SUB-COMMITIEE ON JUDICIAL ACCOUNTABILITY ETC. ETC. v. --,__ UNION OF INDIA AND ORS., ETC.

SUB-COMMITIEE ON JUDICIAL ACCOUNTABILITY ETC. ETC. A .,, v. --,__ UNION OF INDIA AND ORS., ETC. ' ""' OCTOBER 29, 1991 B

I j Constitution ofIndia. 1950: ~

Articles 124(4) and (5) and 118-Removal of Judge of Supreme Court-Motion for presenting an Address to President and decision of c Speaker of Lok Sabha to. admit the motion and constittl(e a committee under Judges (Inquiry) Act for investigation and proofofgro~nds-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 D 118 operate in different fields-Question whether the motion lapsed or J. not on the dissolution ofLok Sabha-Justiciability of

Artidles 124(4) and (5) and 121-Scope and interpretation of-Removal of Judge of Supreme Court-Whether Justiciable-Enactment of law un- der Article 124(5) for regulating procedure for investigation and proof of E misbehaviour or incapacity ofJudges-Whether mandatory-Word 'may'- When to be construed as 'shall'.

Articles 124(4) and (5) and 32--Removal ofJudge of Supreme Court --Apart from constitutional process, whether Supreme Court has jurisdic- =\ " tion to. enquire into alleged misbehaviour or incapacity and restrain the concerned Judge from exercising judicial functions-Whether it can give legal directive to Chief Justice of India not to allot any judicial work to F the concerned Judge-Judge facing enquiry, continuing to discharge judi- cial jimctions-Propriety of

Article 32 -Public Interest Litigation-Inquiry Committee consti- G '( tuted by the Speaker of Lok Sabha under Judges (Inquiry) Act to investi- gate into the alleged misconduct of Judge of Supreme Court-Writ Peti- ~ tions seeking directions to Union Government to enable the Committee to ' discharge its functions under the Act and to restrain the Judge from performing judicial fanctions during pendency of proceedings before the Committee-Maintainability of-Locus standi of Sub-committee on Judi- H

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A cial Accountability and Supreme Court Bar Association to sue-Whether 'CoArt could refuse to interfere on grounds of infructuousness, propriety O/ld 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.

B Judges (Inquiry) Act, 1968:

Constitutional validity of

Sections 3 and 6---Removal of Judge-Motion for presenting an address to President admitted and Committee constituted by the Speaker C 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 affilia- D tion --Doctrine of statutory exceptions or necessity-Applicability of

Constitutional Law:

Separation of Powers under federal set-up-Court-Interpreter of limits of authority of different organs ofState-Judicial review-Incidental ·E to and flowing from concept of written Constitution, the fundemental imd higher law.

Interpretation of Constitution:

Constructions which strengthen the fundamental feature of the Con- F stitution to be adoi ted-Rule of/aw-Whether a basic feature-Independence ofJudicia~Whether essential 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 perspective--Resort to historical background- G Whether permissible.

Administrative Law-Natural Justice-Motion for removal ofa 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 H hearing.

SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v U.O.I. 3

Practice and Procedure: A ,_ Removal of a Judge-Cor!ftitutional.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. B Words & Phrases: Word 'may'-When could be read as 'shall'. -If

.I ... Upon a notice given by 108 members of the 9th Lok Sabha of a Motion for presenting an Addl,"'ess to the President for the removal of a sitting Judge of the Supreme Co,urt for the alleged misconduct committed by him while he was functioning as Chief Justice of a c High Court, the Speaker of the Lok Sabha admitted the Motion and constituted a Committee consisting 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. D On its un4erstanding that the Motion as well as the decision of the Speak~r the,reon had lapsed consequent on the dissolution of the Lok Sabha, the Union government did not 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 ll(B)(i) of Part D of the II Schedule to the Consti- E tu ti on.

Thereupon, a b">dy called the Sub-Committee on Judicial Ac- countability, claiming to be'a Sub-Committee constituted by an All J. India Convention on Judicial Accountability to carry forward the task of implementing the resolutions of the conventions, and the F Supreme Court Bar Association, seeking to prosecute the matter in the larger public interest and, in particular, in the interests of liti- gant 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, G second, that during the pendency of the proceedings before the Committee the concerned 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 H

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A usually prorogued before it was dissolved, but impeachment mo- tions were sui~generis in their nature and, therefore, they dicJ not lapse; that the question whether a motion lapsed or not was a !mat- ter pertaining to the conduct of the business of the House of which the House was the sote and exclusive master; no aspect of the mat- ter was justiciable before a Court and Houses of Parliament were B privileged to be the exclusive arbiters of the legality of their pro- ceedings, 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 · • noit .. or penal proceedings and the Speaker would not decide anything' 1: ~1r.i' · t against the Judge at that stage and would merely decid~.w~e'~ber ' c the matter would bear investigation; that the constitutionarinacbin- ery for removal of a Judge was' merely a political remedy for judi- cial 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 inher- t D ing in it, the right to an impartial judiciary with persons of impec-· cable integrity and character, without which the fundamental right to move the court itself becomes barren and hollow, that the court itself had the jurisdiction - 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 E 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 Sub- committee on Judicial Accountability and the Supreme Court Bar Association. It was contended that till the Inquiry Committee actu- F ally four.d the concerned Judge guilty of charges, there should be no interdiction of bis 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 G from judicial functions.

Another Writ Petition was also filed by a practising Advocate challenging the constitutional validity of the Judges (Inquiry) Act, 1968 as ultra .vires Articles 100, 105, 118, 121 and 124(5) of the Con- stitution of in'dia and seeking a declaration that ~he· Motion pre- H sented by 108 Members of Parliament for the r~moval of the Judges

S,UB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. U.O.I. 5 had lapsed with the dissolution of the Lok Sabha. The petitioner A 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 consti- >r tution of the Committee by Speaker.

A Transfer Petition was filed seeking the withdrawal by the B Supreme Court to itself from the Delhi High Court the Writ Peti- tion 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. c It 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 malafldes and since the Speaker had not entered appearance and denied ~he allegations, 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 juris- -'\ · diction, and that any decision rendered or any writ issued might, ultimately become futile and infructuous as the constitution of and investigation by the committee 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 delibera- tions of the House ·on the motion for .the presentation of an address to the President for the removal (jf a Judge, which was indisputably G { within the exclusive province pf the Houses of Parliament over which courts exercised no control or jurisdiction.

On :behalf of the Union of India it was contended that a com- bined re~d-fng of Articles 107, 1118 and 109 would lead irresistibly to the conclusi.on that upon dissolution of the House, all bills would H

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G 1.2 In interpreting the constitutional provisions concerning the judiciary artd its independence the Court should adopt a construc- tion which strengthens the foundational features and the basic structure of the Constitution. Rule of law is a basic feature of the Constitu- tional fabric and is an integral part of the constitutional structure. ~· - Independence of the judiciary is an essential attribute of Rule of Jaw. [3t DJ \ H 1.3 In construing the Constitutional provisions, the law and

SUB-COMMITTEE ON JUDICIALACCOUNTABILITY v. U.O.I. 7 procedbre for removal of Judges in other countries afford a back- A ground 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 inter- pretation of the Constitutional Scheme. [31 G-H]

Bdrringtons Case [1830]; Terrell v. Secretary of State for the B Colonies and Another,- [1953] 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; Shetreet 'Judges C · on Trial' (1976); pp. 404-405; Rodney Brazier 'Constitutional Texts' (1990) pp. 606-607; Gall 'The Canadian 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, D 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-Ox- ford 1989 at page 73),; (Erskine May's "The Law, Privileges, f'r(!ceed- ing and Usage ofParliament" (Twenty-first Edition London Butte..Worths 1989); MN~ Kaul and S.L. Shakdher in Practite and Procedure of E Parliament", referred 'to.

2.1 It is not correct to say that the question whether a motion bas 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 j~sticiable before a F Court. [29 C ,53 G]

2.2 The question whether the motion has lapsed is a matter to be pronounced upon on the basis of the Constitution and the rel- evant rules. [53 E] G 2.3 On such interpretation of the Constitutional provisions as well as the Judges (Inquiry) Act, 1968, the Courts retain jurisdic- tion to declare that a motion for removal of Judge does not lapse on dissolution of the House. [53F-GJ

Bradlaugh v. Gossett, (1884) 12 Q.B.O. 271, distinguished. H

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A A.K. Gopalan v. The State of Madras, [1950] SCR 88 Special Reference Case, (1965) 1 SCR 413, referred to.

Barton v. Taylor, [1886) 11AC197, Rediffuson (Hong Kong) Ltd. v. Attorney General of Hong Kong, [1970] AC 1136, referred to.

B 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 findi~gs by the Committee are not, strictly, pro- ceedings 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] c 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 inca-

D pacity 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 Parliament and that process commences only on proof of misbehaviour 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 QI

E 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 whi~h relate to procedure and conduct of bu~iness in Parliament. (61 B-C] ·

3.4 The validity of law enacted by the Parliament under clause F (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 Arti- cle 124(4) commences on!y after a finding is recorded that the al- leged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under clause (5). For this rea- G son, 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 docs not arise. (59 G-H, 60 A] ·

4.1 Article 121 suggests that the bar on discussion in Parlia- H ment with respect to the cor1duct of any Judge .is lifted 'upon a

SUB-COMMITTEE ON WDICIAL ACCOUNTABILITY v. U.0.1. 9 moti&n 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 incapacity pre- ' ceding the stage of motion for removal on the ground of 'proved' misbehaviour or incapacity under clause (4). [56 H, 57 A-B] 4.2 An allegation of misbehaviour or incapacity of a Judge has ---,, to be ma.de, investigated and found proved in accordance with the law enacted by the Parliament under Article 124 (5) without the c 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 D of misbehaviour or incapacity and it being for presenting an ad- -l dress to the President praying for removal of the Judge, the bar on discussion contained in Article· 121 is lifted and ~iscussion can take ~ place in the Parliament with respect to the conduct of the Judge; and the further consequences would ensue depending on the out- come of the motion in a House of Parliament. If, however, the find- E ing reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occa- sion to move the motion in accordance with Article 124(4). [57 G-H, ~8-A-B]

_,,.. 4.3 Thus prior proof of misconduct in accordance with the law F 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 which, the constitu- · tional scheme and process for removal of a Judge remains inchoate. [66 F] G _.' ./ 4.4 The bar in Article 121 applies to discussion in Parliament but investigation and proof of misconduct or incapacity cannot ex- elude such discussion. This indicates that the machinery for invest,i- gation and proof must necessarily be outside Parliament and n'ot within it. In other words, proof which involves· a discussion of the H tondutt of the Judge must be by a body which is outside the limita-

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A tion of Article 121. The policy appears to be that the entire stage upto proof of misbehaviour or incapacity, beginning with the initia- tion 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 ~utside the Par- liament and not within it. Parliament neither bas 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 misbehaviour or incapacity bas 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. [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 exclusivity of its jurisdic- tion, but ·the Constitutional Scheme itself which by enacting clauses D (4) and (5) simultaneously indicated that the stage of clause (4) is reached and the process thereunder commences only when the al- leged misbehaviour or incapacity is proved in accordance with the law enacted under clause (5). ,Jt is only then that the need for dis- cussing a Judge's conduct in the Parliament arises and, therefore, the bar under Article 121 is lifted. [60 D-E) E 5.1 If the motion for presenting an address for removal is en- visaged by Articles 121 and 124(4) 'on ground of proved misbehav- iour or incapacity', it presupposes that misbehaviour or incapacity bas been proved earlier. This is more so on account of the expres- sion 'investigation and proof' used in clause (5) with specific refer- F ence to clause (4), indicating that 'investigation ·and pr~of' of misbe- haviour or incapacity is not within clause (4) but within clause (5). Use of the expression 'same session' in clause (4) without any refer- ence 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 enaeted law and not the parliamen- G tary practice wbica may be altered by each Lok Sabha. [61 F-HJ ·' '

5.2 The significance of the word 'proved' before the expres- sion 'misbehaviour or incapacity' in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 provid- ing for removal of a member of the Public Sl?rvice Commission. The H expression in clause (1) of Article 317 used for describing the ground of remoyal is 'the ground of misbeaviour' while in clause (4) of A Article t'l4, it is, 'the ground of proved misbehaviour or incapacity'. [62A] 5.J 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 re- B solved 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 effectu- ate a right - here it is to effectuate a constitutional protection to the Judges under Article 124(4) - even a provision as in Article 124(5) which may otherwise seem merely enabling becomes manda- C tory. The exercise of the power is rendered obligatory. The use of t,he 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 ~isbehaviour or incapacity or not. [62 D, 62 G, 63 E-F] D State of Uttar Pradesh v. Joginder Singh, [1964] 2 SCR 197 at 202; Punjab Sikh Regular Motor Service, Moudhapara v. The Re- gional Transport Authority, Raipur & Anr., [1966) 2 SCR 221, referred to.

p. 11 Copy page pinpoint

Erederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford; the Rev. Thomas Tel/usson Carter, [1879-80] 5 A.C. 214 at E 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' notwithstanding use of that expression in F 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 cho- sen because the further process is parliamei;itary and the authority G to make such a complaint is given to Members of Parliament. Moreover, the enactment under Article 124(5) cannot be a safe guide to deter- ·mine the scope of Article 124(5). [64 A-CJ

6.1 Article 124(5) does not operate in the same field as Article 118 relating to procedure and conduct of business in Parliament. H [61Cl

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A 6.2 Article 118 !s 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)

B 6.3 Article 124(5) is in the nature of a special provision in- tended 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) c 6.4 Article 124(5) has no comparison wi"th 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 proce- dure made under Article 118. Since Articles 118 and 124(5) operate D in different fields, a provision like that contained in Article 119 war, not necessary and even in the absence of such a provision, a law made under Article 124(5) will override the rules made under Artl- cle 118 and sh1dl be binding on both the Houses of Parliament. A violatioµ of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1). (65 B-CJ E 7.1 ·Neither the doctrine that dissolution of a House passes a sponge over parliamentary slate nor the specific provisions con- tained in any rule or rules framed under Article 118 of the Consti- tution determine the effect of dissolution on the motion for removal of a Judge under Article 124, because Article 124(5) and the law made thereunder exclude the operation of Article 118 in this area. [49 FJ

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. [SO HJ

7.3 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 and no ques- tion of repugnance could arise to the extent the field is covered by the I.aw under Article 124(5). [51 CJ

p. 13 Copy page pinpoint

"'1 State of Punjab v. Sat Pal Dang & Ors, [1969] 1SCR478, relied on.

8.1 "fhe Judges (Inquiry) Act, 1968 reflects the constitutional 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 c1 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. The provisions of the Judges (Inquiry) Act do not foul with the constitutional scheme. [65 B-C, 64 CJ D .J 8.2 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 coli- E stitutional and is intra vires. [66 G-H]

9.1 The Judges (Inquiry) Act, 1968 is law enacted under Arti- cle 124(5) which provides against d~ctrine of lapse . .l

9.2 The effect of sections 3(1) and (2) and 6(2) of the Judges F (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] G ~·'-' 9.3 Section 3 of the Act applies to both the Houses of Parlia- ment. 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 H

14 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R. , A 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 Parliament. [51 DJ

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, B as a matter of right, entitled to a notice. The scheme-of the statute .and the 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 indi.cate that hearing the Judge himself ipight not be inappropriate, might do so. But a decision to admit the' motion and constitute a Committee for investigation with- e out affording such an opportunity does not, by itself and for that reason alone, vitiate the decision. (68 E-GJ

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 confidence in the effi- D ciency, 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 niembers and restrain the Judge from exercising judicial functions is besf"t with grave risks. The court would then indeed be acting as a E tribunal for the removal of a Judge and is productive of more prob- lems than it can hope to solve. [69 C, 70 HJ

Sampath Kumar & Ors. v. Union of India & Ors, [1985J 4 S.C.C. 458, r~ferred to. F Corpus Juris Secundum, (Vol.48A), referred to.

11.t The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted. The entire Consti- tutional Scheme, including the provisions relating to the procJss 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 misco1i1- duct or incapacity is 'proved' in accordance with the law en~ted for this purpose, it is difficult to accept that any such discussion on the conduct of the Judge or any evaluation or inference as to its

SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. U.0.1. 15

- merit is permissible according to law elsewhere except during inves- A tigati~n before the Inquiry ComJDittee constituted under the statute· fof 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) B

11.3 The question of propriety is, however, different from that of legality. Whether the Judge should continue to function dur- ing the intervening period is to be covered by the sense of propriety of the concerned Judge himself and the judicial tradition symbol- ised 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 as- sume 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 ex- pected to find a desirable solution in such a situation to avoid em- barrassment to the concerned Judge and to the Institution in a man- ner 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 desirable for the Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the Judge accordingly, and the concerv.ed Judge would ordi- narily 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 au- thority to permit any court to issue any legal directive to the Chief F 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. i\,.case of malafides.cannot be made out merely on the groupd of political affiliation of the Speaker either. That may G not be a sufficient ground in the present context. At all events, as

-, the only statutory authority to deal with the matter, doctrine of 1 statutory exceptions or necessity miglit be invoked. [74 B-C)

13. T..e law as ·to standing to sue in public interest actions has H ·~

16 SUPREME COURT REPORTS [1991] SUPP.2 S.C.R.

A 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 a~d im- 1portance that it cannot be said that members of the Bar, and par- 'ticularly, the Supreme Court Bar Association have no locus standi in the matter. An elaborate re-survey of the principles and precedeQts B · over again is unnecessary. Suffice it to say that from any point o'f view, the petitioners satisfy the legal requirements of the standing to sue. [74 E-FJ '1 ' S.P. Gupta & Ors. etc. etc. v. Union of India & Ors. etc. etc., [1982] 2 SCR 365, relied on. c

14. Certain submissions advanced on the prayer seeking to re- strain the judge from functioning till the proceedings of the com- mittee were concluded lacked as much -in propriety as in dignity and courtesy with which the Judge is entitled. While the members of the bar may claim to act in public interest, they have, at the same D 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 approach should not incur the criticism that it was calculated to expose an able and courteous Judge to public indignity even be- fore the allegations were examined by the forum constitutionally I'- E 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 F 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-CJ 15.1 The interpretation of the law declared. by this Court that a motion under section 3(2) of the Judges (Inquiry) Act, 1968, G does not lapse upon the dissolution of the House is a binding decla- ration. If the law is that the motion does not lapse, there can be no o~casion 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 Jaw, since the interpretation of the law is within the exclusive power of the courts. [76 EJ · H

SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. U.O.I. 17

_J5.2 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. 'Phe 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 Constitu- tional Scheme itself under Article 124(4), irrespective of the fact whether Article 124(5) is a mere enabling provision or a constitu- tional limitation on the exercise of power under Article 124 (4). [60 B-C] 15.3 The Union Government bas sought to interpret the le- gal position for purpose of guiding its own response to the situation and to regulate its actions on the Speaker's decision. That under- standing of the law is unsound. [76 G] 15.4 No specific writ of direction need issue to any author- ity. Having regard to the nature of the subject matter and the pur- pose it is ultimately intended to serve, all that is necessary is to declare the legal and correct constitutional position and leave the different organs of the State to consider matters falling within the orbit of their respective jurisdiction and powers. [76 H, 77 A] 15.5 In the circumstances, the question of Court declining to exercise its jurisdiction on the ground that the Judgment rendered and Writ issued by it would become infructuous does not arise. E (31 A-.C, 77 A] Per Sharma, v'. (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 F 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 con;;ciously 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 Parlia- G ment 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. 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 re- moved from his office except on a special majority of the Members H of each House of Parliament. Both the Executive and the Judiciary

18 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A ~re;_,thus excluded in this process. The scheme cannot be construed as laf of trust ;n the three organs of the State. There are oth.., relOv nt eons;derat;ons to he taken ;nto account while fram;ng and r adop ing a written Constitution, which include the assurance to the ~ peop that the possibility of a subjective approach clouding the decis on on an issue as sensitive as the one under consideration, has B beenI 1 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] I

'f All Party Hill Leaders Conference v. MA. Sangma, [1978) 1 SCR c 393 at 411, referred to.

The Federalist : Hamilton, referred to.

1.2 There cannot be two opinions on the necessity of an inde- pendent 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 Con- stitution to this aspect and the matter was e~amined from every possible angle,'before adopting the scheme as laid down. So far as the district courts and subordinate courts are concerned, the con- .trol bas 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 it is found now. There is no reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclu- F sively in the hands of the Parliament and there is no ground for suspicion that tbe 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] G 2.1 The exercise of power under clause (4) was not made con- ;. )11111 ditional on the enactment of a law under clause (S), and the reason for inserting clause (S) 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 faw to be passed by the Parliament under clause (S). Clause H (4) would continue to serve the purpose as it does now, without any

SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. ·u.O.I. 19 amendment if clause (5) were to be removed from the Constitution A tod.y. 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 U. Clause (5) merely enables the parliament to enact a law for this purpose, if it so chooses. [88 E, 88 A, 89 A) B 2.2 The word 'may' has been sometimes understood in th~ im- perative sense as 'shall', but ordinarily it indicates a choice of ac- tion and -not a command. In the present context, there is no reason to assume that it has been used in its extraordinary meaning. [88 F)

3. The object of Article 121 is to prevent any discussion in Parliament with respect to the conduct of a Judge of the Superior c 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 BJ

4.1 The expression "motion" bas not been defined in the Judges (Inquiry) Act, 1968. The Lok Sabha Rules framed under Article 118 D .J 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 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 "mo- tion" in the Act for ta1e first time without a definition or introduc- tion clearly indicates that it is referring to that "motion" whjch is ordinarily understood in the context of the two Houses of Parlia- ment attracting their respective rules. Section 3 does not specify as to how a-nd to whom the notice of "motion" is to be addressed or banded over and it is not quite clear as to bow the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account. Therefore, the provisions of the Act have to be read alongwitb some of the Lok Sabha Rules. Rules 185, 186 and 187 which are relevant for the purpose should be treated to be supplementary to G I ' the Act. [90 D-G, 91 BJ

4.2 Sub-section (2) of Section 3, which is of vital importance in I the present context, says that if the "motion" referred to in sub- section (1) is admitted, the Speaker "shall keep the motion pending" H

.\ 20 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A And constitute a Committee for investigation into ,the allegations. J [91 CJ [ .,.. 4.3 The situs where the "motion" is pending is almost conclu- sive 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 pend- B ing 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 "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 "I ;.

"admitted in both Houses", and where such "motion" bas been ad- c mitted "in both Houses", the Committee shall be constituted 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 ' D from the Co1Qmittee. The language throughout the Ac~ has been. consistently used on this premise and is not capable· o' being ig-; <,.

nored 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 inves'ti- gation in pursuance of a "motion" admitted by the Sp~a"'er. At the E c~nclusion of the investigation the Committee bas to send; the report to the Speaker (or the Chairman as the case may be) along with a copy of the original Motion. If the finding goes against the Judge, the Motion, the same original Motion, together with the report would be taken up for consideration by the House where the. Motion is pending, and the address and the Motion would be put to vote to- F getber 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)

G 4.S 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, a~d if that Motion disappears nothing remains behind to attract the tact. This1 idea runs through the entire Act and the Rules, and can ot be al- 1 lowed to be replaced by a substitute. The existence of ~· Motion H pending in the House is a necessary condition for the appl~cation of

SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. U.O.I. 21

"' --the ACt. ,Bereft of the same, the Act does not survive. It is, there- A fore, not permissible to read the Act so as to mean that the Ho.use 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 other- wise the Act will have to be struck down as ultra vires, or in any event, inoperative and infructuous and, on .this ground alone, the B 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 enforce it. He has to ensure that Article l21 is obeyed in terms and spirit. The pendency of the motion in the House cannot be a ground to violate Article 121, and c the apprehension that if the motion is held to be pending in the House, on its admission, the object of Article 121 would be defeated 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 discus- .; sion 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 as- some that if the rigt.t of the individual member to insist on immedi- ate discussion is denied, the consequence will be to deprive the Par- liament 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 question, 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 G i 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 Arti- cle 121 was not lifted prematurely. [96 BJ H

22 SUPREME COURT REPORTS [1991] SUPP.2 S.C.R.

A East End Dwellings Co. Ltd. And Finsbury Borough Council: 1952 A.C. 109, referred to.

J.4 A. close reading of the entire Act indicates that the lan- guage therein was consciously chosen to make the House seized of· the matter, and consequently it became necessary to include the B provision dir.ecting the motion to remain pending for the purpose of preventing a premature discussion. The Act has, thus, very seccess- fully respected both Articles 124 and 121 in their true spirit, by neatly harmonising them. [97 BJ

5.5 Parliament is in control of the matter from the very begin- C ning till the end. By the introduction of the Speaker and the re- quirement of a large number I of members of either House to initiate the matter, the House is brought in control 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 characterised as indulging in abnegation of authority. It could have asked a Parliamentary Committee to enquire into the allegations or employed any othe• machinery for the purpose. [98 DJ

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 abdication of power. It is a case where the Parliament has taken a decision to respect the ver- dict of the Committee in favour of the Judge, consistently with clause (4) and no fault can be found. [99 BJ

State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Anr., (1978J G 2 sec 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 dis- cussing 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 ,

SUB-COMMITTEE ON WDICIAL ACCOUNTABILITY v. U.0.1. 23 directly or through the Speaker, then the Act may be render,ed unwo~e. Besides, this would lower the dignity of the Chief Jus- tice of I dia by providing a machinery consisting of S or 4 Judges to sit in ppeal 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, HJ

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 c the matter, it is not conceivable, that at the intermediate stage of investigation the Court has got the power to intervene. This is be- cause, if the control of the House continues OD the proceeding throughout, which can be exercised through the Speaker, it cannot be presumed that the Court has a parallel jurisdiction, which may result in issu- ance of contradictory directions. Besides, the Court cannot be ex- D pected to pass orders in the nature of step in aid, where the final result is beyond it:; jurisdiction. Any order passed or direction is- sued 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-CJ E

6.2 In the circumstances the courts, including this Court, do not have any jurisdiction to pass any order in relation to a proceed- ing for removal of a Judge of the superior courts; [101 CJ ....

7. No opinion is expressed on the controversy whether the F 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] G " 9.1 Although the powers of State have been distributed by the Constitution amongst the three limbs, i.e. the Legislature, 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] · H

24 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R. 1 .'I

A Smt. Indira Gandhi v. Raj Narain, [1976) 2 SCR 347 at p. 415, 'l'eferred 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 im- B plication arising from established jurisprudential principles involved in the Constitutional scheme. [81 CJ

10. It is permissible to take into consideration the entire his- , torical background of the provisions of the Constitution and the Act as aid to interpretation. [84 CJ c Bengal Immunity Company v. Tile State of Bihar, [1955] 2 SCR 603 at 632 & 633; B. Prabhakar Rao v. State of Andhra Pradesh, · [1985] Suppl 2 SCR 573, r:eferred to. Heydon 's case : 76 E.R. 637; Eastman Photographic Material Company v. Comptroller General of Patents, LR. [1898] A.C. 571, D referred to.

ORJGINAL WRJSDICTION: Writ Petition (Civil) No. 491 of 1991. (Under Article 32 of the Constitution oflndia) WITH TMNSFER PETITION (CIVIL) No. 278of1991. E (Under Article 139-A(i) of the Constitution of India) WITH WRJT PETITION (CIVIL) Nos. 541, 542 & 560/91 G. Ramaswamy, Attorney General, Altaf Ahmad, Addi. Solicitor General, Shanti Bhushan, Ram Jethmalani, P.P. Rao, Kapil Sibal, F P.R.Krishnan, Ms. Indira Jaisingh, Ashok Desai, Hardev Singh, P.S . Poti, Danial Latifi, Rajinder Sachhar, M.K. Ramamurtl).y, 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, G 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.