have two different meanings in the two

different contexts. It can only mean that the consideration

of the motion shall be deferred till the report of the

committee implying that till the happening of that event the

motion will not lapse. We are of the view that the argument

that such a motion lapses with the dissolution of the House

of Parliament is not tenable.

32. The second limb of Contention A is that the question

whether a motion has lapsed or not is a matter pertaining to

the conduct of the business of the House of which the House

is the sole and exclusive master. No aspect of the matter,

it is contended, is justificiable before a Court. Houses of

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Parliament, it is claimed, are privileged to be the exclu-

sive arbiters of the legality of their proceedings. Strong

reliance has been placed on the decision in oft-quoted

decision in Bradlaugh v. Gosserr, [1884] 12 Q.B.D. 271.

There the exclusiveness of parliamentary jurisdiction on a

matter related to the sphere where Parliament, and not the

Court, had exclusive jurisdiction even if the matters were

covered by a statute.

But where, as in this country and unlike in England,

there is a written constitution which constitutes the funda-

mental and in that sense a "higher law" and acts as a limi-

tation upon the Legislature and other organs of the State as

grantees under the Constitution, the usual incidents of

parliamentary sovereignty do not obtain and the concept is

one of 'limited Government'. Judicial review is, indeed, an

incident of and flows

52

from this concept of the fundamental and the higher law

being the touchstone of the limits of the powers of the

various organs of the State which derive power and, authori-

ty under Constitution and that the judicial wing is the

interpreter of the Constitution and, therefore, of the

limits of authority of the different organs of the State. It

is to be noted that the British Parliament with the Crown is

Supreme and its powers are unlimited and courts have no

power of judicial review of legislation.

This doctrine is in one sense the doctrine of ultra

vires in the constitutional law. In a federal set up the

judiciary becomes the guardian of the Constitution. Indeed,

in A.K. Gopalan v. The State of Madras, [1950] SCR 88 Arti-

cle 13 itself was held to be ex abundante cautela and that

even in its absence if any of the fundamental rights were

infringed by any legislative enactment, the court had always

power to declare the enactment invalid. The interpretation

of the Constitution as a legal instrument and its obligation

is the function of the Courts. "It is emphatically the

province and duty of the judicial department to say what the

law is". In Re: Special Reference Case, [1965] 1 SCR 413

Gajendragadkar, CJ said:

".......though our Legislatures have plenary

powers, they function within the limits pre-

scribed by the material and relevant provi-

sions of the Constitution.

In a democratic country governed by a written

Constitution, it is the Constitution which is

supreme and sovereig..... "

But it is the duty of this Court to interpret the Con-

stitution for the meaning of which this Court is final

arbiter.

33. Shri Kapil Sibal referred us to the following obser-

vations of Stephen J. in Bradlaugh v. Gosserr, supra:

"......It seems to follow that the House of

Commons has the exclusive power of interpret-

ing the statute, so far as the regulation of

its own proceedings within its own walls is

concerned; and that even if that interpreta-

tion should be erroneous, this court has no

power to interfere with it directly or indi-

rectly..."

[p. 280 & 281]

"....The House of Commons is not a Court of

Justice; but the effect of its privilege to

regulate its own internal concerns practically

invest it with the judicial character when it

has to apply to particular cases the provi-

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sions of Acts of Parliament.

53

We must presume that it discharges this func-

tion properly and with due regard to the laws,

in the making of which it has so great a

share. If its determination is not in accord-

ance with law, this resembles the case of an

error by a judge whose decision is not subject

to appeal. There is nothing startling in the

recognition of the fact that such an error is

possible. If, for instance, a jury in a crimi-

nal case gives a perverse verdict, the law has

provided no remedy. The maxim that there is no

wrong without a remedy does not mean, as it is

sometimes supposed, that there is legal remedy

for every moral or political wrong..... "

[p. 285]

The rule in Bradlaugh v. Gossett, supra, was held not

applicable to proceedings of colonial legislature governed

by the written constitutions Barton v..Taylor, [1886] 11 AC

197 and Redillusion (Hong Kong) Ltd. v. Attorney General of

Hong Kong, [1970] AC 1136.

The principles in Bradlaugh is. that even a statutory

right if it related to the sphere where Parliament and not

the courts had exclusive jurisdiction would be a matter of

the Parliament's own concern. But the principle cannot be

extended where the matter is not merely one of procedure but

of substantive law concerning matters beyond the Parliamen-

tary procedure. Even in matters of procedure the constitu-

tional provisions are binding as the legislations are en-

forceable. Of the interpretation of the Constitution and as

to what law is the Courts have the constitutional duty to

say what the law is. The question whether the motion has

lapsed is a matter to be pronounced upon the basis of the

provisions of the Constitution and the relevant laws. In-

deed, the learned Attorney General submitted that the ques-

tion whether as an interpretation of the constitutional

processes and laws, such a motion lapses or not is exclu-

sively for the courts to decide.

The interpretation of the laws is the domain of the

courts and on such interpretation of the constitutional

provisions as well as the Judges (Inquiry) Act, 1968, it

requires to be held that under the law such a motion does

not lapse and the Courts retain jurisdiction to so declare.

Contention A is answered accordingly.

RE: CONTENTIONS (B), (C) AND (D):

34. These contentions have common and over-lapping areas

and

admit of being deal with and disposed of together. On tile

interpretative

criteria apposite to the true meaning and scope of Articles

121, 124(4) and

124(5), indeed, three constructional options become avail-

able:

54

First: The entire power for taking all

steps for the removal of a Judge, culminating

in the presentation of an address by

different Houses of Parliament to the Presi-

dent, is committed to the two Houses of Par-

liament alone and no initiation of

any investigation is possible without the

initiative being taken by the Houses them-

selves. No law made by Parliament under

Article 124(5) could take away this power. The

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bar of Article 121 is lifted the moment any

Member of Parliament gives notice of motion

for the removal of a Judge and the entire

allegations levelled by him would be open for

discussion in the House itself. It will be for

the majority of the Members of the House t

decide if and how they would like to have the

allegations investigated. Any

abridging this power is bad.

Second: Since a motion for presenting an

address to the President referred to in Arti-

cles 121 and 124 (4) has to be on ground of

"proved" misbehaviour and incapacity, no such

motion can be made until the allegations

relating to misbehaviour or incapacity have

first been found to be proved in some forum

outside either Houses of Parliament Law under

Article 124(5) is mandatory and until the

Parliament enacts a law and makes provision

for an investigation into the alleged misbeha-

viour or incapacity and regulates the proce-

dure therefor, no motion for removal of a

Judge would be permissible under Article

124(4) and the House of Parliament would not

be brought into the picture till some authori-

ty outside the two Houses of Parliament has

recorded a finding of misbehaviour or incapac-

ity. The emphasis is on the expression

'proved'.

Third: That Article 124(5) is only an

enabling provision and in the absence of any

enactment by the Parliament under that provi-

sion it would be open to either House to

entertain a motion for the removal of a Judge.

However, it is open to the Parliament under

Article 124(5) to enact a law to regulate the

entire procedure starting with the investiga-

tion of the allegations against the Judge

concerned and ending with the presentation of

the address by the two Houses of Parliament.

It would be open to the Parliament to desig-

nate any authority of its choice for investi-

gating the allegations and also to regulate

the

55

procedure for the consideration of the matter

in either House.

As soon as a law has been enacted all its

provisions would be binding on both Houses of

Parliament and would even override any Rules

flamed by the two Houses under Article 118 of

the Constitution. It will not be permissible

for either House to act contrary to the provi-

sions of such Act. The question as to when and

in what circumstances motion would be allowed

to be moved in either House of Parliament to

lift the ban against the discussion of conduct

of a Judge under Article 121 would be accord-

ing to such Act of Parliament.

In regard to the first and the second alternative propo-

sitions, the deliberations of the Joint Select Committee

would indicate a sharp divide amongst the eminent men who

gave evidence. Particularly striking is the sharp contrast

between the opinions of Mr. K.K. Shah and Mr. M.C. Setalvad.

The first view would tend to leave the matter entirely with

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the House, which can adopt any procedure even differing from

case to case. The matter would be entirely beyond judicial

review. Then there is the inevitable' element of political

overtone and of contemporary political exacerbations arising

from inconvenient judicial pronouncements thus endangering

judicial independence.

The third view would suffer from the same infirmities

except that Parliament might itself choose to discipline and

limit its own powers by enacting a law on the subject. The

law enacted under Article 124(5) might be a greatly civi-

lized piece of legislation deferring to values of judicial

independence. But then the Parliament would be free to

repeal that law and revert hack to the position reflected in

the first view. The third view can always acquire back the

full dimensions of the first position at the choice of the

Parliament.

35. The second view has its own commendable features. It

enables the various provisions to be read harmoniously and,

together, consistently with the cherished values of judicial

independence. It also accords due recognition to the word

"proved" in Article 124(4). This view would also ensure

uniformity of procedure in both Houses of Parliament and

serve to eliminate arbitrariness in the proceedings for

removal of a Judge. It would avoid duplication of the inves-

tigation and inquiry in the two Houses. Let us elaborate on

this.

56

36. Article 121 ,and the material parts of Article 124 read

as under:

"121. Restriction on discussion in Parlia-

ment. - No discussion shall take place in

Parliament with respect to the conduct of any

Judge of the Supreme Court or of a High Court

in the discharge of his duties except upon a

motion for presenting an address to the Presi-

dent praying for the removal of the Judge as

hereinafter provided.

124. Establishment and constitution of

Supreme Court.

(1)....................................

(2) Every Judge of the Supreme Court shall be

appointed by the President by warrant under

his hand and seal after consultation with such

of the Judges of the Supreme Court and of the

High Courts in the States as the President may

deem necessary for the purpose and shall hold

office until he attains the age of sixty-five

years:

Provided that in the case of appointment of a

Judge other than the Chief Justice of India

shall always be consulted:

Provided further that -

(a) a Judge may, by writing under his hand

addressed to the President, resign his office;

(b) a Judge may be removed from his office in

the manner provided in clause (4).

(4) A Judge of the Supreme Court shall not be

removed from his office except by an order of

the President passed after an address by each

House of Parliament supported by a majority of

not less than two-thirds of the members of

that House present and voting has been pre-

sented to the President in the same session

for such removal on the ground of proved

misbehaviour or incapacity.

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(5) Parliament may by law regulate the proce-

dure for the presentation of an address and

for the investigation and proof of the misbe-

haviour or incapacity of a Judge under clause

(4)."

Article 121 suggests that the bar on discussion in

Parliament with respect to the conduct of any Judge is

lifted 'upon a motion for presenting an address to the

President praying for the removal of a Judge as hereinaf-

57

provided'. The word 'motion' and 'as hereinafter provid-

ed' are obvious references to the motion for the purpose of

clause (4) of Article 124 which in turn, imports the concept

of "proved" misbehaviour or incapacity. What lifts the bar

under Article 121 is the 'proved' misbehaviour or incapaci-

ty. Then arises the question as to how the investigation and

proof of misbehaviour or incapacity preceding the stage of

motion for removal on the ground of "proved" misbehaviour or

incapacity under Article 124(4) is to be carried on. Clause

(5) of Article 124 provides for enactment of a law for this

purpose.

37. The seminal question is whether clause (5) is merely

an enabling provision particularly in view of the use of the

word 'may' therein, or it incorporates a condition precedent

on the power of removal of the parliament. In other words,

can the function of removal under Article 124(4) be per-

formed without the aid of a law enacted under clause (5)?If

it can be, then the power for investigation and proof of

misbehaviour or incapacity of a Judge must be found in

clause (4) itself and the scope of clause (5) limited only

to enactment of a law for this limited purpose if the Par-

liament so desires and not otherwise. The other view is that

clause (5) contains a constitutional limitation on the power

of removal contained in clause (4) so that it can be exer-

cised only on misbehaviour or incapacity "proved" in accord-

ance with the law enacted under clause (5). In such situa-

tion, the power of the Parliament would become available

only for enacting the law under clause (5) and if misbeha-

viour or incapacity is "proved" in accordance with such law.

The motion which lifts the bar contained in Article 121 is

really a motion for such removal under clause (4) of Article

124 moved in the House after the alleged misbehavior or

incapacity has been proved in accordance with the law enact-

ed by the Parliament under clause (5) of Article 124. In

this connection, the parliamentary procedure commences only

after proof of misbehaviour or incapacity in accordance with

the law enacted under clause (5), the machinery for investi-

gation and finding of proof of the misbehaviour or incapaci-

ty being statutory. governed entirely by provisions of the

law enacted under clause (5). This also harmonises Article

121. The position would be that an allegation of misbeha-

viour or incapacity of a Judge has to be made, investigated

and found proved in accordance with the law enacted by the

Parliament under Article 124(5) without the Parliament being

involved upto that stage; on the misbehaviour or incapacity

of a Judge being found proved in the manner provided by that

law, a motion for presenting an address to the President for

removal of the Judge on that ground would be moved in each

House under Article 124(4); on the motion being so moved

after the proof of misbehaviour or incapacity and it being

for presenting an address to the President praying for

removal of the Judge, the bar. on

58

discussion contained in Article 121 is lifted and discussion

can take place in the Parliament with respect to the conduct

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of the Judge; and the further consequence would ensue de-

pending on the outcome of the motion in a House of Parlia-

ment. If, however, the finding reached by the machinery

provided in the enacted law is that the allegation is not

proved, the matter ends and there is no occasion to move the

motion in accordance with Article 124(4).

38. If it be accepted that clause (4) of Article 124 by

contains the complete power of removal and the enactment of

a law under clause (5) is merely enabling and not a consti-

tutional limitation on the exercise of the power of removal

under clause (4), then some other questions arise for con-

sideration. If clause (5) is merely an enabling provision,

then it cannot abridge the scope of the power in clause (4)

and, therefore, the power of a House of Parliament under

clause (4) cannot be curtailed by a mere enabling law enact-

ed under clause (5) which can be made only for the purpose

of aiding or facilitating exercise of the function under

clause (4). In that situation, enactment of the enabling law

under clause (5) would not take the sphere covered by the

law outside the ambit of Parliament's power under clause

(4). The argument that without enactment of the law under

clause (5), the entire process from the time of initiation

till presentation of the address to the President, including

investigation and proof of the misbehaviour or incapacity,

is within the sphere of Parliament, but on enactment of a

law under clause (5) that area is carved out of the Parlia-

ment's sphere and assumes statutory character appears tenu-

ous. If the argument were correct, then clause (5), would

merely contemplate a self-abnegation.

39. The other view is that clause (4) of Article 124

gives power to the Parliament to act for removal of the

Judge on the ground of proved misbehaviour or incapacity in

the manner prescribed if the matter is brought before it at

this stage; and for reaching that stage the Parliament is

required to enact a law under clause (5) regulating the

procedure for that purpose. This means that making of the

allegation, initiation of the proceedings, investigation and

proof of the misbehaviour or incapacity of a Judge are

governed entirely by the law enacted by the Parliament under

clause (5) and when that stage is reached, the Parliament

comes into the picture and the motion for removal of the

Judge on the ground of proved misbehaviour or incapacity is

moved for presentation of the address to the President in

the manner prescribed. The matter not being before the

Parliament prior to this stage is also indicated by Article

121 which lifts the bar on discussion in Parliament only

upon a motion for presenting an address to the President as

provided later in Article 124(4). The bar in

59

Article 121 applies to discussion in Parliament but investi-

gation and proof of misconduct or incapacity cannot exclude

such discussion. This indicates that the machinery for

investigation and proof must necessarily be outside Parlia-

ment and not within it. In other words, proof which involves

a discussion of the conduct of the Judge must be by a body

which is outside the limitation of Article 121. The word

'proved' also denotes proof in the manner understood in our

legal system i.e. as a result of a judicial process. The

policy appears to be that the entire stage upto proof of

misbehaviour or incapacity, beginning with the initiation of

investigation on the allegation being made, is governed by

the law enacted under Article 124(5) and in view of the

restriction provided in Article 121, that machinery has to

be outside the Parliament and not within it. If this be so,

it is a clear pointer that the Parliament neither has any

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role to play till misconduct or incapacity is round proved

nor has it any control over the machinery provided in the

law enacted under Article 124(5). The Parliament comes in

the picture only when a finding is reached by that machinery

that the alleged misbehaviour or incapacity has been proved.

The Judges (inquiry) Act, 1968 enacted under Article 124(5)

itself indicates that the Parliament so understood the

integrated scheme of Articles 121, 124(4) and 124(5). The

general scheme of the Act conforms to this view. Some ex-

pressions used in the Act, particularly sections 3 and 6 to

suggest that the motion is initiated in the House or is kept

pending in the House during investigation can be reconciled,

if this Constitutional Scheme is accepted. Those expressions

appear to have been used since the authority tO entertain

the complaint is 'Speaker/Chairman', the complaint is de-

scribed as 'motion' and the complaint can be made only by

the specified number of Members of Parliament. In substance

it only means that the specified number of M.Ps. alone can

make such a complaint; the complaint must be made to the

'Speaker/Chairman'; on receiving such a complaint if the

Speaker/Chairman form the opinion that there is a prima

facie case for investigation, he will constitute the judi-

cial committee as prescribed; and if the finding reached is

'guilty' then the Speaker/Chairman commences the parliamen-

tary process in accordance with Article 124(4) for removal

of the Judge and the bar in Article 121 is lifted.

40. If this be the correct position, then the validity

of law enacted by the Parliament trader clause (5) of Arti-

cle 124 and the stage upto conclusion of the inquiry in

accordance with that law being governed entirely by statute

would be open to judicial review as the parliamentary proc-

ess under Article 124(4) commences only after a finding is

recorded that the alleged misbehaviour or incapacity is

proved in the inquiry conducted in accordance with the law

enacted under clause (5). For this reason the argument based

on exclusivity of Parliament's jurisdiction over

60

the process and progress of inquiry under the Judges (in-

quiry) Act, 1968 and consequently exclusion of this Court's

jurisdiction in the matter at this stage does not arise. For

the same reason, the question of applying the doctrine of

lapse to the motion made to the Speaker giving rise to the

constitution of the Inquiry Committee under the Act, also

does not arise and there can be no occasion for the House to

say so at any time. If the House is, therefore, not required

to consider this question since the parliamentary process

can commence only after a finding of guilt being proved, the

further question of a futile writ also does not arise. The

argument that the House can decide even after a finding of

guilt that it would not proceed to vote for removal of the

Judge is not germane to the issue since that is permissible

in the Constitutional Scheme itself under Article 124(4)

irrespective of the fact whether Article 124(5) is a mere

enabling provision or a constitutional limitation on the

exercise of power under Article 124(4).

41. It is not the law enacted under Article 124(5) which

abridges or curtails the parliamentary process or exclusive-

ly of its jurisdiction but the Constitutional Scheme itself

which by enacting clauses (4) and (5) simultaneously indi-

cated that the stage of clause (4) is reached and the proc-

ess thereunder commences only when the alleged misbehaviour

or incapacity is proved in accordance with the law enacted

under clause (5).

42. It is only then that the need for discussing a

Judge's conduct in the Parliament arises and, therefore, the

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bar under Article 121 is lifted. in short, the point of time

when the matter comes first before the Parliament in the

Constitutional Scheme, Article 121 provides that the bar is

lifted. The other view creates difficulties by restricting

discussion in Parliament on a motion which would be before

it. The suggestion to develop a convention to avoid discus-

sion at that stage or to prevent it by any other device

adopted by the Speaker after admitting the motion, does not

appear to be a satisfactory solution or explanation. That

this obvious situation could have been left unprovided for

and the field left to a convention to be developed later,

while enacting these provisions with extreme care and cau-

tion in a written Constitution, is extremely unlikely. This

indicates that this area is not left uncovered which too is

a pointer that the stage at which the bar in Article 121 is

lifted, is the starting point of the parliamentary process

i.e. when the misbehaviour or incapacity is proved; the

stage from the initiation of the process by' making the

allegation, its mode, investigation and proof are covered by

the law enacted under clause (5); in case the allegation is

not proved, the condition precedent to invoke the Parlia-

ment's jurisdiction under clause (4), does not exist, which

is the reason for section 6 of 1968 Act saying so; and in

case it is proved, the

61

process under clause (4) commences, culminating in the

result provided in it.

43. In Part V of the Constitution relating to 'The

Union', Article 124 is in 'Chapter IV - The Union Judiciary'

while Articles 118 and 119 relating to Parliament's power to

make rules or enact a law to regulate its procedure and the

conduct of its business are in 'Chapter II - Parliament'

under the heading 'Procedure Generally' wherein Article 121

also finds place. The context and setting in which clause

(5) appears along with clause (4) in Article 124 indicate

its nature connected with clause (4) relating to curtailment

of a Judge's tenure, clause (4) providing the manner of

removal and clause (5) the pre-requisite for removal distin-

guished from Articles 118, 119 and 121, all of which relate

to procedure and conduct of business in Parliament. Article

124(5) does not, therefore, operate in the same field as

Article 118 relating to procedure and conduct of business in

Parliament.

Accordingly, the scheme is that the entire process of

removal is in two parts the first parts under clause (5)

from initiation to investigation and proof of misbehaviour

or incapacity is covered by an enacted law, Parliament's

role being only legislative as in all the laws enacted by

it; and the second part only after proof under clause (4) is

in Parliament, that process commencing only on proof in

accordance with the law enacted under clause (5) Thus the

first part is entirely statutory while the second part alone

is the parliamentary process.

44. The Constitution intended a clear provision for the

first part covered fully by enacted law, the validity of

which and the process thereunder being subject to judicial

review independent of any political colour and after proof

it was intended to be a parliamentary process. It is this

synthesis made in our Constitutional Scheme for removal of a

Judge.

If the motion for presenting an address for removal is

envisaged by Articles 121 and 124(4) 'on ground of proved

misbehaviour or incapacity' it presupposes that misbehaviour

or incapacity has been proved earlier. This is more so on

account of the expression 'investigation and proof used in

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clause (5) with specific reference to clause (4). This

indicates that 'investigation and proof' of misbehaviour or

incapacity is not within clause (4) but within clause (5).

Use of the expression 'same session' in clause (4) without

any reference to session in clause (5) also indicates that

session of House has no significance for clause (5) i.e.,

'investigation and proof' which is to be entirely governed

by the enacted law and not the parliamentary practice which

may be altered by each Lok Sabha.

62

45.The significance of the word 'proved' before the

expression 'misbehaviour or incapacity' in clause (4) of

Article 124 is also indicated when the provision is compared

with Article 317 providing for removal of a member of the

Public Service Commission. The expression in clause (1) of

Article 317 used for describing the ground of removal is

'the ground of behaviour' while in clause (4) of Article

124, it is, 'the ground of proved misbehaviour or incapaci-

ty'. The procedure for removal of a member of the Public

Service Commission is also prescribed in clause (1) which

provides for an inquiry by the Supreme Court on a reference

made for this purpose. In the case of a Judge, the procedure

for investigation and proof is to be in accordance with the

law enacted by the Parliament under clause (5) of Article

124. In view of the fact that the adjudication of the ground

of misbehaviour under Article 317 (1) is to be by the Su-

preme Court, in the case of a Judge who is a higher consti-

tutional functionary, the requirement of judicial determina-

tion of the ground is re-inforced by the addition of the

word 'proved' in Article 124(4) and the requirement of law

for this purpose under Article 124(5).

46. Use of the word 'may' in clause (5) indicates that

for the 'procedure for presentation of address' it is an

enabling provision and in the absence of the law the general

procedure or that resolved by the House may apply but the

'investigation and proof' is to be governed by the enacted

law. The word 'may' in clause (5) is no impediment to this

view.

47. On the other hand, if the word 'shall' was used in

place of 'may' in clause (5) it would have indicated that it

was incumbent on the Parliament to regulate even the proce-

dure for presentation of an address by enacting such a law

leaving it no option even in the matter of its procedure

after the misbehaviour or incapacity had been investigated

and found true. 'Sometimes, the legislature uses the word

"may" out of deference to the high status of the authority

on whom the power and the obligation are intended to be

conferred and imposed.' (See: State of Uttar Pradesh v.

Joginder Singh, [1964] 2 SCR 197 at 202. Indeed, when a

provision is intended to effectuate a right--here it is to

effectuate a constituational protection to the Judges under

Article 124 (4)---even a provision as in Article 124 (5)

which may otherwise seem merely enabling, becomes mandatory.

The exercise of the powers is rendered obligatory. In Fred-

eric Guilder julius v. The Right Rev. The Lord Bishop of

Oxford; the Rev. Thomas Tellsson Carter, [1879-80] 5 A.C.

214 at p. 24zt, Lord Blackburn said:

,.The enabling words are construed as

compulsory whenever the object of the power is

to effectuate a legal right...."

63

In Punjab Sikh Regular Motor Service, Moudhapura v. The

Regional Transport ,Authority, Raipur & Anr, [1966] 2 SCR

221, this Court referring to the word 'may' in Rule 63 (a)

in Central Provinces and Berar Motor Vehicles Rules, 1940,

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observed:

"....On behalf of the appellant attention was

drawn to the expression 'may' in Rule 63. But

in the context and the language of the rule

the word 'may' though permissive in form, must

be held to be obligatory. Under Rule 63 the

power to grant renewal of the counter-signa-

ture on the permit in the present case is

conferred on the Regional Transport Authority,

Bilaspur. The exercise of such power of renew-

al depends not upon the discretion of the

authority but upon the proof of the particular

cases out of which such power arises. 'Ena-

bling words are construed as compulsory when-

ever the object of the power is to effectuate

a legal right'. (See: Julius v. Bishop of

Oxford, 5 A.C. 214, 244)...."

If the word 'may' in Article124 (5) is given any other

meaning that sub-Article would render itself, to be treated

by the Parliament, as superfluous, redundant and otiose. The

power to prescribe a procedure for the exercise of power

under Article 124 (4) could otherwise also be available to

the House. The law envisaged under Article 124(5) is not

such a law; but one which would effectuate the constitution-

al policy and philosophy of the machinery for removal of

Judges.

The use of the word 'may' does not, therefore, neces-

sarily indicate that the whole of clause (5) is an enabling

provision leaving it to the Parliament to decide whether to

enact a law even for the investigation and proof of the

misbehaviour or incapacity or not.

The mere fact that clause (5) does not form a part of

clause (4) itself, as appears to have been considered at one

stage when the constitution was being drafted, does not

reduce the significance or content of clause (5). It is

likely that the framers of the Constitution thought of

clearly demarcating the boundaries and, therefore, indicated

that upto the stage of proof of misbehaviour of incapacity

the field is covered by a law enacted by the Parliament, the

first pan being covered by clause (5) and the latter by

clause (4) with the only difference that the Parliament was

given the option to regulate even the procedure for the

presentation of an address after the misbehaviour or inca-

pacity had been proved by enacting a law for the purpose to

make it more definite and consistent.

64

48. Similarly, use of word 'motion' to indicate the

process of investigation and proof in the Judges (Inquiry)

Act, 1968 because the allegations have to be presented to

the 'Speaker' does not make it 'motion in the House' not-

withstanding use of that expression in Section 6. Otherwise,

section 6 would not say that no further step is to be taken

in case of a finding of 'not guilty'. It only means that

when the allegation is not proved, the Speaker need not

commence the process under clause (4) which is started only

in case it is proved. The Speaker is, therefore, a statutory

authority under the Act chosen because the further process

is parliamentary and the authority to make such a complaint

is given to Members of Parliament. Moreover, to the enact-

ment under Article 124(5) cannot be a safe guide to deter-

mine the scope of Article 124(5).

If this construction of the inter-connection amongst

Articles 118,121, 124 (4) and 124 (5) is the proper one to

be placed on them, as indeed we so do, the provisions of the

Judges (Inquiry) Act do not foul with the Constitutional

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Scheme.

49. On scope of the law under Article 124(5), the idea

of regulating procedure for (i) Presentation of the address;

(ii) Investigation and proof of misbehaviour or incapacity

admit of two possible options of interpretation. The idea of

"Presentation of the address" may be confined to the actual

presentation of address by both Houses of the Parliament; or

may be held to cover the entire process from initiation by

the motion in the House till the final act of delivery of

the address. If the first view is correct the law under

Article 124(5) would apply at the stage of investigation and

proof of misbehaviour or incapacity and at the final stage

of presentation of address after the motion is adopted by

both the Houses. The motion and its consideration and adop-

tion by the House would be outside the ambit of such law and

it would be regulated by the rule of procedure made under

Article I 18. This view is too narrow. By bringing in the

rules of procedure of the House made under Article 118 it

introduces an element of uncertainty and might affect inde-

pendence of the judiciary.

50. Second view is to be preferred. It enables the

entire process of removal being regulated by a law of Par-

liament - ensures uniformity and reduces chances of arbi-

trariness. Article I 18 is a general provision conferring on

each House of Parliament the power to make its own rules of

procedure. These rules are not binding on the House and can

be altered by the House at any time. A breach of such rules

amounts to an irregularity and is not subject to judicial

review in view of Article 122.

51. Article 124(5) is in the nature of a special provi-

sion intended to regulate the procedure for removal of a

Judge under Article 124(4) which

65

iS not a part of the normal business of the House but is in

the nature of special business. It covers the entire field

relating to removal of a Judge. Rules made under Article 118

have no application in this field.

52. Article 124(5) has no comparison with Article 119.

Articles 118 and 119 operate in the same field viz. normal

business of the House. It was, therefore, necessary to

specifically prescribe that the law made under Article 119

shall prevail over the rules of procedure made under Article

118. Since Article 118 and 124(5) operate in different

fields a provision like that contained in Article 119 was

not necessary and even in the absence of such a provision, a

law made under Article 124 (5) will override the rules made

under Article 118 and shall be binding on both the Houses of

Parliament. A violation of such a law would constitute

illegality and could not be immune from judical scrutiny

under Article 122(1).

53. Indeed, the Act reflectS the constitutional philoso-

phy of both the judicial and political elementS of the

process of removal. The ultimate authority remains with the

Parliament in the sense that even if the Committee for

investigation records a finding that the Judge is guilty of

the charges it is yet open to the Parliament to decide not

to present an address to the President for removal. But if

the Committee records a finding that the Judge is not

guilty, then the political element in the process of removal

has no further option. The law is, indeed, a civilised piece

of legislation reconciling the concept of accountability of

Judges and the values of judicial independence.

54. Indeed, the dissenting note of Dr. L.M. Singhvi, in

the Report of the Joint Committee on the Judges (Inquiry)

Bill, 1964 brings into sharp focus the thrust of the report

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of the majority. It is to be recalled that the 1964 Bill

vested the power to initiate the process of removal with the

Executive. That was found objectionable and inconsistent

with the idea of judicial independence. However, as to the

nature of the authority which was the repository of the

power to investigate, the dissenting opinion, by necessary

implication, emphasises the majority view which ultimately

became the law. Dr. Singhvi in his dissent says:

"10. The present Bill seeks to provide only

the modality of a tribunal clothed in the

nomenclature of a Committee. The Committee

contemplated in the Bill may well be consid-

ered a tribunal or an "authority" within the

meaning of Articles 226 and 227 of the Consti-

tution, rendering itS work subject to judicial

review and supervision. What is more, the

Parliament is not left with any choice in the

matter and procedure of parliamen-

66

tary committee has been wholly excluded. With

this I am not in agreement.

11. In both these matters in respect of which

I have dissented from my esteemed colleagues

in the Joint Select Committee, there appears

to be an imprint on the provisions of the Bill

of the now defunct Burmese Constitution, which

provided that a notice of such resolution

should be signed by not less than one-fourth

of the total membership of either Chamber of

Parliament and further that the charge would

be investigated by a special tribunal (S. 143

of the Burmese Constitution). In the Burmese

case, the special tribunal was to consist of

the President or his nominee and the Speakers

of the Chamber of Nationalities and the Cham-

ber of Deputies. I feel that the Burmese

analogue is neither inspiring nor instructive,

and that the more highly evolved procedures of

other democratic constitutions which have been

tried and tested for centuries would have

served us better".

55. Our conclusions, therefore, on contentions B, C and

D are as under:

The constitutional process for removal of a Judge upto

the point of admission of the motion, constitution of the

Committee and the recording of findings by the Committee are

not, strictly, proceedings in the Houses of Parliament. The

Speaker is a statutory authority under the Act. Upto that

point the matter cannot be said to remain outside the

Court's jurisdiction. Contention B is answered accordingly.

Prior proof of misconduct in accordance with the law

made under Article 124(5) is a condition precedent for the

lifting of the bar under Article 121 against discussing the

conduct of a Judge in the Parliament. Article 124 (4) really

becomes meaningful only with a law made under Article

124(5). Without such a law the constitutional scheme and

process for removal of a Judge remains inchoate. Contention

C is answered accordingly.

The Speaker while admitting a motion and constituting a

Committee to investigate the alleged grounds of misbehaviour

or incapacity does not act as part of the House. The House

does not come into the picture at this stage. The provisions

of the Judges (inquiry) Act, 1968 are not unconstitutional

as abridging the powers and privileges of the House. The

Judges (inquiry) Act, 1968 is constitutional and is intra

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vires. Contention D is disposed of accordingly.

67

RE: CONTENTION (E)

56. It is urged by Shri Sibal that having regard to the

serious consequences that flow from the admission of a

motion by the Speaker and the decision to constitute a

Committee for investigation, it is incumbent upon the Speak-

er to afford an opportunity to the Judge of being heard

before such a decision is taken. It is urged that such

decision has momentous conseqences both to the Judge and to

the judicial system as a whole and that any politically

motivated steps to besmear a Judge will not merely affect

the Judge himself but also the entire system of administra-

tion of justice. If a motion brought up with collateral and

oblique motives, it would greatly advance the objects and

purposes of Judges (Inquiry) Act, 1968 if the Judge con-

cerned himself is heard before a decision to admit a

,"notion which has shattering consequences so far as the

Judge is concerned is taken. The minimum requirements of

natural justice, appropriate in the context, says learned

counsel, require that the Judge should have an opportunity

of being heard.

57. Shri Jethmalani, on the contrary, contended that it

would be highly inappropriate that the Speaker should issue

notice to a Judge and call upon him to appear before the

Speaker. That apart, Shri Jethmalani said at that stage of

the proceedings where the Speaker merely decides that the

matter might bear investigation no decisions affecting the

rights, interests or legitimate expectation can be said to

have been taken. Shri Jethmalam sought to point out that

these proceedings could not be equated with disciplinary or

penal proceedings. The Speaker does not decide anything

against the Judge at that stage.

Referring to the nature and purpose of such preliminary

proceedings Corpus Juris Secundum (Vol. 48A) says:

"As a general rule, disciplinary or removal

proceedings relating to Judges are sui generis

and are not civil or criminal in nature; and

their purpose is to inquire into judical

conduct and thereby maintain standards of

judicial fitness".

[p.614]

As to the stage at which there is a need for notice and

opportunity to the Judge to be heard the statement of the

law is:

"The general rule is that before a Judge may

be disciplined, as by removal, he is entitled

to notice and an opportunity to defend even

though there is no statute so requiring.

Ordinarily,

68

the right to defend is exercised in a trial or

hearing, as considered infra 51. More specifi-

cally the Judge is entitled to notice of the

particular charges against him. In addition,

notice of the charge should be given suffi-

ciently in advance of the time for presenting

a defence to permit proper preparation of a

showing in opposition".

(pp. 613-614)

But negativing the position that the Judge would be

entitled to notice even at the preliminary stage it is

stated:

"Investigations may be conducted into matters

relating to judicial conduct as a preliminary

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to formal disciplinary proceedings.

A judiciary commission may conduct an investi-

gation into matters relating to judicial

conduct as a preliminary to formal discipli-

nary proceedings, and a court may, under its

general powers over inferior courts, appoint a

special commissioner to preside over a prelim-

inary investigation. A court rule providing

that a Judge charged with misconduct should be

given a reasonable opportunity in the course

of a preliminary investigation to present such

matters as he may choose, affords him more

protection than is required by constitutional

provisions".

[p. 615]

58. The position is that at the stage of the provisions

when the Speaker admits the motion under section 3 of the

Judges (Inquiry) Act, a Judge is not, as a matter of right,

entitled to such notice. The scheme of the statute and rules

made thereunder by necessary implication, exclude such a

right. But that may not prevent the Speaker, if the facts

and circumstances placed before him indicate that hearing

the Judge himself might not be inappropriate, might do so.

But a decision to admit the motion and constitute a Commit-

tee for investigation without affording such an opportunity

does not, by itself and for that reason alone, vitiate the

decision. Contention E is disposed of accordingly.

RE:CONTENTION (F)

59. The substance of this contention as presented by the

learned counsel for the petitioner, "Sub-Committee" --

argued with particular emphasis by Shri R.K. Garg --is that

the constitutional machinery for removal of a Judge is

merely a political remedy for judicial misbehaviour

69

and does not exclude the judicial remedy available to the

litigants to ensure and enforce judicial integrity. It is

urged that the right to move the Supreme Court to enforce

fundamental rights is in itself a fundamental right and that

takes within its sweep, as inhering in it, the right to an

impartial judiciary with persons of impeccable integrity and

character. Without (his the fundamental right to move court

itself becomes barren and hollow. It is urged that the court

itself has the jurisdiction -- nay a duty -- to ensure the

integrity and impartiality of the members composing it and

restrain any member who is found to lack in those essential

qualities and attainments at which public confidence is

built.

It is true that society is entitled to expect the high-

est and most exacting standards of propriety in judicial

conduct. Any conduct which tends to impair public confidence

in the efficiency integrity and impartiality of the court is

indeed forbidden. In Corpus Juris Secundum (Vol. 48A) refer-

ring to the standards of conduct, disabilities and privi-

leges of Judges, it is observed:

"The State which creates a judicial office may

set appropriate standards of conduct for a

Judge who holds that office, and in many

jurisdictions, courts acting within express or

implied powers have adopted or have followed

certain canons or codes of judicial conduct.

The power of a particular court in matters of

ethical supervision and the maintenance of

standards for the judiciary may be exclusive.

Guidelines for judicial conduct are found both

in codes of judicial conduct and in general

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moral and ethical standards expected of judi-

cial officers by the community. Canons or

codes are intended as a statement of general

principles setting forth a wholesome standard

of conduct for judges which will reflect

credit and dignity on the profession and

illsolar as they prescribe conduct which is

malum in so as opposed to malum prohibitum

they operate to restate those general prinici-

ples that have always governed judicial con-

duct.

Although these canons have been held to be

binding on judges and may have the force of

law where promulgated by the courts, except as

legislatively enacted or judicially adopted

they do not of themselves have the force and

effect of law".

[pp. 593-594]

the nature of prescribed conduct it is stated:

70

"A Judge's official conduct should be free

from impropriety and the appearance of impro-

priety and generally, he should refrain from

participation in activities which may tend to

lessen public respect for his judicial office.

It is a basic requirement, under general

guidelines and canons of judicial conduct,

that a Judge's official conduct be free from

impropriety and the appearance of impropriety

and that both his official and personal beha-

viour be in accordance with the highest

standard society can expect. The standard of

conduct is higher than that expected of lay

people and also higher than that expected of

attorneys. The ultimate standard must be

conducted which constantly reaffirms fitness

for the high responsibilities of judicial

office and judges must so comfor'. themselves

as to dignify the administration of justice

and deserve the confidence and respect of the

public. It is immaterial that the conduct

deemed objectionable is probably lawful albeit

unjudicial or that it is perceived as lowhu-

mored horseplay.

In particular, a judge should refrain from

participation in activities which may tend to

lessen public respect for his judicial office

and avoid conduct which may give rise to a

reasonable belief that he has so participated.

In fact even in his private life a judge must

adhere to standards of probity and propriety

higher than those deemed acceptable for oth-

ers. While a judge does have the right to

entertain his personal views on controversial

issues and is not required to surrender his

rights or opinions as a citizen his right of

free speech and free association are limited

from time to time by his official duties and

he must be most careful to avoid becoming

involved in public controversies".

[pp. 594~596]

In Sampath Kumar & Ors. v. Union of India & Ors, [1985 ]

4 S.C.C. 458, dealing with the qualifications, accomplish-

ments and attainments of the members of the Administrative

Tribunal, which were intended to substitute for the High

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Courts, this court emphasised the qualities essential for

discharging judicial functions.

60. But we are afraid the proposition that, apart from

the constitutional machinery for removal of a Judge, the

judiciary itself has the jurisdiction and in appropriate

cases a duty to enquire into the integrity of one of its

members and restrain the Judge from exercising judicial

functions is beset with grave risks. The court would then

indeed be acting as a tribunal1 for the removal of a Judge.

Learned counsel supporting the proposition

71

stated that the effect of restraining a Judge from exercis-

ing judicial functions is not equivalent to a removal be-

cause the conditions of service such as salary etc. of a

Judge would not be impaired. But we think that the general

proposition that the court itself has such a jurisdiction is

unacceptable. It is productive of more problems then it can

hope to solve.

61. The relief of a direction to restrain the Judge from

discharging judicial functions cannot be granted. It is the

entire Constitutional Scheme including the provisions relat-

ing to the process of removal of a Judge which are to be

taken into account for the purpose of considering this

aspect. It is difficult to accept that there can be any

right in anyone running parallel with the Constitutional

Scheme for this purpose contained in clauses (4) and (5) of

Article 124 read with Article 121. No authority can do what

the Constitution by necessary implication forbids. Inciden-

tally, this also throws light on the question of interim

relief in such a matter having the result of restraining the

Judge from functioning judicially on initiation of the

process under the Judge (Inquiry) Act, 1968. The Constitu-

tional Scheme appears to be that unless the alleged misbeha-

viour or incapacity is 'proved' in accordance with the

provisions of the law enacted under Article 124(5) and a

motion for presenting an address for removal of the Judge on

the ground of proved misbehaviour or incapacity is made,

because of the restriction contained in Article 121, there

cannot be a discussion about the Judge's conduct even in the

Parliament which has the substantive power of removal under

Article 124(4). If the Constitutional Scheme therefore is

that the Judge's conduct cannot be discussed even in the

Parliament which is given the substantive power of removal,

till the alleged misconduct or incapacity is 'proved' in

accordance with the law enacted for this purpose, then it is

difficult to accept that any such discussion of the conduct

of the Judge or any evaluation or inferences as to its merit

is permissible according to law elsewhere except during

investigation before the Inquiry Committee constituted under

the statute for this purpose. The indication, therefore, is

that interim direction of this kind during the stage of

inquiry into the alleged misbehaviour or incapacity is not

contemplated it being alien to our Constitutional Scheme.

62..The question of propriety is, however, different

from that of legality. The absence of a legal provision,

like Article 3 17(2) in the case of a Member of Public

Service Commission, to interdict the Judge faced with such

an inquiry from contining to discharge judicial functions

pending the outcome of the inquiry or in the event of a

finding of misbehaviour or incapacity being proved till the

process of removal under Article 124(4) is complete, does

not necessarily indicate that the Judge shall continue to

function during that period. That area is to be covered by

the

72

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sense of propriety of the learned Judge himself and the

judicial tradition symbolised by the views of the Chief

Justice of India. It should be expected that the learned

Judge would be guided in such a situation by the advice of

the Chief Justice of India, as a matter of convention unless

he himself decides as an act of propriety to abstain from

discharging judicial functions during the interregnum. Since

the learned Judge would continue to hold the office of a

Judge unless he resigns or is removed, an arrangement to

meet the situation has to be devised by the Chief Justice.

The Constitution while providing for the suspension of a

Member of a Public Service Commission in Article 3 17 (2) in

a similar situation has deliberately abstained from making

such a provision in case of higher constitutional function-

aries, namely, the Superior Judges and President and Vice-

President of India, facing impeachment. It is reasonable to

assume that the framers of Constitution had assumed that a

desirable convention would be followed by a Judge in that

situation which would not require the exercise of a power of

suspension. Propriety of the desirable course has to be

viewed in this perspective. It would also be reasonable to

assume that the Chief Justice of India is expected to find a

desirable solution in such a situation to avoid embarrass-

ment to the learned Judge and to the Institution in a manner

which is conducive to the independence of judiciary and

should the Chief Justice of India be of the view that the

interests of the institution of judiciary it is desirable

for the learned Judge to abstain from judicial work till the

final outcome under Article 124(4), he would advise the

learned Judge accordingly. It is further reasonable to

assume that the concerned learned Judge would ordinarily

abide by the advice of the Chief Justice of India. All this

is, however, in the sphere of propriety and not a matter of

legal authority to, permit any court to issue any legal

directive to the Chief Justice of India for this purpose.

Accordingly Contention F is rejected.

RE:CONTENTION (G)

63. This relates to the mala fides alleged against the

Speaker. The

averments in this behalf are identical in both Raj

Birbal's and Sham Ratan Khandelwal's peti-

tions. We may notice the relevant averments:

"It is, therefore, disconcerting to note that

the Speaker acted contrary to Constitutional

practice. It is assumed that this high Consti-

tutional functionary would have known of the

well settled and established constitutional

practice in regard to the fact that motions

lapse with the dissolution of the House. The

action of the Speaker, therefore, in admitting

the motion in the manner that he did, smacks

of mala fides and, therefore, de-

73

serves to be struck down.

The action of the Speaker is mala fide on yet

another count. The Speaker has not resigned

from the primary membership of the Janta Dal.

The petitioners verily believe that the first

signatory to the motion is the erstwhile Prime

Minister of India Shri V.P. Singh who happens

also to be the leader of the Janta Dal. The

signatories to the said motion, the petition-

ers verily believe, belong mostly to the Janta

Dal, though the details of this fact are not

precisely known to the petitioners. The Speak-

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er, as has been indicated earlier, ought to

have allowed parliament to look into the

matter and discuss as to whether or not the

motion ought to be admitted. The Speaker ought

to have at least tabled the motion in the

House to ascertain the views of the Members of

parliament belonging to various Houses. The

Speaker, to say the least, ought to have

transmitted all materials to Justice Ramaswami

and sought a response from him before attempt-

ing to admit the motion. The Speaker ought to

have dealt with the motion much earlier and

transmitted to Justice Rammaswami all the

materials as well as the views that might have

been expressed to him in the course of his

consultations which enabled him to come to a

decision. The Speaker in the very least ought

to have ascertained the wishes of the House in

this regard. The Speaker ought not to have

decided to admit the motion in the manner he

did on the last evening of the 9th Lok Sabha

amidst din and noise, when what he spoke was

also not entirely audible in the House. The

Speaker is a high Constitutional functionary

and ought to have exercised

his functions in the highest traditions of the

office of this high constitutional function-

ary. The Speaker ought also not to have dealt

with the motion, the prime movers of which are

members of his own party. 'the Speaker ought

to have disqualified himself in this regard

and placed the matter for the discussion of

the House. The conduct of the Speaker in this

entire episode was unbecoming of a high Con-

stitutional functionary. The action of the

Speaker is mala fide and deserves to be struck

down on this count alone."

The averments as to mala fides are intermixed with and

inseparable from touching the merits of certain constitu-

tional issues. Indeed, mala fides are sought to be impugned

to the Speaker on the grounds that he did

74

not hear the Judge, did not have the motion discussed in the

House etc. We have held these were not necessary.

64. But a point was made that the Speaker not having

entered appearance and denied these allegations on oath must

be deemed to have admitted them. It appears to us that even

on the allegations made in the petition and plea of mala

fides which require to be established on strong grounds, no

such case is made out. A case of mala fides cannot be made

out merely on the ground of political affiliation of the

Speaker either. That may not be a sufficient ground in the

present context. At all events, as the only statutory au-

thority to deal with the matter, doctrine of statutory

exceptions or necessity might be invoked. Contention G

cannot therefore be accepted.

RE :CONTENTION (H)

65. This pertains to the locus standi of "Sub-Committee

on the Judicial Accountability" and the Supreme Court Bar

Association to maintain the proceedings. If this is true,

then the petitioners in Transfer Petition No. 278 of 1991

and other writ petitions challenging the Speaker's decision

would not also have the necessary standing to sue. The law

as to standing to sue in public interest actions had under-

gone a vast change over the years and liberal standards for

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determining locus standi are now recognised. The matter has

come to be discussed at considerable care and length in S.P.

Gupta & Ors. etc. v. Union of India & Ors. etc. etc., [1982]

2 SCR 365. The present matter is of such nature and the

constitutional issues of such nature and importance that it

cannot be said that members of the Bar, and particularly the

Supreme Court Bar Association have no locus standi in the

matter. An elaborate re-survey of the principles and prece-

dents over again is unnecessary. Suffice it to say that from

any point of view the petitioners satisfy the legal equip-

ments of the standing to sue. We, therefore, reject the

Contention H.

66. We are constrained to say that certain submissions

advanced on the prayer seeking to restrain the learned judge

from functioning till the proceedings of the committee were

concluded lacked as much in propriety as in dignity and

courtesy with which the learned judge is entitled. The

arguments seemed to virtually assume that the charges had

been established. Much was sought to be made of the silence

of the Judge and his refusal to be drawn into a public

debate. If we may say so with respect, learned judge was

entitled to decline the invitation to offer his explanation

to his detractors, No adverse inference as to substance and

validity of the

75

charges could be drawn from the refusal of the learned judge

to recognise these forums for his vindication. While the

members of the bar may claim to act in public interest they

have, at the same time, a duty of courtesy and particular

care that in the event of the charges being found baseless

or insufficient to establish any moral turpitude, the judge

does not suffer irreparably in the very process. The ap-

proach should not incur the criticism that it was calculated

to expose an able and courteous judge to public indignity

even before the allegations were examined by the forum

constitutionally competent to do so. We wish the level of

the debate both in and outside the Court was more decorous

and dignified. Propriety required that even before the

charges are proved in the only way in which it is permitted

to be proved, the Judge should not be embarrassed. The

constitutional protection to Judges is not for theft person-

al benefit; but is one of the means of protecting the judi-

ciary and its independence and is, / therefore, in the

larger public interest. Recourse to constitutional methods'

must be adhered to, if the system were to survive. Learned

Judge in his letter to the Registrar-General which he de-

sired to be placed the Court had, indeed, expressed deep

anguish at the way the petitioners had been permitted them-

selves to sit in judgment over him and deal with him the way

they did.

RE: CONTENTION (I)

67. This argument suggests that the court should, having

regard to the nature of the area the decision of the court

and its writ is to operate in, decline to exercise its

jurisdiction, granting it has such jurisdiction. It is urged

that any decision rendered or any writ issued might, in the

last analysis, become futile and infructuous as indeed the

Constitution of and investigation by the committee are not,

nor intended to be, an end by themselves culminating in any

independent legal consequences but only a proceeding prelim-

inary to and preceding the deliberations of the House on the

motion for the presentation of an address to the President

for the removal of a Judge. The latter, it is urged, is

indisputably with in the exclusive province of the Houses of

parliament over which courts exercise no control or juris-

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diction. The constitution of and the proceedings before the

committee are, it is urged, necessarily sequential to and

integral with the proceedings in the Houses of Parliament.

SinCe the committee and its investigations have neither any

independent existence nor separate legal effect-otherwise

than as confined to, and for the purposes and as part of the

possible prospective proceedings in the Houses of Parlia-

ment, the court should decline to exercise jurisdiction on a

matter which is of no independent legal consequence of its

own and which, in the last analysis, falls and remains

entirely in an area outside the courts' jurisdiction. It is

urged

76

that both from the point of view of infructuousness, propri-

ety and futility, the court should decline the invitation to

interfere even though that part of the proceedings pertain-

ing to the constitution of the committee might not strictly

be within the exclusive area of Parliament. Courts, it is

urged, would not allow its process to expect in a matter

which will eventually merge in something over which it will

have no jurisdiction.

68. The elements of infructuousness, it is suggested,

arise in two areas. The first is, as is posited, what should

happen if the Houses of Parliament choose to say that in

their view the motion has lapsed? Would the court then go

into the legality of the proceedings of the Houses of Par-

liament and declare the decision of the House void?

The second area of the suggested source of infructuous-

ness is as to the consequences of the position that the

Houses of Parliament would, notwithstanding the report of

the committee, be entitled to decide not to present an

address to the President to remove the Judge. It is, it is

said, for the House of Parliament to discipline the Govern-

ment if the House is of the view that Government is guilty

of an illegal inaction on the Speaker's decision as ulti-

mately the House has dealt with the committee's report.

69. On the first point there is and should be no diffi-

culty. The interpretation of the law declared by this court

that a motion under section 3(2) of the Judges (inquiry)

Act, 1968, does not lapse upon the dissolution of the House

is a binding declaration. No argument based on an assumption

that the House would act in violation of the law need be

entertained. If the law is that the motion does not lapse,

it is erroneous to assume that the Houses of Parliament

would act in violation of the law. The interpretation of the

law is within the exclusive power of the courts.

70. So far as the second aspect is concerned, what is

now sought by the petitioners who seek the enforcement and

implementation of the Speaker's decision is not a direction

to the committee to carry out the investigation. Such a

prayer may raise some issues peculiar to that situation. But

here, the Union. Government has sought to interpret the

legal position for purposes of guiding its own response to

the situation and to regulate its actions on the Speaker's

decision. That understanding of the law is now found to be

unsound.

All that is necessary to do is to declare the correct

constitutional position. No specific writ of direction need

issue to any authority. Having regard to the nature of the

subject matter and the purpose it is ultimately intended to

serve all that is necessary is to declare the legal and

constitu-

77

tional position and leave the different organs of the State

to consider matters falling within the orbit of their re-

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spective jurisdiction and powers. Contention I is disposed

of accordingly.

71. In the result, for the foregoing reasons, Writ

Petition Nos. 491 and 541 of 1991 are disposed of by the

appropriate declarations of the law as contained in the

judgment.

Writ Petition Nos. 542 and 560 of 1991 are dismissed.

Transfer Petition No. 278 of 1991 is allowed. Writ

Petition No. 1061 of 1991 is withdrawn from the Delhi High

Court. The transferred writ petition is also dismissed.

SHARMA, J. I have gone through the erudite Judgment of

my learned Brothers, and I regret that I have not been able

to persuade myself to share their views. In my opinion, all

these petitions are fit to be dismissed.

The stand of the petitioners in W.P. (C) Nos. 491 of

1991 and 541 of 1991 is that the inquiry with respect to the

alleged misbehaviour of Mr. Justice V. Ramaswami, the third

respondent in W.P. (C) No. 491 of 1991, which was referred

to a Committee under the provisions of the Judges (inquiry)

Act, 1968 ought to proceed and accordingly the Union of

India must take all necessary steps.

2. The main arguments on their behalf have been ad-

dressed by Mr. Shanti Bhushan, Mr. Ram Jethmalani and Mr.

R.K.Garg, all appearing for the petitioners in W,P. (C) No.

491 of 1991, which has been treated as the main case. Al-

though in substance their stand is similar, they are not

consistent on some of the points debated during the heating

of the case. They have been supported in general terms by

Ms. Indira Jaising and Mr. P.P. Rao, the learned counsel

representing the Supreme Court Bar Association, the peti-

tioner in W.P. (C) No. 541 of 1991, and for the sake of

convenience the petitioners in these two cases shall be

hereinafter referred to as the petitioners. The opposite

point of view has been pressed by Mr. Kapil Sibal, on behalf

of Mrs. Raj Birbal, the petitioner in T.P. (C) No. 278 of

1991, Mr. V.R.Jayaraman intervenor in W.P. (C) No. 491 of

1991 and Mr. Shyam Ratan Khandelwal, the petitioner in

W.P.(C) No. 560 of 1991; and in view of their stand, they

shall be referred to as respondents in this judgment.

3. The Committee for the investigation into the alleged

misbehaviour of the third respondent was constituted on

12.3.1991 under the provi-

78

sions of the Judges (inquiry) Act, 1968 (hereinafter re-

ferred to as the Act) by Shri Rabi Ray, the then Speaker of

the Lok Sabha, not a party in W.P. (C) Nos. 491 of 1991 and

541 of 1991, but impleaded by Mr. Shyam Ratan Khandelwal as

respondent No. 1 in W.P. (C) No. 560 of 1991. The Lok Sabha

was dissolved the very next day, i.e. 13.3.1991.

4. Mr. Attorney General appearing on behalf of the

Union of India has contended that this Court should affirm

the views expressed by the Union of India in its affidavit

that on dissolution of the last Lok Sabha, the Motion

against the third respondent lapsed and the matter cannot

proceed further.

5. According to the case of the petitioners, once the

Committee was constituted, the entire inquiry must be com-

pleted in accordance with the provisions of the Act, and the

stand of the Union Government that the Motion in this regard

lapsed on the dissolution of the House is fit to be reject-

ed. The Union Government, in the circumstances, is under a

duty to act in such manner by way of providing funds et

cetera, that it may be practically possible for the Commit-

tee to complete its task. Since the obligation to act ac-

cordingly, arises under the Act, this Court has full author-

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ity to enforce the performance of the statutory duty; and

having regard to the circumstances in the present case it is

appropriate to exercise that power.

The petitioners further pray that in the meantime the

third respondent should not undertake to dispose of judicial

matters, and since he has not himself refrained from so

doing, no judicial work should be allotted to him. The Chief

Justice of India has also been impleaded as a party respond-

ent but this Court while issuing Rule Nisi after hearing

learned counsel for the parties, did not consider it expedi-

ent to issue notice to the Chief Justice. A prayer for

interim direction in this regard was also rejected. During

the hearing of the cases another application to the same

effect was filed and was heard at considerable length and

ultimately rejected by a reasoned order.

6. Mr. Sibal, the learned counsel for the respondents

has challenged the maintainability of the writ petitions, on

the ground that the matter is not justiciable. It was fur-

ther argued that since the Speaker proceeded to admit the

Notice of Motion initiated by 108 Members of the Lok Sabha

without reference to the House, the order of the Speaker was

void, and the constitution of the Committee is ultra vires.

The Speaker's order has been challenged also on the grounds

of violation of principles of natural justice and mala

fides. So far as the effect of the dissolution of the

79

last Lok Sabha is concerned the respondents have supported

the stand of the Union Government that the Motion has

lapsed, but consistent with their plea. of non-justiciabili-

ty, Mr. Sibal has indicated that it is for the House to

decide this issue.

Long arguments were addressed by the learned counsel for

the parties on the correct interpretation of Article 124(4)

and (5) and the Act, and Mr. Sibal has contended that if the

construction suggested by him of the provisions of the Act

are not accepted, the Act has to be struck down either in

its entirety or in part as ultra vires the Constitution.

In W.P. (C) No. 560 of 1991 Mr. Shyam Ratan Khandelwal

has, inter alia, prayed for declaring the Judges (Inquiry)

Act, 1968 and the Rules framed thereunder as ultra vires

Article 121 and 124(5) of the Constitution; for quashing the

decision of the Speaker; and, for issuing a Writ of Mandamus

to the Committee not to embark upon or proceed with the

inquiry. He also wants a declaration that the Chief Justice

of India cannot withhold allocation of work to the third

respondent for discharging his judicial functions, and seeks

for consequential directions in this regard. During the

course of his argument, Mr. Sibal, in reply to a query from

the Bench, clarified the position that if his plea of non-

justiciability is accepted, all the petitions may have to be

dismissed.

7. It is appropriate that the point relating to the

jurisdiction of this Court, and for that matter of any court

in India, is considered first. If the stand of the respond-

ents is correct on this issue, it may not be necessary to

deal with the other questions raised by the parties. In

support of his argument, Mr. Sibal has relied upon the

provisions of Article 122(2) of the Constitution read with

Article 93, and has urged that the present matter relates to

the conduct of the business of the Lok Sabha and is included

within the functions of regulating its procedure, and as

such the Speaker who is a Member and officer of the Parlia-

ment cannot be subjected to the jurisdiction of any Court in

respect of the exercise of those powers. The questions

whether the Motion on the basis of which the present inquiry

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by the Committee has been ordered has lapsed or not and

whether the inquiry should further proceed or not are for

the House to determine, and its decision will be final.

Reference was also made to Article 100, but the learned

counsel clarified his stand that in the present context a

special majority as indicated in Article 124(4) will have to

be substituted for a simple majority mentioned in Article

100(1). It has been contended that the Speaker was not free

to take a decision by himself to refer the matter to the

Committee for inquiry and that too without hearing the Judge

concerned; and in any event his order is subject to any

decision

80

to the contrary of the House arrived at, at any stage.

Emphasis was laid on the concept of Separation of State

powers amongst its three wings, and it was claimed that all

matters within the House including moving of motions, ad-

journment motions and debates are beyond the purview of

judicial scrutiny. Counsel said that it does not make any

difference that in the present case it is the Union Govern-

ment, which has taken a decision for itself on the disputed

issue; and the petitioners cannot use this as an excuse for

approaching the Court. The Court should refuse to entertain

the writ petitions on this ground, as it cannot be persuaded

to do indirectly what it cannot do directly. The crux is

that the matter is in the exclusive domain of the Parlia-

ment.

8. Although in my final conclusion I agree with the

respondents that the courts have no jurisdiction in the

present matter, I do not agree with Mr. Sibal's contention

based on an assumption of the very wide and exclusive juris-

diction of the Parliament in the general terms, as indicated

during his argument. His stand that the Speaker could not

have taken a decision singly also does not appear to be well

founded. He strenuously argued that since the matter relat-

ing to the removal of a Judge is from the very beginning

within the exclusive control of one of the Houses of the

Parliament every decision has to be taken by the entire

House and if necessary a debate will have to be permitted.

As a result, the bar on discussion in the House on the

Judges' conduct will disappear from the initial stage it-

self, but that cannot be helped. He relied upon the inter-

pretation of Mr. M.C.Setalvad on clauses 4 & 5 of Article

124 as stated by him before the Joint Committee on the

Judges (inquiry) Bill, 1964 (being Bill No. 5 of 1964 which

was ultimately dropped) and his view that the desired object

of avoiding debate on the conduct of a Judge in the Parlia-

ment can be achieved only by the Speaker carefully exercis-

ing his discretion after taking into account the impropriety

of such a debate.

9. Although the powers of State has been distributed by

the Constitution amongst the three limbs, that is the Legis-

lature, the Executive and the Judiciary, the doctrine of

Separation of Powers has not been strictly adhered to and

there is some overlapping of powers in the gray areas. A few

illustrations will show that the courts' jurisdiction to

examine matters involving adjudication of disputes is sub-

ject to several exceptions. Let us consider a case in which

an individual citizen approaches the Court alleging serious

violation of his fundamental rights resulting in grave and

irreparable injury, arising as a consequence of certain

acts, and the decision of his claim is dependent on the

adjudication of a dispute covered by Article 262 or Article

363. He does not have a legal remedy before the courts.

Similarly a Member of Parliament or of a State Legislature

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who

81

may have a just grievance in matters covered by Article

122(2) or 212(2) cannot knock the doors of the courts. Let

us take another example where a group of citizens residing

near the border of the country are in imminent danger of a

devastating attack from an enemy country in which they are

sure to lose large number of lives besides theft property.

This can be averted only by accepting the terms offered by

the enemy country, which are in their opinion reasonable and

will be highly in the interest of the nation as a whole. The

concerned authorities of the State, however, hold a differ-

ent view and consider starting a war immediately as an

unavoidable strategy, even in the face of imminent danger to

the border area. On an application by the aggrieved citi-

zens, the Court cannot embark upon an inquiry as to the

merits and demerits of the proposed action of the State nor

can it direct that the residents of the threatened area must

be shifted to some safe place before starting of the war.

The examples can be multiplied. Generally, questions involv-

ing adjudication of disputes are amenable to the jurisdic-

tion of the courts, but there are exceptions, not only those

covered by specific provisions of the Constitution in ex-

press terms, but others enjoying the immunity by necessary

implication arising from established jurisprudential princi-

ples involved in the Constitutional scheme. It was observed

by this Court in Smt. Indira Gandhi v. Raj Narain, [1976] 2

SCR 347 at page 415, that rigid Separation of Powers as

under the American Constitution or under the Australian

Constitution does not apply to our country and many powers

which are strictly judicial have been excluded from the

purview of the courts under our Constitution.

10. Judicial power of the State in the comprehensive

sense of the expression as embracing all its wings is dif-

ferent from the judicial power vested or intended to be

vested in the courts by a written Constitution. The issue

which arises in the present case is whether under the Con-

stitutional scheme a matter relating to the removal of a

Judge of the superior courts (Supreme Court or High Courts)

is within the jurisdiction of the courts or in any event of

this Court. On a close examination of the Constitution it

appears to me that a special pattern has been adopted with

respect to the removal of the members of the three organs of

the State---The Executive, the Legislature and the Judici-

ary--at the highest level, and this plan having been con-

sciously included in the Constitution, has to be kept in

mind in construing its provisions. The approach appears to

be that when a question of removal of a member of any of the

three wings at the highest level - i.e. the President; the

Members of the Parliament and the State Legislatures; and

the Judges of the Supreme Court and the High Courts -arises,

it is left to an organ other than where the problem has

arisen, to be decided.

82

11. The President has to be elected by the members of an

electoral college as prescribed by Article 54, in the manner

indicated in Article 55. Since he has to exercise his func-

tions in accordance with the advice tendered by the Council

of Ministers, the matter relating to his impeachment has

been entrusted by Article 61 to the Parliament. In the

constitution of the two Houses of the Parliament and the

Legislatures of the States, the people of the country are

involved more directly, through process of election and any

dispute arising therefrom is finally settled judicially.

When it comes to a disqualification of a sitting member, the

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matter is dealt with by Article 103 or 192 as the case may

be and what is significant for the purpose of the present

case is that instead of entrusting the matter to the rele-

vant House itself, the Constitution has provided for a

different machinery, not within the control of the Legisla-

ture. The decision on such a dispute is left to the Presi-

dent, and he is not to act on the advice of the Council of

Ministers, but in accordance with the opinion of the Elec-

tion Commission which has been held by this Court to be a

Tribunal falling squarely within the ambit of Article 136 of

the Constitution in All Party Hill Leaders Conference

v.M..A. Sangma, [1978] 1 SCR 393 at 411. Thus, the power to

decide a dispute is not to be exercised by the Legislature,

but lies substantially with the courts. Consistent with this

pattern clause (4) of Article 124 in emphatic terms declares

that a Judge of the Supreme Court or the High Court shall

not be removed from his office except on a special majority

of the Members of each House of Parliament. Both the Execu-

tive and the Judiciary are thus excluded in this process.

The provisions of the Constitution and the Act and relevant

materials which ,viII be discussed later all unmistakably

indicate this Constitutional plan.

12. The scheme, as mentioned above, which according to

my reading of the Constitution has been adopted, cannot be

construed as lack of trust in the three organs of the State.

There are other relevant considerations to be taken into

account while framing and adopting a written constitution,

which include the assurance to the people that the possibil-

ity of a subjective approach clouding the decision on an

issue as sensitive as the one under consideration, has been

as far eliminated as found practicable in the situation. And

where this is not possible at all, it cannot be helped, and

has to be reconciled by application of the doctrine of

necessity, which is not attracted here. Hamilton, in "The

Federalist", while discussing the position in the United

States, observed that when questions arise as to whether a

person holding very high office either in the Judiciary or

the Legislature or the President himself has rendered him-

self unfit to hold the office, they are of a nature which

relates chiefly to the injuries done immediately to the

society itself. Any proceeding for their removal will,

83

for this reason seldom fail to agitate the passions of the

whole community and divide it into parties more or less

friendly or inimical to the person concerned. The delicacy

and the magnitude of a trust which so deeply concerns the

reputation and existence of every man engaged in the admin-

istration of public affairs speak for themselves.

13. Mr. Sibal has further relied on Hamilton stating

that "the awful discretion which a court of impeachment must

necessarily have to doom to honour or to infamy the most

confidential and the most distinguished characters of the

community, forbids the commitment of the trust, to a small

number of persons." The counsel added that presumably that

is the reason that the question of removal of a Judge of the

superior court has been exclusively entrusted to the parlia-

ment and further in that spirit the Act requires a large

number of Members of the parliament to even give the Notice

of Motion. Quoting from 'Harvard Law Review' (1912-1913

vol.), counsel argued that judicial office is essentially a

public trust, and the right of the public to revoke this

trust is fundamental. In a true republic no man can be born

with a right to public office, Under such a system of gov-

ernment, office, whether elective or appointive, is in a

sense a political privilege. The grant of this privilege

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flows from the political power of'the people, and so, ulti-

mately must it be taken away by the exercise of the politi-

cal power resident in the people. After referring to the

view of many Jurists of international repute Mr. Sibal again

came back to "The Federalist", considering the inappropri-

ateness of the Supreme Court of United States of America to

be entrusted with the power of impeachment in the following

words:-- "It is much to be doubted whether the members of

that Tribunal at all times be endowed with so eminent a

portion of fortitude, as would be called for in the execu-

tion of so difficult a task, and it is still more to be

doubted whether they would possess the degree of credit and

authority, which might, on certain occasions be indispens-

able towards reconciling the people to their decision". I am

not sure whether these are the.precise considerations which

appealed to the framers of our Constitution to adopt the

Scheme as indicated earlier, but there is no doubt that the

subject dealing with the removal of the very high function-

aries in three vital limbs of the State, received special

treatment by the Constitution. My conclusion is further

supported by the materials discussed below.

14. Learned counsel for the parties referred to the

historical background of the relevant provisions of the

Constitution and the Act, as also to the constitutional

provisions of several other countries, as aid to the inter-

pretation of the legal position in relation to removal of

Judges of the superior courts. Mr. Sibal laid great emphasis

on the evidence of Mr.

84

Setalvad and several other persons before the Joint Commit-

tee on the Judges (inquiry) Bill, 1964. His argument is that

the Bill was dropped as a result of the opinion expressed

before the Joint Committee, and consequently another Bill

was drafted which was ultimately adopted by the Parliament

as the 1968./Act. The provisions of the earlier Bill, objec-

tions raised thereto, and the fact that the Act of 1968 was

passed on a subsequent Bill, reconstructed immediately after

the decision to drop the original Bill, are all permissible

aids to the interpretation of the legal position which has

to be ascertained in the present cases before us. Although

the learned counsel for the petitioners challenge their

admissiblity, portions of the documents referred to by Mr.

Sibal were attempted to be construed on behalf of the peti-

tioners as supporting their stand. In my view, it is permis-

sible to take into consideration the entire background as

aid to interpretation. The rule of construction of statutes

dealing with this aspect was stated as far back as in 1584

in Heydon's case: 76 E.R. 637, and has been followed by our

Court in a large number of decisions. While interpreting

Article 286 of our Constitution, reliance was placed by this

Court in the Bengal Immunity Company v. The State of Bihar,

[1955] 2 SCR 603 at 632 & 633, on Lord Coke's dictum in

Heydon s case and the observations. of the Earl of Halsbury

in Eastman Photographic Material Company v.. Comptroller

General of Patents L R., [1898] A.C. 571 at p. 576 reaffirm-

ing the rule in the following words:-

"My Lords, it appears to me that to construe

the statute in question, it is not only legit-

imate but highly convenient to refer both to

the former Act and to the ascertained evils to

which the former Act had given rise, and to

the later Act which provided the remedy. These

three being compared I cannot doubt the con-

clusion".

In B. Prabhakar Rao v. State of Andhra

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Pradesh, [1985] Suppl. 2 SCR 573, the observa-

tions at p. 591, quoted below, are illuminat-

ing:-

"Where internal aids are not forthcoming, we

can always have recourse to external aids to

discover the object of the legislation. Exter-

nal aids are not ruled out. This is now a well

settled principle of modern statutory con-

struction. Thus 'Enacting History' is rele-

vant: "The enacting history of an Act is the

surrounding corpus of public knowledge rela-

tive to its introduction into Parliament as a

Bill, and subsequent progress through, and

ultimate passing by, Parliament. In particular

it is the extrinsic material assumed to be

within the contemplation of Parliament when it

passed the Act." Again "In the period im-

85

mediately following its enactment, the history

of how an enactment is understood forms part

of the contemporanea expositio, and may be

held to throw light on the legislative inten-

tion. The later history may, under the doc-

trine that an Act is always speaking, indicate

how the enactment is regarded in the light of

development from time to time". "Official

statements by the government department admin-

istering an Act, or by any other authority

concerned with the Act, may be taken into

account as persuasive authority on the meaning

of its provisions". Justice may be blind but

it is not to be deaf. Judges are not to sit in

sound proof rooms.

Committee reports, Parliamentary debates,

Policy statements and public utterances of

official spokesmen are of relevance in statu-

tory interpretation. But 'the comity, the

courtsey and respect that ought to prevail

between the two prime organs of the State, the

legislature and the judiciary', require the

courts to make skilled evaluation of the extra

textual material placed before it and exclude

the essentially unreliable. "Nevertheless the

court, as master of its own procedure, retains

a residuary right to admit them where, in

rare cases, the need to carry out the legisla-

tor's intention appears to the court so to

require".

With a view to correctly interpret the Act which was the

subject matter of that case, the history and the succession

of events including the initial lowering the age of superan-

nuation, the agitation consequent upon it, and the agreement

that followed the agitation were all taken into considera-

tion. I, accordingly, propose to briefly state the relevant

background of both the Constitutional provisions and of the

Act.

15. At the time of framing of the Constitution of India,

the Constitutions of several other countries, which appeared

to be helpful were examined, and a Draft was initially

prepared. On the amendment moved by Sir Alladi Krishnaswamy

Iyyar the relevant provision was included in the Draft in

terms similar to section 72(ii) of the Commonwealth of

Australia COnstitution Act (1900) except the last sentence

in the following terms:-

"Further provision may be made by the Federal Law for the

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procedure to be adopted in this behalf."

When the matter was finally taken up by the Constituent

Assembly the Debates indicate that there was a categorical

rejection of the suggestion to entrust the matter to the

Supreme Court or a Committee of a

86

number of sitting Judges of the Supreme Court; and while

doing so, the law of the other Commonwealth countries were

taken into consideration. So far the last sentence of the

draft was concerned, Sir Alladi explained the position by

stating "that such a provision does not occur in other

Constitutions, but there is a tendency to overelaborate the

provisions on our side and that is the only justification

for my putting in that clause."

16. Before further considering the Debates and the other

steps in flaming of the Constitution, it may be useful to

appreciate the relevance and importance of the point which

has an impact on the controversial issue before us. Accord-

ing to the petitioners, the question relating to the removal

of a Judge comes to the Parliament only on receipt of a

report by the Committee under the Act. The Parliament or any

of its Houses, not being in the picture earlier, does not

have any control over the Committee, which is to function

purely as a statutory body, and, therefore, amenable to the

jurisdiction of this Court. If this stand is correct, what

was the position before 1968, when there was no Act? The

question is whether the Parliament did not have any power to

take any action even if an inquiry in the alleged misbeha-

viour or incapacity of a Judge was imminently called for. In

other words whether the exercise of the power under clause

(4) of Article 124 by the Parliament was dependent on the

enactment of a law under clause (5) and until this condition

was satisfied no step under clause (4) could be taken. If on

the other hand the Parliament's power was not subject to the

enactment of a law, was it divested of this jurisdiction

when it passed an Act? On what principle could the initial

jurisdiction of the Parliament disappear in 1968? Since this

aspect has a bearing, it was the subject matter of some

discussion during the arguments of the learned advocates.

17. Mr. Sibal was emphatic in claiming that clause (5)

was enabling in nature, and clause (4) could not be inter-

preted as dependent on clause (5). He relied on Mr. Setal-

vad's evidence before the Joint-Committee of Bill No. 5 of

1964. The stand of Mr. Shanti Bhushan, instructed by Mr.

Prashant Bhushan, the Advocate-on-record on behalf of the

petitioner in the leading case Writ Petition (C) No. 491 of

1991, has been that clause (5) was merely enabling, but not

in the sense as stated by Mr. Setalvad in his evidence. In

the view of the latter, it is open to the Parliament either

to follow the procedure laid down by an Act made under

clause (5) or to ignore the same in any case and adopt any

other procedure. In other words, even after the passing of

the 1968 Act, the Parliament can choose either to proceed

according to the said Act or to act independently ignoring

the same. Mr. Shanti Bhushan said that this is not permissi-

ble. Once the 1968 Act was enacted, the Parliament is bound

to follow it, but earlier

87

it was free to proceed as it liked. He, however, was quite

clear in his submission that the exercise of power under

clause (4) could not be said to be conditional on the enact-

ment of a law under clause (5), and that to interpret the

provisions otherwise would lead to the extraordinary result

that the Parliament was in a helpless condition for about 18

years till 1968, if a Judge was rendered unfit to continue.

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I agree with the learned counsel.

18. The other learned advocates appearing for the peti-

tioners did not advert to this aspect pointedly. The stand

of Mr. Garg is that whether or not the third respondent is

removed, or whether the inquiry proceeds before the Commit-

tee or not, he must cease to function as a Judge, as his

image being under a cloud, must be cleared so that the

people may have trust in the judiciary. Mr. Ram Jethmalani,

the other learned counsel who appeared on behalf of the

petitioner in Writ petition (C).No. 491 of 1991, was ini-

tially of the view as Mr. Shanti Bhushan on the co-relation

of clause (4) and (5), but after some discussion, he recon-

sidered the position and took a positive stand that the

exercise of power under clause (4) was dependent on a law

being enacted under clause (5), and that the Parliament was

bound to proceed in accordance with the provisions of the

Act.

19. Now coming back to the Debates, Mr. Santhanam sug-

gested an amendment for including more details to which the

answer of Sir Alladi was as follows:

"We need not be more meticulous and more

elaborate than people who have tried a similar

case in other jurisdictions. I challenge my

friend to say whether there is any detailed

provision for the removal of Judges more than

that in any other Constitution in the world".

He requested the House to accept the general principle,

namely, that the President in consultation with the Supreme

Legislature of this country shall have that right, and

assured that, "That does not mean that the Supreme Legisla-

ture will abuse that power". He rejected the idea of making

further additions to the provision relating to the framing

of the law by saying, "To make a detailed provision for all

these would be a noble procedure to be adopted in any Con-

stitution. You will not find it in any Constitution, not

even in the German Constitution which is particularly de-

tailed, not in the Dominion Constitution and not even in the

Act of Settlement and the later Acts of British Parliament

which refer to the" removal of Judges". Some members strong-

ly suggested that the Supreme Court of India or a number of

sitting Judges of the Court should be

88

involved in the proceeding, to which Sir Alladi had strong

objection. He called upon the members, "not to provide a

machinery consisting of five or four Judges to sit in judg-

ment over a Chief Justice of the Supreme Court. Are you

really serious about enhancing the dignity of the Chief

Justice of India ? You are. I have no doubt about it". The

clause was ultimately drafted as mentioned above vesting the

power in the "Supreme Parliament" as "there must be some

power of removal vested somewhere". He pointed out that the

matter was not being left in the discretion of the either

House to remove a Judge, but ultimate soverign power will be

vested in the two Houses of the Parliament and, "that is the

import of my amendment". In this background, the Article was

finally included in the Draft.

Although as was clear from the statements of Sir Alladi

as also the language used, the intention of the Sub-commit-

tee preparing the Draft was not to make clause (4) dependent

on clause (5), still presumably with a view to allaying any

misapprehension which could have arisen by including the

entire provisions in one single clause, they were divided

and put in two separate clauses and while so doing, the

language was slightly changed to emphasise the limited scope

of the law. Clause (4) does not state that the misbehaviour

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or incapacity of the Judge will have to be proved only in

accordance with a law to be passed by the Parliament under

clause (5). Clause (4) would continue to serve the purpose

as it does now, without any amendment if clause (5) were to

be removed from the Constitution today. There is no indica-

tion of any limitation on the power of the Parliament to

decide the manner in which it will obtain a finding on

misbehaviour or incapacity for further action to be taken by

it. Clause (5) merely enables the Parliament to enact a law

for this purpose, if it so chooses. The word 'may' has been

sometimes understood in the imperative sense as 'shall', but

ordinarily it indicates a choice of action and not a com-

mand. In the present context, there does not appear to be

any reason to assume that it has been used in its extraordi-

nary meaning. It is significant to note that while fixing

the tenure of a Judge in clause (2) of Article 124, proviso

Co) permits the premature removal in the manner provided in

clause (4) without mentioning clause (5) at all. The signif-

icance of the omission of clause (5) can be appreciated by

referring to the language of clause 2(A) of Article 124

directing that the "age of a Judge of the Supreme Court

shall be determined by such authority and in such manner as

Parliament may by law provide".

On an examination of all the relevant materials, I am of

the view that the exercise of power under clause (4) was not

made conditional on the enactment of a law under clause (5),

and the reason for inserting

89

clause (5) in Article 124 was, as indicated by Sir Alladi,

merely for elaborating the provisions.

20. The other provisions with reference to which the

matter needs further examination are Article 121 of the

Constitution and the Act of 1968. The object of Article 121

is to prevent any discussion in Parliament with respect to

the conduct of a Judge of the Superior Courts, except when

it cannot be avoided. The Article, accordingly, prohibits

such a discussion except upon a motion for presenting an

'address' to the President for removal of a Judge. The point

is that if the entire proceeding in regard to the removal of

a Judge from the very initial stage is assumed to be in the

House, does the bar under Article 121 get lifted at that

very stage, thus frustrating the very purpose of the Arti-

cle. There is a complete unanimity before us, and rightly

so, that the object of Article 121 to prevent a public

discussion of the conduct of a Judge is in public interest

and its importance cannot be diluted. Mr. Shanti Bhushan

elaborated this aspect by saying that any such discussion in

the House is bound to be reported through the media and will

thus reach the general public and which by itself, irrespec-

tive of the final outcome of the discussion, will damage the

reputation of the Judge concerned and thereby the image of

the entire judiciary; and must not, therefore, be permitted

until a report against the Judge after a proper inquiry is

available. Mr. Sibal also agreed on the significance of

Article 121 and relied on the views of several eminent

international jurists, but we need not detain ourselves on

this point, as there is no discordant note expressed by

anyone before us. The question, however, is as to whether

the object of Article 121 will be defeated, if clause (4) of

Article 124 is construed as complete in itself and independ-

ent of clause (5), and clause (5) be understood as merely

giving an option to the Parliament to enact a law, if it so

chooses; and further whether the inquiry before the Commit-

tee is within the control of the House of the Parliament so

as to exclude an outside interference by any other authori-

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ty, including the courts.

21. It is true that the provisions of an Act control or

determine the constitutional provisions, but where the

meaning of an Article is not clear it is permissible to take

the aid of other relevant materials. Besides, in the present

context, where it is necessary to assess the effect of the

construction of the other provisions of the Constitution and

of the Act on Article 121, the Act provides useful assist-

ance; and its importance has been greatly enhanced in view

of the points urged in the arguments of the learned counsel

for the parties before us. All the learned advocates for the

petitioners as also the Attorney General are positive that

the Act is a perfectly valid piece of legislation and no

part of it is illegal or ultra vires. It is on

90

this premise that the writ petitions of the petitioners have

been filed and the reliefs are prayed for. Mr. Sibal repre-

senting the respondents has halfheartedly challenged the

Act, making it clear at the same time that if his interpre-

tation of the provisions is accepted no fault can be found

with the Act. Besides, the foundation of the reliefs, asked

for in the writ petitions, is the Act and the inquiry there-

under and if the Act itself goes, the reference to the

Committee of Inquiry itself will have to be held as nonex-

istent in the eye of Law and the writ petitions will have to

be rejected on that ground alone. We must, therefore, assume

for the purpose of the present cases, that the Act is good

and on that basis if the petitioners be found to be entitled

to any relief, it may be granted. I am emphasising this

aspect as the Act gives a complete answer to the main ques-

tion as to whether the Committee is subject to the control

of the Lok Sabha, and whether this construction of the

provisions defeats the purpose of Article 121.

22. The Judges (inquiry) Act, 1968 is a short enactment

containing only seven sections. Section 1 gives the title

and the date of commencement, Section 2 contains definitions

and Section 7 deals with power to make rules. The expression

"motion" which has not been defined in the Act is signifi-

cant in the scheme and naturally, therefore, has been sub-

ject of considerable discussion during the hearing of these

cases. The Lok Sabha Rules flamed under Article 118 of the

Constitution deal with "motions" in Chapter XIV. There are

separate rules of procedures for conduct of business adopted

by the Rajya Sabha. In view of the facts of this case, I

propose to refer only to the Lok Sabha Rules. Section 3(1)

of the Judges (Inquiry) Act, 1968 states that if a notice

of"motion" is given for presenting an address to the Presi-

dent for the removal of a Judge, signed, in the case of a

notice given in the Lok Sabha, by not less than 100 members,

and in the case of a notice given in the Rajya Sabha, by not

less than 50 members of the House, the Speaker or the Chair-

man, as the case may be, after consulting such persons as he

deems fit, as also such relevant materials which may be

available to him, either admit the "motion" or refuse to

admit the same. The manner in which this section refers to

"motion" in the Act for the first time without a definition

or introduction clearly indicates that it is referring to

that "motion" which is ordinarily understood in the context

of the two Houses of Parliament attracting their respective

rules. Section 3 does not specify as to how and to whom this

notice of "motion" is to be addressed or handed over and it

is not quite clear how the Speaker suddenly comes in the

picture unless the Lok Sabha Rules are taken into account.

Rule 185 states that notice of "motion" shall be given in

writing addressed to the Secretary General and its' admissi-

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bility should satisfy the conditions detailed in Rule 186.

Rule 187 directs the

91

Speaker to examine and decide the admissibility of a "mo-

tion" or a part thereof. Rule 189 says that if the Speaker

admits notice of a "motion" and no date is fixed for discus-

sion of such "motion", it shall be notified in the BUlletin

with the heading "No,Day-Yet-Named Motions". It is at this

stage that 1968 Act by Section 3(1) takes over the matter

and asks the Speaker to take a decision for admitting this

"motion" or refusing it after consulting such persons and

materials as he deems fit. The conclusion is irresistible

that the provisions of the Act have to be read along with

some of the Lok Sabha Rules. Rules 185, 186 and 187 should

be treated to be supplementary to the Act. Then comes sub-

section (2) of Section 3 which is of vital importance in the

present context. It says that if the "motions" referred to

in sub-section (1) is admitted, the Speaker "shall keep the

motion pending" and constitute a Committee for investigation

into the allegations consisting of three members of whom one

shall be chosen among Chief Justice and other Judges of the

Supreme Court and another from among the Chief Justices of

the High Court.

23. The situs where the "motion" is pending is almost

conclusive on the issue whether the House is seised of it or

not. Unless the "motion" which has to remain pending, as

directed by Section 3(2) is outside the House and the Speak-

er while admitting it acts as a statutory authority and not

qua Speaker of the Lok Sabha, as is the case of the peti-

tioners before us, the petitioners will not have any base to

build their case on. If the Speaker has admitted the "mo-

tion" in the capacity as the Speaker and consequently,

therefore, representing the House, and has constituted a

Committee, it will be entirely for him and through him the

House, to pass any further order if necessary about the

future conduct of the Committee, and not for this Court,

for, the Committee cannot be subjected to a dual control. So

the question to ask is where is the "motion" pending, which

is promptly answered by the provisions in the Act, by de-

claring that it remains pending in the House. Section 6

deals with the matter from the stage when the report of the

Committee is ready and sub-section (1) says that if the

report records a finding in favour of the Judge, "the motion

pending in the House" shall not be proceeded with. If the

report goes against the Judge, then "the motion referred to

in sub-section (1) of Section 2 shall, together with a

report of the Committee, be taken for consideration by the

House or the Houses of Parliament in which it is pending".

The Act, therefore, does not leave any room for doubt that

the "motion" remains pending in the House and not outside

it. This is again corroborated by the language used in

Proviso to Section 3 (2) which deals with cases where no-

tices of"motion" under Section 3(1) are given on the same

date in both Houses of Parliament. It says that in such a

situation, no Committee shall be constituted unless the

"motion" has been "admitted in

92

both Houses" and where such "motion"has been admitted "in

both Houses", the Committe shall be constituted jointly by

the Speaker and the Chairman. The rule making power dealt

with in Section 7 is in the usual terms enumerating some of

the subject matters without prejudice to the generality of

the power, and permits the Joint Committee of both Houses of

Parliament to frame the rules, and accordingly, the Judges

(Inquiry) Rules, 1969 were made. Rule 2(e) of these Rules

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describes "motion" as motion admitted under Section 3(1) of

the Act. Supplementing the provisions of Section 6(2), Rule

16(2) provides that "a copy of the motion admitted under

sub-section (1) of section 3 shall be reproduced as an

Annexure to such an address". Sub-rule (4) states that "the

address prepared under subrule (1) and the motion shall be

put to vote together in each House of Parliament". It is

clear that it is not an inadvertent reference in the Act of

the "motion" being pending in the House; the provisions

unmistakably indicate that the Act and the Rules envisage

and deal with a "motion" which is admitted in the House and

remains pending there to be taken up again when the date is

fixed by the Speaker on receipt of the report from the

Committee. The language throughout the Act has been consist-

ently used on this premise and is not capable of being

ingored or explained away. Nowhere in the Act or the Rules,

there is any provision which can lend any support to the

stand of the petitioners before us.

24. The scope of the Act and the Rules is limited to the

investigation in pursuance of a "Motion" admitted by the

Speaker. At the Conclusion of the investigation the Commit-

tee has to send the report to the Speaker (or the Chairman

as the case may be) along with a copy of the original Mo-

tion. If the finding goes against the Judge, section 6(2) of

the Act directs that the Motion, the same original Motion,

shall together with the report be taken up for consideration

by the House where the Motion is pending. The relevant part

of section 6(2) mentions:

"the Motion referred to in sub-section (1) of

section 3 shall together with the report of

the Committee, be taken up for consideration

by the House...... in which it is pending".

Rule 16(4) states that the address and the Motion shall

be put to vote together in each House of Parliament. What

the Act and the Rules contemplate is the original Motion to

be taken up for consideration by the House, and if this

Motion is held to have exhausted itself on admission by the

Speaker, as has been urged on behalf of the petitioners,

nothing remains on which the Act would operate. The concept

of the original Motion being pending in the House, to be

taken up for debate and vote on the receipt of the report of

the Committee, is the life and soul of the Act, and if that

Motion disappears nothing remains behind to attract the Act.

This

93

idea runs -through the entire Act and the Rules, and cannot

be allowed to be replaced by a substitute. The existence of

a Motion pending in the House is a necessary condition for

the application of the Act. Bereft of the same, the Act does

not survive. It is, therefore, not permissible to read the

Act consistent with the stand of the petitioners that the

House is not seised of the Motion and does not have anything

to do with the inquiry pending before the Committee, until

the report is received. If clauses (4) and (5) of Article

124 are construed as suggested on behalf of the petitioners,

the Act will have to be struck down as ultra vires, or in

any event inoperative and infructuous and on this ground

alone the Writ Petitions are liable to be dismissed.

25. It has been contended that if the Motion is held to

be pending in the House on its admission, the object of

Article 121 shall be defeated. The apprehension appears to

be misconceived. The mandate of the Constitution against

discussion on the conduct of a Judge in the House is for

everybody to respect, and it is the bounden duty of the

Speaker to enforce it. He has to ensure that Article 121 is

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obeyed in terms and spirit, and as a matter of fact there is

no complaint of any misuse during the last more than 41

years. The question, however, is whether it will not be

feasible for the Speaker to maintain the discipline, if the

Motion on admission becomes pending in the House. Before

1968 Act was passed, the motion, like any other motion, was

governed by the Lok Sabha Rules, and Rule 189 enabled the

Speaker to notify it as a No-Day-Yet-Named Motion without

fixing a date, and to permit the matter to be discussed only

at the appropriate stage. After the Act, what was left

within the discretion of the Speaker, has been replaced by

mandatory statutory provision, directing that the motion

shall remain pending in the House, to be taken up only on

receipt of a finding of the Committee against the Judge. The

pendency of the motion in the House, therefore, cannot be a

ground to violate Article 121.

26. Mr Sibal, however, claimed that the members of the

House are entitled to express their opinion on the proposed

endictment from the very initial stage and as a part of his

argument relied upon the statement of Mr. Setalvad before

the Joint-Committee. Mr. Shanti Bhushan challenged the views

of Mr. Setalvad on the ground that they would foul with

Article 121. I am afraid, the statements of Mr. Setalvad,

referred to above, have not been properly appeciated by

either side. The modified Bill, on the basis of which the

1968 Act was passed, had not been drafted by then and Mr.

Setalvad was expressing his opinion on the earlier Bill,

which substantially vested the power of removal of a Judge

in the Executive, and kept the Parliament out of the picture

until the receipt of a report on the

94

alleged misbehaviour or incapacity. If that Bill had been

passed, the effect would have been that the entire proceed-

ing beginning with the initiation of the inquiry and con-

cluding with the report would have remained completely

outside the House, an interpretation which is being attempt-

ed by the present petitioners before us, on the present Act

too. The objection to the entrustment of the power to the

Executive was mainly on the ground that the intention of the

Article 124 to leave the removal of a Judge in the hands of

the Parliament would be frustrated. In answer to a query of

the Chairman of the Committee, Mr. Setalvad said that as a

result of the provisions of the Bill (then under considera-

tion) the Parliament would be completely kept out until a

finding of another body was received by the House and this

would militate against the constitutional scheme. In this

background when his attention was drawn to the bar of Arti-

cle 121 he replied that it was possible to prevent a prema-

ture discussion in the Parliament, by the Speaker exercising

his authority with discretion. He referred to the Lok Sabha

Rules in this context and furher recommended for the Speaker

to be vested with larger powers. He was emphatic that the

President should not be entrusted with the matter, even at

the initial stage, and that it should be left in the hands

of the Speaker to take appropriate steps. The suggested

substitution of the Speaker (and the Chairman) in place of

the President was in accordance with the view that the

matter is within the exclusive domain of the two Houses of

the Parliament which could exercise its powers through the

respective representatives Speaker and the Chairman. About

Mr. Setalvad's evidence I would like to clarify the position

that I am not treating his opinion as an authority, and I

have taken into account the same as one step in the history

of the present legislation starting from the original Bill

of 1964. The report of the JointCommittee (presented on 17th

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May, 1966) sets out the observations of the Committee with

regard to the principal changes proposed in the Bill. Para-

graph 17 of the Report dealing with clause (2) states that

the expression "Special Tribunal" has been substituted by

"Committee" and "Speaker" and "Chairman" have been brought

in "with a view to ensuring that the Committee may not be

subject to writ jurisdiction of the Supreme Court & the High

Courts". With respect to clause (3), the following observa-

tions of the Committee are relevant:

"The Committee are of the view that to ensure

and maintain the independence of the judici-

ary, the Executive should be excluded from

every stage of the procedure for investigation

of the alleged misbehaviour or incapacity of a

Judge and that the initiation of any proceed-

ing against a Judge should be made in Parlia-

ment by a notice of a motion. The Committee

95

also feel that no motion for presenting an

address to the President praying for the

removal of a Judge should be admitted unless

the notice of such motion is signed in the

case of a motion in the Lok Sabha, by not less

than one hundred members of that House and in

the case of a motion in Rajya Sabha, by not

less than fifty members of that House. Fur-

ther, the Committee are of the opinion that

the Speaker or the Chairman or both, as the

case may be, may after consulting such persons

as they think fit and after considering such

materials, as may be available, either admit

or reject the motion and that if they admit

the motion, then they should keep the motion

pending and constitute a Committee consisting

of three members, one each to be chosen from

amongst the Chief Justice and other Judges of

the Supreme Court, Chief Justice of the High

Courts and distinguished Jurists, respective-

ly".

Paragraph 20 of the Report deals with clause (6) and the

proposed changes, that were more consistent with the motion

being pending in the House or Houses. Ultimately, another

Bill on the lines suggested by the aforesaid Joint-Committee

was drafted and adopted. Mr. Setalvad's opinion is relevant

as an important step in this history of legislation and can

be referred to as such.

27. The wider proposition put forward by Mr. Sibal that

the House was seised of the matter so effectively as to

entitle every member to demand a discussion in the House at

any stage is, however, not fit to be accepted. This will not

only violate Article 121, but also offend the provisions of

the 1968 Act. It is not correct to assume that if the right

of the individual member to insist on immediate discussion

is denied, the consequence will be to deprive the Parliament

of the control of the motion. When the Speaker exercises

authority either under the Lok Sabha Rules or under the.1968

Act, he acts on behalf of the House. As soon as he ceases to

be the Speaker, he is divested of all these powers. When he

acts the House acts. It is another matter that he may con-

sult other persons before admitting the motion, and while so

doing, he may consult the members of the House also, but

without permitting a discussion in the House. The consulta-

tion, which the Act permits, is private in nature, not

amounting to a public discussion while the object of Article

121 is to prevent a public debate. It may also be open to

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the Speaker to consult the House on a legal issue which can

be answered without reference to the conduct of Judge in

question, as for example, the issue (involved in the present

case) whether on account of dissolution of the old House the

Motion has lapsed and the Committee of Inquiry is defunct.

What is prohibited is not every matter

96

relating to the removal of a Judge; the bar is confined to a

discussion with respect to the conduct of a Judge in the

discharge of his duties.

28: Mr. Shanti Bhushan strenuously contended that such

portion of the 1968 Act which direct or declare the initial

motion admitted by the Speaker to remain pending in the

House, should be interpreted as creating a legal fiction

limited for the purpose of ensuring that the bar under

Article 121 is not lifted prematurely. I do not see any

justification for placing this construction on the Act. This

issue could not arise with reference to the original Bill

which was ultimately dropped, as under its scheme the matter

could not have reached the Parliament before the report the

Special Tribunal was laid before the Houses under the Presi-

dent's direction. The petitioners are trying to put an

interpretation on the present Act that may lead to the same

conclusion, that is, that the Parliament does not come in

the picture until the receipt of the report from the Commit-

tee. This is wholly inconsistent with the original Bill not

Finding favour with the Parliament. But apart from this

consideration, let us assume that the petitioners are right,

and the matter does not reach the Parliament at all before

it is ready for consideration on the basis of the Inquiry

Report. It cannot be suggested that even at that stage a

discussion on the conduct of a Judge is banned; and before

this stage is reached there is no occasion for relying upon

Article 121 to prevent a discussion. The situation, there-

fore, does not require the aid of any legal fiction. The

consequence of accepting the argument of Mr. Shanti Bhushan

will be to render the aforesaid provisions of the statute

wholly superfluous. Also, had it been a case of a legal

fiction as suggested, it would attract the observations of

Lord Asquith in East End Dwellings Co. Ltd And Finsbury

Borough Council: 1952 A.C. 109, (followed in'this country in

numerous cases) to the effect that if you are bidden to

treat an imaginary state of affairs as real, you must also

imagine as real the consequences and incidents which, if the

putative state of affairs had in fact existed, must inevita-

bly have flowed from or accompanied it; and if the statute

says that you must imagine a certain state of affairs, it

does not say that having done so, you must cause or permit

your imagination to boggle when it comes to the inevitable

corollaries of that state of affairs. The alternative sug-

gestion of Mr. Shanti Bhushan that the motion, on its admis-

sion, having served its purpose, is completely exhausted,

and a new motion is to be moved again by a member on the

receipt of the Report from the Committee, has also no merit,

for if the motion completely exhausts itself and there. fore

does not remain in existence any further, no problem about

the lifting of the bar under Article 121 arises for being

solved with the help of a legal fiction.

An attempt was made by mr. Shanti Bhushan to derive some

support

97

from that part of clause (4) of Article 124 which requires

the voting in the two Houses to take place in the same

session. The provision appears to me to be absolutely irrel-

evant. The clause does not require that the entire proceed-

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ing with respect to the removal of a Judge commencing with

the notice of motion has to be within the same session. It

refers only to the voting part. A close reading of the

entire Act indicates that the language therein, which com-

pletely demolishes the petitioners' case, was consciously

chosen to make the House seised of the matter, and conse-

quently it became necessary to include the provisions di-

recting the motion to remain pending for the purpose of

preventing a premature discussion. The Act has, thus, very

successfully respected both Articles 124 and 121 in their

true spirit, by neatly harmonising them.

29. Let us consider another argument of the petitioners

that by reason of the expression "on the ground of proved

misbehaviour or incapacity" occurring in clause (4) of

Article 124 it should be held that until an adverse verdict

of misbehaviour or incapacity by some other body is received

by the House, the matter does not come within its purview.

The body in contemplation of clause (4) may be an authority,

completely unassociated with either House of the Parliament

or the Speaker or the Chairman, and the Parliament may not

have any control over the same. Such authority would be

purely statutory, not amenable to the discipline of the

Parliament, but subject to the Court's jurisdiction. Merely

for the reason that a statute under clause (5) prescribes

the procedure in this regard by entrusting the Speaker to

take a decision at the initial stage, he could not cease to

be a statutory authority. In other words, he acts in his

individual capacity under the power vested by the law and

not in a representative capacity. 1 do not find this con-

struction of clauses (4) and (5) acceptable. This would, in

substance, deny the Parliament the power to remove a Judge

exclusively vested in it by Constitution. Let us ignore the

present Act and consider another statute with provisions in

express terms on the lines suggested by the petitioners,

that is, entitling the statutory authority to act independ-

ently of the Parliament, the Speaker and the Chairman. If

that could be permissible it would lead to the Parliament

being reduced to a helpless spectator, dependent on the

statutory authority, to act on or to ignore a complaint.

This would be in complete violation of the intention of the

Constitution to vest the power to remove a Judge exclusively

in the Parliament. It must, therefore, be held that the

Parliament is in control of the matter from the very begin-

ning till the end, and it acted correctly in accepting the

objections of the Joint-Committee to the original Bill,

aforementioned, and in passing the Act of 1968, iii the form

we find it. By the introduction of the Speaker and the

requirement of a large number of members of either House to

initiate the matter, the

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House is brought in control of the proceeding through its

representative the Speaker or the Chairman. It has to be

noted that "the ground of proved misbehaviour or incapacity"

is necessary only for putting the matter to vote in the

House under clause (4), and is not a condition precedent for

initiating a proceeding and taking further steps in this

regard.

30. Mr Sibal projected another extreme point of view by

contending that a finding of the Committee in favour of the

Judge cannot be held to be binding on the Parliament on

account of the limited scope of a statute passed under

clause (5). There is no merit in this argument either.

Clause (4) authorises the Parliament to act on the ground of

proved misbehaviour or incapacity and clause (5) permits it

to pass a law to lay down the manner in which it may become

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possible to do so. It is true that the Parliament can exer-

cise its power without formally framing a law. The House in

question could in the absence of a law, decide on the proce-

dure to be followed in a given case but it was perfectly

open to it to pass an Act laying down a general code to be

followed until the Act is repealed or amended. It is a well

established practice for a large body to entrust investiga-

tions to a smaller body for obvious practical reasons, and

such an exercise cannot be characterised as indulging in

abnegation of authority. It could have asked a Parliamentary

Committee to enquire into the allegations or employed any

other machinery for the purpose. The ratio in State of Uttar

Pradesh v. Batuk Deo Pati Tripathi and Anr., [1978] 2 SCC

102, is attracted here. In that case the Administrative

Committee of the High Court, constituted under the Rules of

the Court resolved that the District Judge should be retired

compulsorily from the service, and the Registrar of the High

Court communicated the decision to the State Government and

thereafter circulated to all the Judges of the High Court

for their information. The State Government passed orders

retiring the District Judge, whereupon he filed a writ

petition in the High Court. The matter was heard by a Full

Bench and the majority of the Judges held that the writ

petitioner could not have been compulsorily retired on the

opinion recorded by the Administrative Committee, as the

Full Court was not consulted. The application was allowed

and a writ was accordingly issued. On appeal by the State

Government this Court reversed the decision holding that

Article 235 of the Constitution authorised the High Court to

frame the rules for prescribing the manner in which the

power vested in the High Court had to be exercised, and

observed that though the control over the subordinate courts

is vested constitutionally in the High Court by the Article,

it did not follow that the High Court has no power to pre-

scribe the manner in which that control may, in practice, be

exercised; and in fact, the very circumstance that the power

of control, which comprehends matters of a wide ranging

authority, vests in the entire body of Judges

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makes it imperative that the rules are flamed so that the

exercise of the control becomes feasible, convenient and

effective. The parliament is a far larger body than the High

Court and the observations apply to it with greater force.

So long as the statute enables the House to maintain its

control either directly or through the Speaker, the entrust-

ment of the investigation does not amount to abdication of

power. It is a case where the Parliament has taken a deci-

sion to respect the verdict of the Committee in favour of

the Judge, consistently with clause (4) and no fault can be

.found.

31. It has been stated on behalf of the respondents that

the question whether the Motion against the respondent no. 3

has lapsed as a result of the dissolution of the old House

is agitating the minds of the members of the Lok Sabha and

the issue is under consideration of the new Speaker. In

support, he produced a copy of the proceeding of the House.

If the present Speaker holds that the Motion has lapsed, and

the Committee does not have any duty to perform, the pro-

ceeding cannot be proceeded with any further. In reply the

learned counsel for the petitioners claimed that after the

matter is entrusted to the Committee, neither he nor the

Parliament at this stage can undo the admission of the

Motion by the earlier Speaker, or withdraw the investiga-

tion. If the petitioners are right, then what happens if a

member of the Committee becomes unavailable by any reason

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whatsoever or another member renders himself unfit to be on

the Committee, say by reason of his apparent and gross bias,

against or in favour of the Judge concerned, coming to light

after the formation of the Committee ? The answer is that

the House which is in control of the proceeding is entitled

to take all necessary and relevant steps in the matter,

except discussing the conduct of the Judge until the stage

is reached and the bar under Article 121 is lifted. If on

the other hand it is held that the Committee is an independ-

ent statutory body not subject to the control of the House

directly or through the Speaker, as the petitioners suggest,

the Act may be rendered unworkable. Besides, this would

impute to the Parliament to have done exactly what the

Constituent Assembly refused to do by accepting Sir Alla-

di's impassioned appeal, referred to above in para-

graph 19, not to lower the dignity of the Chief Justice of

India by providing a machinery consisting of 5 or 4 Judges

to sit in appeal over him. It may be noted here that the

Constitution has considered it fit to entrust the inquiry in

the alleged misbehaviour of a member of a Public Service

Commission, a constitutional functionary but lower in rank

than the Supreme Court, to the Supreme Court without associ-

ating a Chief Justice of the High Court or any other person

lower in rank. If the Committee is held to be functioning

under the supervision and control of the parliament, with a

view to aid it for the purpose of a proceeding pending in

the House, it will be the parliament which will be in con-

trol of the proceeding and not the Committee.

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32. Mr Jethmalani was fervent in his exhortation to

construe the Constitution and the Act in a manner which will

protect the independence of the judiciary from the politi-

cians, and this, according to him, is possible only if this

Court comes to an affirmative conclusion on the question of

justiciability. There cannot be two opinions on the necessi-

ty of an independent and fearless judiciary in a democratic

country like ours, but it does not lead to the further

conclusion that the independence of judiciary will be under

a threat, unless the matter of removal of Judges, even at

the highest level, is not subjected to the ultimate control

of Courts. The available materials unmistakably show that

great care was taken by the framers

the Constitution to this aspect and the matter was

examined from every possible angle, before adopting the

scheme as indicated earlier. So far as the district courts

and subordinate courts are concerned, the control has been

vested in the High Court, but when it came to the High Court

and Supreme Court Judges, it was considered adequate for the

maintenance of their independence to adopt and enact the

Constitution as we find it. I do got see any reason to doubt

the wisdom of the Constituent Assembly in entrusting the

matter exclusively in the hands of the Parliament and I do

not have any ground for suspicion that the Members of Par-

liament or their representatives, the Speaker and the Chair-

man, shall not be acting in the rue spirit of the Constitu-

tional provisions. Similarly, the task of enacting

a law under clause (5) was taken up seriously by consid-

ering every relevant aspect, and the process took several

years before the Act was passed. do not propose to deal with

this point any further beyond saying that the mandate of the

Constitution is binding on all of us, and I would close by

quoting the following words from Hamilton:

"If mankind were to resolve to agree in no

institution of government, until every part of

it had been adjusted to the most exact stand-

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ard of perfection, society would soon become a

general scene of anarchy, and the world a

desert. Where is the standard of perfection to

be found ? Who will undertake to unite the

discordant opinions of a whole community, in

the same judgment of it; and to prevail upon

one conceited projector to renounce his infal-

lible criterion for the fallible criterion of

his more conceited neighbour? To answer the

purpose of the adversaries of the Constitu-

tion, they ought to prove, not merely that

particular provisions in it are not the best

which might have been imagined, but that the

plan upon the whole is bad and pernicious".

33. It has not been suggested on behalf of the petition-

ers or by anybody else that it is open to the Court to

examine the legality of a final decision taken by the Par-

liament under clause (4). Even after a verdict

against the Judge is returned by the Committee, the Parlia-

ment or for that matter any of the two Houses can refuse to

vote in favour of the Motion for removal of a Judge, and the

Court shall not have any jurisdiction to interfere in the

matter. Is it conceivable, in the circumstances, that at the

intermediate stage of investigation the Court has got the

power to intervene ? The answer is in the negative for more

than one reason. If the control of the House continues on

the proceeding throughout, which can he exercised through

the Speaker, it cannot be presumed that the Court has a

parallel jurisdiction, which may result in issuance of

contradictory directions. Besides, the Court cannot he

expected to pass orders in the nature of step in aid, where

the final result is beyond its jurisdiction. Any order

passed or direction issued by this Court may result in

merely an exercise in futility, and may cause a situation,

embarassing both for the highest judicial and legislative

authorities of the country. The Constitution cannot he

attributed with such an intention. I, therefore, hold that

the courts including the Supreme Court do not have any

jurisdiction to pass any order in relation to a proceeding

for removal of a Judge of the superior courts.

34. Reference was made by the learned counsel for the

parties to the Constitutions of several other countries, but

I do not consider it necessary to discuss them excepting the

Australian Constitution as they do not appear to be helpful

at all. As has been mentioned earlier the language of Arti-

cle 124 (4) is similar to section 72(ii) of the Common-

wealth of Australia Constitution Act (1900), except-with

this difference that the Australian Constitution Act.does

not specifically provide for any law to he made for regulat-

ing the procedure and investigation. However, the constitu-

tional and the legal position in Austraila is not helpful to

resolve the present dispute before us, as the Commonwealth

of Australia Constitution Act (1900) has adopted rigid

Separation of Powers between the Executive, Legislature and

Judiciary (as has been observed by this Court on many occa-

sions including at page 415 in Smt. Indira Gandhi v. Raj

Narain, [1976] 2 SCR 347, relented to above in paragraph 9.

Reference has been made by P.H. Lane in his commentary on

the Australian Constitution to the proceedings which were

initiated for removal of Mr. Justice Murphy under section 72

(ii) of the Constitution Act. On account of sharp difference

amongst the members of the Select Committee of the Senate

appointed to inquire into the matter and a further failure

to resolve the situation by establishing a second Committee

and in view of certain other facts an adhoc legislation was

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passed under the name of Parliamentary Commission of Inquiry

Act, 1986. Under this Act further steps were being taken

when Mr. Justice Murphy moved the High Court of Austraila

for an order of injunction challenging the validity of the

Act and alleging that one of the members of the Commission

constituted under the Act (a

102

retired Judge) was disqualified on account of bias. The

application was dismissed on merits without adverting to the

question of justiciability.. This decision, to my mind, is

of no help to the petitioners before us,

mainly on account of the difference in the Constitutional

scheme of the two countries with respect to the Separation

of Powers. The judicial powers there have been exclusively

vested in the courts by section 71 of the Constitution Act

of 1900. Lane has at page 372 of his book opined that sec-

tion 72 (ii) may be non-justiciable, since it seems to place

the exercise under the section in Parliament itself. He,

however, further proceeds to say that the Parliament could

seek the High Court's help, for example, in the peripheral

matter of the meaning of misbehaviour or incapacity in

section 72(ii). He has also referred to certain other provi-

sions of the Constitution Act, and analysed the roles of

Parliament and Court with his comments. I do not consider it

necessary to proceed further beyond saying that Mr. Justice

Murphy's case does not provide any aid in deciding the issue

in the cases before us. Although our Constitution was made

after examining the Constitutions of many other countries,

it has adopted a pattern of its own. The learned counsel

also placed a large number of decisions; both Indian and

foreign and since I have not found them relevant, I have

refrained from discussing them. None of the cases in which

this Court has either interfered with the decision of the

House or has refused to do so, related to a proceeding for

removal of a Judge, and are clearly distinguishable in view

of my opinion expressed above. I am also not dealing with

the other points urged by Mr. Sibal, as I agree with him on

the main issue of justiciability. I am avoiding to express

any opinion on the controversy whether the Motion lapsed or

not on the dissolution of the earlier House, as the issue is

for the Lok Sabha to decide.

35. In view of the above findings this Court cannot

pass any order whether permanent or temporary on the prayer

that the respondent No. 3 should not be allowed to exercise

his judicial powers. In the result all the F writ petitions

are dismissed. The prayer for transfer of Writ Petition No.

1061 of 1991 in Transfer Petition No. 278 of 1991 is allowed

and that Writ Petition is also dismissed. There will be no

order as to costs.

N.P.V. Petitions dis-

posed of.

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