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

24. But the Constitutional scheme in India seeks to achieve a judi- cious blend of the political and judicial processes for the removal of Judges. Though it appears at the first sight that the_p!o_ceedings, of the Constituent Assembly relating to the adoption of, cl~~-~· (4) and (5) of Arti.cle 124 seem to point to the contrary and evince an intention to c exclude determination ·by a judicial process of the correctness of the alle- gations of misbehaviour or incapacity 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 judi- cfal element, reliance has been placed on the proceedings of the Constitu- ent 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 appoint- ment 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 provision may be made by Federal la}V for the procedure to be adopted in this behalf'. Shri K.Santhanam had moved an amendment in the said Clause relaiing to removal of judges and he wanted the last sentence about further provision being made by F Federal law for the proceducre to be adopted in that behalf, to be omitted. Shri M.Ananthasayanam Ayyangar 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 infirmity of mind or body by an address presented in this behalf by both the Houses of the legisla- G ture to the Pr;:sident 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 alte~­ tive clause suggested by Shri M.Ananthasayanam 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 H reference being made to it (Supreme Court) by the President, a "'leCial

SU~-rMMITIEE ON JUDL. ACCOUNTABILITY v. U.O.l. [B.C. RAY, J.J 45.

tribun~1 appointed by him for the purpose from amongst judges or ex- A judges 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. Ananthasayanam Ayyangar. Shri Santhanam did not press his amendment and it was withdrawn. There is no doubt that in the amendments which · B were suggested by Shri M.Ananthasayanam Ayyangar, 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 C. favour of determination about the correctness of such allegations by judi- cial 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 Federal law. We need not be more meticulous or more elaborate, than the people who have tried a similar case in other jurisdictions. I challenge my friend to say whether there is any detailed provi- sion 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" .....Tbere is sufficient safeguard in the reference "proved ·misbehaviour'' and we might make elaborate and adequate pro- vision for the way in which the 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 itis necessary to provide detailed machinery as to the impeachmeni, the charges to be framed against a particular judge. To make a detailed machinery for all these could be a novel procedure to be ~~pted. in any Constitution". G (Q>,,stituent Assembly Debates, vols. I to VI at pp. 899-900)

25. Reference was also made to the debates of the C~tituent As- sembly dated May 24, 1949 on Article 103 of the Draft Constitulion. Shri Tajamul Husain 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 povide that "a judge. of the Sup~me H . . ~ : .

46 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A Court shall not be removed from his office except by an o~der of the President passed, after a Committee consisting of dl 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 tJie Constituent Assembly. (Constituent Assembly Debates, vol. VTII at pp. 243 and 262). The said amendment was similar to tho~ moved by Shri M. Ananthasayanan:~ B Ayyangar at the stage of adoption of Clause 18 of the report of the Uni Constitution Committee noticed earlier. The reasons which were given y Shri Alladi Krishnaswami Ayyar for opposing the said amendments would apply to this amendment also.

26. ;The proceedings in the Constituent Assembly, therefore, do not C give an indication that in adoptiLg 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 amendments proposed by Shri D M.Ananthasayanam Ayyangar, it is possible to infer that the intention of the Constituent Assembly was that the provision with regard to the ma- chinery 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.

E 27. This is some of the historical material and background 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 contention of the learned Attorney General and Shri Kapil Sibal, learned Senior Counsel, are similar. On the second aspect, the learned AttQmey 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 relianc.e was placed on the classic treatise . of Erskine May's "The Law, Privileges, Proceedings and Usage

SUB-COMMIITEE ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.] 47

of Parliament" [Twenty-first Edition, London Butterworths 1989]. A mo- A tion is described as a "proposal made for the purpose of illustrating the decision of the House". According 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 B 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, incl.uding persons holding the position of a judge, C 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 di8solution of the House : D "Dissolution, as already stated, marks the end of the life of a HQuse and is followed by the constitution of a new House. Once the House has been dissolved, the dissolution is irrevoca- ble. There is no power vested in the President to cancel his order of dissolution and revive the previous House. The conse- E quences of a dissolution are absolute and irrevocable. In Lok Sabha, which alone is subject to dissolution under the Consti7 . tution, dissolution "passes a sponge ov~r 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, reso- G lutions, amendments supplementary 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. H · 107, 108 and 109 leads irresistibly to.the conclusion that upon dissolution

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

A of the House, all bills will lapse subject only to the exception stipulated in Article I 08. 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 constituted House is a separate entity having a B life of its own unless the business of the prnvious Hous·e is carried over by the force of statute or rules of procedure. Both the learned Attorney Gen- eral and Shri Kapil Sibal took us through the Rules of Procedure and Conduct of Business in Lok Sabha made under Article 118 of the Consti- - tution to show that invariably all pending business come to an end with the expiry of the term of the House or upon its earlier dissolution. c 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 pro- rogued before it is dissolved. Learned counsel said that impeachment motions are sui generous in their nature and that they do not lapse. It is. D however, necessary to distinguish the Indian Parliamentary experience 0

under a written Constitution from the British conventions. Indeed, refe r- ring to the doctrine of lapse this Court in Purushothaman Nambudiri v. The State pfKera/a [1962] Suppl.I SCR 753 Gajendragadkar J said:

" ..... .In support of this argument it is urged that wherever the English parliamentary form of Govrnment prevails the words E "prorogation" and "dissolution" have acquired the status of terms of art and their significance and consequence are well settled. The argument is that if there is no provision to the, contrary in our Constitution the English convention with re- gard to the consequence of dissolution should be held to fol- low even in India. There is no doubt that, in English, in addi- F tion 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 preceded by prorogation, and what is true about the result of prorogation is, it is said, a fortion· true about the result of dissolution. Dissolution of Parliament is sometimes described as "a civil death of Parliament". Ilbert, in his. work on 'Parliament' has observed that "prorogation means the end of a session (not of a Parliament)"; and adds that "like dissolu- H tion, it kills all bills which have not yet passed". He also describes dissolution as an "end of a Parliament (not merely of

SUB-COMMITIEE ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.) 49

a session) by royal proclamation", and observes that "it wipes A 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 busi- ness of the House at the time of dissolution, the learned Judge said: B " ....... Therefore, it seems to us that the effect of cl. (5) is to provide for all cases where the principle of lapse on dissolu- tion 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] c " ........ 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 Legislative Assembly. It is true that the question raised before us by the present petition under Art. 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 Legisla- tive Assembly. In that sense we read cl. (5) as dealing exhaus- tively 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 legis- lative 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 F House "passes a sponge over parliamentary slate" nor the specific provi- sions 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. the reason is that Article 124(5) and the law made thereunder exclude the operation of Article 118 in this area. G 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 ofa Judge signed,- (a) in the case of a notice given in the House of the People, j by not less than one hun.dred members of that House; H

50 SUPREME COURT REPORTS (1991) SUPP. 2 s:c.R.

A (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. B (2) If the motion referred to in sub-section (I) 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 c of three members of whom - (a) One shall be chosen from among the Chief Justices and other Judges of the Supreme Court; (b) one shall be chosen from among the Chief Justices of the High Courts; and D (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. E Section 6(2) provides : "(2) If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any inca- pacity, then, the motion referred to in sub-section (1) of sec- tion 3 shall, together with the report of the Committee, be takt.a up for consideration by the House or the Houses of Parliament in which it is pending." The effect of these provision$ is that the motion shall be kept.pend- ing till the committee submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration. Otily 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. s13tute does

SUB-COMMIITEE ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.] 51

provide against the doctrine of lapse. Further, Art.118 expressly stat~~ that A

- each Hoose of Parliament may make rules "for regulating, subject to the provisions of this Constitution".

In State of Punjab v. Sat Pal Dang & Ors. [1969] I SCR 478 this Court held that the law for purposes of Article 209 (arialogues to Article 119) could even take the fonn of an Ordinance promulgated by the Gover- B nor 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 case of Parliament), the law made under Article 209 shall prevail. In ·- ~..i, 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 c 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 presenta- tion 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 D -1 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. E

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 mas- ter. No aspect of the matter, it is contended, is justificiable before a Court. Houses of Parliament, it is claimed, are privileged to be the exclusive F arbiters of the legality of their proceedings. Strong reliance has been placed on the decision in oft-quoted decision in Bradlaugh v. Gossett, [1884] 12 Q.B.D. 271. There the exclusiveness of parliamentary jurisdic- tion 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. G ......, ' 1' But where, as in this country and unlike in England, there is a written constitution which constitutes 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, indeed, an incident of and flows H

·52 : SUPREME COURT REPORTS - [1991]SUPP. 2 S.C.R.

A ·from' this concept of the'fundaril:en:taland the~higher law being:the touc~­ stone of the limitsiof the Jx)wers of the various organs of the S~~ which derive power and, authority under Constitiition and.ithat the ju~!al wing is the interpreter of the Constitution and, therefore, of the limits of author- rity Of the' dlfferent vorgan$ ·of~tbe 'State~ltiis to be1noted thah'the British I'atliament: With'ithe l Crown'. iS~~supreme :and ~its powers are unliinited, a:nd iJ3 coUitS"have~iio pOw~t'of judicial1foview:ofilegislation... 11: "J :1 1:0· l" I l ':l;ru;nguq~1 t:i ~n~··H 1~v~neri"' tsd! bnn (I£ :; ;1- 1-"J E!l' i; 'lo 10" ni 8 I lTJii~'16ctnne is~in10ne·sense':the'doctriile of ultra vires inlthe.consti- h\tional'law. Iii a·federaI~sernp:theojudiciary becomes•the guardian:o(the 'Constitution! Itideed;1 mA~K.Gopalan w.•The~tate of.Madras, {1950]iSCR >--- '88'Artiele 13 itself-was- hetd·to be lex '.abundante_ cautela andithat even.in ·c iis absence 'if any of the furtdamental'.rights were infringed by any ·legisla- tive-1e"nactinent; 1 the co\irt'•liad always ;powerttor'.dectare the: enactment invalid. The interpretation of the Constitution as a legal instrument and its obligation ·is th~lfunctfon of thei C0Urts·.,,~•1tris einphatically1the province arid'.duty of the judicial department to say.what.the law is". /n1Re: Spedal Reference Case; [196.⁵] l SCR413Gajendragadkar;CJ said:···" C'· HP•: D "~ i ~'·. I • ·1 ·1~. • ..... ~f) ;:,::;,._~. ".11 . ~;; '~ ·, q .... t

" " .......though our Legislatures have plenary powers, they func- i- tion' within the limits prescribed; by the material and relevant provisions of the Constitution. , · 1 1• • , ' 1_ • .< l r r " .r· J1f q ·~~ . - I .,f •,, '· In a democratic country governed by a written Constitution, it E is the C:onstifution whkh is s'hpreme ~d so~ereign ....." · ,, . But it is the duty of this Court to interpret· the Constitution for the mea:lling of which this Court is•final arbiter: · ''., :. · -.':J · r.; (I ,~ !'.)'"·='·. ··! .. ,~~ _:. fpfl ~; " · ~,

-~ 1:r 33! Shri•Kapil Sibal'referred'us·to the 'following·observations of Stephen J!'mfiradlaugh v:Gossett,; supra:•; · · ... : ' · · • "' · "')",lf(rl~/.r )ft;•;) 'l.J"? ;_, ~.::1:• t:• '•1.:. .':~~·!-.~' f• .Lo P !j ,,,.'f

~.., 1 • · •' 1 '.~:i, ..'.It seems'to''folfow that the: House· Of Commotts ha8•the ·· _•"··'·) excltisive'powet'ofinteq)reting the statUte, 1so far 'as the ·regu² •t: 'n·:, ' lationtof Jjts 'own•lproceediilgs \vithm itS own l\valls I is' con.:. .,., • ) •i!: cehied; and that e'veh- ifthatinterpretation' should 1be· errone! •• 11 1 ·;« ous; this ·court has'no power tO -interfere !-with! it directly'->or 1

G indirectly ..." h ,, .,,.,ii' ,LtL!;;nJ i" :-11:.i i'1.1, -,,!llJv'.J ?.id1 £!1 ?.S ,'.'1'-'rlw tutl ,; ~; ·'-'•- i ~--; rii ;.i,.s !£!W'>f'a>l :-.tii ;.;r'; • ~iuHl2110? rbufw no111U!1"'f.tQ ~J~~~J­ , _,rlio !ms ·~:!EThe!Housei'oH::ommoifs1 iis'iAot a'llC6i:irf Jr~Jusi'fte1· buigifie ;,:t115bi:::ni _lie:ffe-crrof<ii'~~1'pfivilege"t°O lf'J'gutate:ir1t§1 em~mil.f ~ncem.§ awn. it, 5no 21 pvaeti~any:finve§t n:rWfth ure jlhti<;ifiBb1iaracte'flWHefi!fi1JraS la "· 11 or1 biw ·app19t16'1Jiafficfilatbci~~ th'e~prb~ik'ib'nslof-1!!.~'W10T·'PM1iru\\filit:

• lo ,, We must presume that it discharges this function properly and A d ~? with due regard to the laws, in the making of which itnas so -muo .great a share: If its,determinatiQn is not:in accordance with ,_,Ii b11 · law,. this resembles the. case of an .error by a judge whose -im 'H' • decision,is.not,subject to appeal. There is,nothing startling in Hsi o. thee.recognition of the· fact that such an error.is possible. If, for '{-•·I, '. instance, a.jury in a criminal case gives a perverse verdict, the B ·'1:,-,rc . Jaw has" provided no remedy. The maxim that there is no wrong '..1' 1 -:0'_ _ without a remedy <Joes not,mean, as it is sometimes supposed, ·rd •l.,_l, that.there is legal remedy for every moral or political wrong ..... " • '" , 1 1 t l ~ "[p. 285] I '

?.101 iilbe 'rule· in Br'adlaugh v. Gossett, supra, was held not applicable to C proceedings of colonia},,legislature governed by tl~e written constitutions Barton v .• Taylor, [1886] 11 AC 197 and Redijfusion (Hong Kong) Ltd. v. Attorney General.of Hong Kong, (1970] AC 1136. .,. • ;< ~u , i ..,~,~ I l •!l~' l

r,.,. : ,, The principles in Bradlaugh is that even a statutory right if it related to the•sphere where Parliament and not the courts had exclusive jurisdic- D tion -would be a matter of the Parliament_'s own concern. But the principle ' .J cannot.be extended where the matter is not merely one of procedure but of sµbstantive law, concerning matters beyond the Parliamentary procedure. Even in matters of procedure the constitutional provisions are binding as the legislations are enforceable. Of the interpretation of the Constitution and.asJo what law is the C()urts have the consti_tutional,duty to say what E 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 .. Indeed, the learned. Attorney General submitted that the question .whether as an_ interpr~tation of the co~stitutional processes and laws, such a motion lapses or not is exclusively for the courts to decide. ... F1 .. 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, J968, 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: CONT~NTIONS (B), (C) AND (D):

34. These contentions have common and over-lapping areas and admit of being deal with and di:;posed of together. On the interpretative criteria apposite to the true meaning and scope of Articles 121, 124(4) and 124(5), indeed, three constructional options become available: H

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

A . 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 President, is com- mitted to the two Houses of Parliament alone and no 1..- initiation of any investigation is possible without the ini- tiative being taken by the Houses themselves. No law B mad~y Parliament under Article 124(5) could take away this power. The 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 Hou~e itself. It will be for the majQr~ty of the Members of the House to ""',..._ ~ .~·

c 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 Articles 121 and 124 .(4) has to be on ground of"proved" misbehaviour and incapacity, no such D motion can be made until the allegations relating to mis- behaviour 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 Parlia- ment enacts a law and makes provision for an investiga- tion into the alleged misbehaviour or incapacity and regu- E lates the procedure therefor, no motion for removal of a Judge wolJld be permissible under Article 124(4) and the House of Parliament would not be brought into the pie- ture till some authority outside the two Houses of Parlia- ment has recorded a finding of misbehaviour or incapac- ity. The emphasis is on the expression 'proved'. F Third: That Article 124(5) is only an enabling provision and in the absence of any enactment by the Parliament under that provision it would be open to either House to enter- tain a motion for the removal of a Judge.

G However, it is open to the Parliament under Article 124(5) to enact a law to regulate the entire procedure starting y· with the investigation of the allegations against the Judge ...-. concerned and ending with the presentation of the ad- dress by the two Houses of Parliament. It would be open to the Parliament to designate any authority of its choice H for inve~tigating the allegations and also to regulate the

SUB-COMMITIEE ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.] 55

procedure for the consideration of the 'matter in either A 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 framed by the two Houses under Article 118 of the Constitution. It will not be permissible B for either House to act contrary to the provisions 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 con- duct of a Judge under Article 121 would be according to such Act of Parliament. C

. In regard to the first· and the second alternative propositions, 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 the D 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 en- dangering judicial independence. E 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 civilized piece of legislation deferring to values of judicial independence. But then the Parliament would be free to repeal that law and revert back 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 proyisions 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 investigation and inquiry in the two Houses. Let us elaborate on this. H

56 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A 36. Article 121 and the material parts of Article 124 read as under:

"121. Restriction on discussion in Parliament. - No discus- sion 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 B address to the President praying for the removal of the Judge as hereinafter provided.

124. Establishment and constitution of Supreme Court. '-- (I) ... .c (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consul- tation 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 D 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 E 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 F 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 presented to the President in the same session for such removal on the ground of proved misbehav- iour or incapacity. G (5) Parliament ~y by law regulate the procedure for the pres- entation of an address and for the investigation and proof of the misbehaviour or fucapacity of a Judge under clause (4)." Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any .Tudge is lifted 'upon a motion for presenting H an address to the President praying for the removal of a Judge as hereinaf-

SUB-COMMIITEE ON JUDL. ACCOUNTABILJ1;Y! ;~·. }{?·!;.i,[B.C. RAY, J.J 5Jr ter provided'. The word 'motion' ~d 'a~ fiert:ingfter, P,[/!Y}de_d: ~e,2!>y.ii1 .t}. ous references to the motion for, the purpo~e1 <>f.9.~~u.s~ ,(4)~ ~~-.M.~\e:;H1, 1

- which in turn, imports the C?n~~ptpf "pr~~ed~ raj~~~~.yi?ur ~L~~~p~a!'GJ ity. What lifts the bar under.Article 121 is the 'proved: misbehaviour ;,1.".~&1J~l ~ · • 4

incapacity. Then arises ~e q~e~t~?.~ as ,to ~?~ ~~:i~ve~J!~~j~~.,~~d.J~[?.<?fq •v" or- .:OiJV'< .._ , 1 l •1;,J1 '7.4~1 U.... I \J ....

of misbe~viour Or in£apacity _pre~~ding th~,Jta.geAof,p;1~yo9, f~ f~To,,~m::i on the ground of"proved" misbehaviour or incapacity under 1!f!9le, 1f.1{f#),. ~I is to be carried on. Clause (5) of Article 124 provides for enactment of a lawforthi~purpose. i .. , 1.; : l 1~, ,j • . ~~-: !.,.q'::l,'1> :;~ r 1 U ll' ~ 11' 'LI ..11 1 {1 ·1 '.··t~ .. 1. i• . ...... ,,. t "Jr; 1~~10; • '-~ ~ lliJ :JiJ'~ aµ - , 37. The seminal question _is whether,,claps~ (~).is merel.Y. bl!ng provi~is>,n pa~ic,ularly ~ vi~~ of the ~se <?[. t~e ~~r!i ;ip~y:, the~~.iPi~ ~~~r,

or. it. iJtcorp~r~!~s ,a fOJ?.di1!~n 1 prec~d,e~t <?n. ~~e,P3~~r: .of1 f~!Jl.OV~!G <?Uh,t 1 ·CJ parli~ent. !n. oth~ 1 wor<!~·i:.canat~~ ~c!i~n\,of_ ~em~~~! ~97BM~~l!'.> 124(4)b~.perf9rme~ ~t~<?1:1~ t_!!e,..~,i~ o,t~ l~~.:;~11~!~~ UJ?.d~!.E}~'!s~J~rJfq it .~an ~. theJ1 1tl!~ po'Yerifor, inv~~igat~o~1 .fil.lg 1>r~51f1 of.~!sb~h~yi~!J1:, ,~~n incap_~city, of aJl!dgeJ!'1!!~~ ·~ fo~~ !n <'.!all,~~.~~) ~!_s~lfi!ffi~ 1th~,_~._?P.eq ~fit clat1se. (?)r!in:i~ted_ oJ!lx t.?.J'D~c~~n.~ C!f a. l~~i~9!, !h!~cl!nij!~.9 P..U.!Po.~e ff» the_rarliru.!le!l! ~O. ~esi!es.~<f }!ot o~~erwise'. Tu~ <?ther.,yt~)V !~ ~a!.~la~~~n P1 (5) contain_s a CO!\Stit~tioJ!al li!llita_ti,on on the po~~r o.f re:rp.~val ponta~~~, .... in. ~laus~ .(4). ~o that it ~an .be exercised only Ol! 1inisbehayiol!t o~t~ca~~c;,Jt ity ~·pr~yed" in accordan_ce with the l~w enact~d up.d,er cla_use .(?)}n,.s~c~.( 1 situ~ti9I)., ,the ~wer. of the Parliament WOl;lld !>e£o~e _av~il~bl~_:p~~y ,foJ1, enac!~llg ~e law under clause (5), and if m!_sb~~aviour ,o~ ..inefip~city i~ .~ "pr9v,ed", .~· a~~o!dance ~th such law. The ~_ot_ion, F.~!.C~ 1lifts .~!1~. ~ar;;; E3 contained iµ A!fi,cle J.21 js.really a motion for s1:;1ch.tr~ll}!'_Val,\ll}.d~! ~la~~~ti (4) of Article 124 moved in the House after the alleged m~~J>~H~Y.~% <?foa incapacity has been proved in accordance with the law enacted" by the Pa~!i~merit under pl!l;US~ (~)J?~-Ar!ipl~ 12~. :!!Ulti.s ,99!1cllec~on~.•~e P¥lia- m~ntary-ipr9~~d..!l!e: c9~~n~~~ 9~y1~ft~r pr~!lf_,<?(1.l}i~~~h~v~C!%&~, i~~a}d.1 pafjty JI], .ap.cor.~_c~,~~t~}he :I.a~ _eµac~~d UJ?.der"c~~)J_se (5) 1. th.e .~a.chiµery, m F -q for invest.ig<l;~ion ~~.findipg of,proof of the mi§~ehavio.1:1r incapa~ity'YJ or being sta!u~ory,,goyer;ied e~tif.ely. by provisioµs pf t.he law. enay~~d m~q~r•• !J clause (5). This al~o harmonises Article 12L ,1.'h~ .posiHon ..woul~ be .,tha~.. -~ an allegation of misbehaviour or incapacity of a Judge. has to be made, investigated and found proved in accordance ~ith the law enacted by the ' ' Parliament unde~ Article l24(S) without t~e Parliament being involved . G upto that stage; .on the misbehaviour or incapacity o.f 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 n;moval of the Judge, the bar. on H

58 SUPREME COURT REPORTS (1991) SUPP.2·S.C.R.

A 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 consequence 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 B Article 124(4).

38. If it be accepted that clause (4) of Article 124 by itslf contains the complete power of removal and the enactment of a law under clause

c (5) is merely enabling and not a constitutional limitation on the exercise of the power of removal under clause (4), then some other questions arise for consideration. If clause (5) is merely an enabling provision, then it cannot abridge the scope of the power in -elause (4) and, therefore, the - power of a House of Parliament under clause (4) cannot be curtailed by a mere enabling law enacted 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) D would not take the spher~ covered by the law outside the ambit of Parlia- ment's power under clause (4). The_ argument that without enactment of the law under clause (5), the entire process from the time of init~ation till presentation of the address to the President, including investigat~on 'and proof of the misbehaviour or incapacity, is within the sphere of Parlia- ment, but on enactment of a law under clause (5) that area is carve9 out of the Parliament's sphere and assumes statutory character appears tenuous. 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 re- quired to enact a law under clause (5) regulating the procedure for that purpose. This means that making of the allegation, initiation of the pro- ceedings, investigation and proof of the misbehaviour or incapl'!-cfty of a Judge are governed ':lntirely by the law enacted by the Parliament under clause (5) ai:td when that stage is reached, the Parliament come1:1 into the picture and the motion for removal of the Judge on the ground qf proved misbehaviour or incapacity is moved rorpresentation of the address to the President in the manner prescribed. 11ie,matter not being befor~ t~e Par- liament prior to this stage is also indip~tedby Article 12. l which ljfts 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

SUB-COMMIITEE ON JUDL. ACCOUNTABILITY v. U.O.I. [B.C. RAY, J.] 59

Article 121 applies to discussion in Parliament but investigation and proof of misconduct or incapacity cannot exclude such discussion. This indi- cates that the machinery for investigation and proof must necessarily 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 limitation of Article 121. The word 'proved' also denotes proof iri the manner understood in our legal system i.e. as a result of a B judicial process. The policy appears to be that the entire stage upto proof of misbehaviour or incapacity, beginning with the initiation of investiga- tion 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 cl~ar pointer that the Parliament neither has any role to play till c misconduct or incapacity is found proved nor has it any control over the machinery provided in the law enacted under Article 124(5). The Parlia- ment comes in the picture only when a finding is reached by that machin- ery that the alleged misl>ehaviour 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, D 124(4) and 124(5). The general scheme of the Act conforms to this view. Some expressions 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 a<?cepted. Those expresions appear to have been used since the authority to entertain the complaint is 'Speaker/Chairman', the complaint is de- E 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 com- plaint must be made to the 'Speaker/Chairman'; on receiving such a com- ,.. plaint if the Speaker/Chairman form the opinion that there is a prima facie case for investigation, he will constitute the judicial committee as pre- F scribed; and if the finding reached is 'guilty' then the Speaker/Chaiman commences the parliamentary pocess 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 under clause (5) of Article 124 and the stage upto G " 'i 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 con- ducted in accord~ce with the law enacted under clause (5). For this reason the argument based on exclusivity of Parliament's jurisdiction over H

60" ( SlJPREME COURT REPORTS [1991] SUPP. 2 S.,~.R. ,! r

A the process and progress of inquiry under the Judges (Inquiry) Act, 1968 ·'"'- ~~:~0~¥~9ue~t~f ·.e~~lusion of this Court's jurisdictio~ in th~~!~~,' ~J 1

~-~~ s~~edoe_s not an~e. F?r ~e same reason, the questt.o? ~f.a~~l~1,1g ~h~ 1 d,(),ctnne.. of lapse, to the motion made to the S1>7ake! g1vmg,,rt_se ~.!~~J constitution l,' fl · r of ,the Inquiry Committee under the Act, also ,does not ari~e. ~ ~ J '· Li

aj~, ~-e~e can b~ no occasion for the House to_ say so. at any tim~· .If t!-1~,, • • • ' • ' ·: • - .. •

~l f!o~s(i~, there~ore, not required to consider this question ~ince,~e,p3!,_l,~~:-u ~~~~-~toc~ss.can ~omm~nce o?ly after a fmding. ?f guilt beingl~~~~j.!~ the further question of a futile wnt also does not anse. The argument that ~~~:tt.o'~~ .~fill decide even after a finding of guilt 'that l i,t_ ~ ~o,uj~. ~o~: PfOCee~ ~ vo~ ~or removal of the Judge is not germane,to ~e Assue~~'=°~~ ~~! i~ J;ennissible in the Constitutional Scheme itself under Art!cle .I.M(1). 1 c I itr;~,sP-~~!iv~1 of ihe fact whether_ Articl~ 124(5) is a_ mere en~b~ing_P,~oxi-11 sio~ C:/i;ao' c,on,.st.i~ti<?nal limitation on the exe~cise of p~~er 1;ll;14er.~~~~~.1 124(4). . ··_·. ' ~ ' Slt Lh""'I -~H~ I t._1i - t . ..i~ ·.~~ ! ·11'·.;tiidoRm "'~-) ,-.l .. l~.i .i r, -· . . ' '; .T ,·; ,~·.r ) j rn·J . n

ltf j - ' • I -

.:;rr ~i1!f ~~!}h7 l_~w·~~~cted under.Arti~le)2~(5) w~~~h ~[i<,lg~,s 9L c~~.~ .~~e p~~i~en~~ 1 proc~ss or exclusively of.its juris~sti~~ ~u!·!~t'.t c9~~ti~!i,<?p~fS~hem~ it.self ~ich by en,actit~g clauses (4),~d (5) ~~.~W;-1; taneously indicated that the stage of clause (4) is reached and the process, tl}ii~~~~t ~?~mences o~y when the alleged misbehavio~ ~yail~<?fty,. or ... is......provea m accordance •.r,,..; t •fl r .,. with . the law enacted under clause (5). . , .• 1. .. : ,, • . , , ., ,.1 _ ·.'.I • :' · . ~.· , r; ., 111,.J j

'· J•42. It is'only then that the need for discussing a Judge's conduct in th~ '.Parli~~nt ,arises ,and, ,therefore, the bar ~der Article l ~ i~ Jitte4,· f :Ji; s~,o~.:J!>-tf.~.~t :°if ~~'!le .'Y?en the matter come~ first. ~efor.~..t~~ ,Pai_:li3}117H!1- iIU~~ ~?~~i~~ioruµ, S~heme, Article l,~.1. pro~des tha~ ."!~:..~lll" is ~i~~u ~~:,?-!h-~,~jv~~w-~~7~~s diffi_~ulties b~ restricting ~s~u~~,i~~ ~.!ar!i!lm~9~.:; on1 ,~ .~?tW~, ~~~~ .~?~~ be before it. The suggest~on _to .~ey~l<?,P, .~ ~~~q ve.~tIB1\.~~\~vot1 ?:is·r~ssi<?n .~~ that stage. or t<:? preven~ i! ~Y lID.Y. ~~~i:q device adoptea \by ...._ l(l ,; ,. ,_ •• '' .., the_J Speaker after admjtting 'the motion, .. ·, I ' ; I - : • does , .. not ., ap~ar . .,,,...,_4 ~

to be a fl.::.,.~, .. 'satisfactory "l solution 1 • ,..,, or explanation. • • . That ,1 this obvious,situation. ; • r. . - .,,. . ~

could liave been left unprovided for and the field left to a convention to be. develi>ped later, ~bile enacting these provisions with extreme care and caution 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 parlia- m~ntary 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 Parliament'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

.X SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.] ::61 ''ptoces"s'iindJr clai.iSe·;(4) commences, culminating in ·the resuJtlproVided in PA btt.1",!i'fll <><J.J.. • ., " 1. ';" 'c"p.·,, I ,Q UOf':tid'.J<fa!m' 1o 1£'i(lf''.J1 101 ,•nru. · , J1. " ' . .-; ".r1 i ••• • , voi~rvow "Ir;· ''Jflw

( i i -. ,.43, ,Jn Part··Vi of the Constitution relating to':lThe·. Unioni;' 1Article 1cl24. is·~/Chapter·IV.~ .The UnioJ! Judiciary! while'Articles:tJ8 .and\ltl.9 Helating-to.Parli_arnen~'.s;power to makcrules.or enac~ a-law-!p,r~gulM~!its . procedure· and. tbe conduct· of it~ busine_ss ar~. in :'Chapter rJI ·:. ·P;u:l~~!:!n\ r13 (under; the heading ·)'Procedure. Generally' .wherein· ArticleJ 11'2 l ·lalso:lfll1~$ ~place. The.context and setting in'whichiclause (5) appears.a101;1.g::,wHJi

-- rcfau~e·(4) in· Article·.124. in~icate-its nature connected~wjt!J.1.~.1iluse {4) trelatiilgrto c~lment of.a Judge's,tenure,:clause (4) providi11g .th,e:!'!;@.:- t nerc<>f· removal .and clause (5) the pre-requisite. for; removaJJ qis!!pgu_ts]1&9 .frpm 11 Articlesctll8,)19, and 121,- all 0(1which-relatei!~;pr-0~~~1.lf~Jl!l!~ 'Q: .c;:ondu.ct of:business·in Parliament..Article 1~(5).does J!0!1;:tl!erfo..r.e .. iQP~!'1 ~te in the}same field ~,Article l l 8_re!ating ;to,;pfo_C!'~lJ!e1@d.~o~~!c19l,,Qf •business in :Parliament 1~ •t1A n• 1;:. .'<J'1' b10w ~d11o noitibbs !>dt I( ).' c I ~' 1t'. ' ,1: nu ~nqiuq <: i1!t "''"~ Accordingly, the scheme is that the entire process of removal is in two·part~e firsf:pait iunder _c_lal:l~ ,(5) from •jnitiation.,to investigation D ru;id,proof of misbehaviour,or,i~capacity is-covered by an enacted law, Parliament's role t>eing -only legislative as in, all the laws enacted by it; and the second pat1.only after proof under clause (4) is in Parliament, that process,c:omm~ncing~only on proof in accordance with the law enacted under clause (5). Thus the first part is entirely statutory while the second part_?:_lo~eAs ~he parliamentary process. E :cirH no tn J3 :-o.:r ·,1 "' I. ii:nt~·u'fh~ ~onstitution intended a clear provision for the first part 2£V~~ed.fuJly by enacted law, the validity of which and the process there- w.!.~e[.,~ing subject to jml~cial review independent of any political colour an~'..~fte,!' p~9of it, was intended to be a pruliamentary process. It is this sy~t~~s.is inade. in ~ur C~nstitutional Scheme for removal of a Judge. p °'"'m' 1'\,, 1lL\I ~·:I I . 6 0 ~ 1 1( t~.1?._J!l_otion_ for presenting an address for removal is envisaged by ¥icl~s )_21 a~~ 124(4) 'on ground of proved misbehaviour or incapacity' i! P!~~l!PP?.ses' that misbehaviour or incapacity has been proved earlier. Th!~, i~ 11R?r.e so on account of the expression 'investigation and proof u.~~4:i~,c~ause (5) with specific reference to clause (4). This indicates that G '!pv,estigation and proof of misbehaviour or incapacity is not within clause (4) ~ut~ within clause (5). Use of the expression 'same session' in clause

- (4) without any reference to session in clause (5) also indicates that ses- sion of House has no significance for clause (5) i.e., 'investigation and P~?Of ".l'hic~ is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha. H

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

A 45. ·The significance of the word 'proved' before the expression 'misbehaviour or incapacity' in clause (4) of Article 124 is also i~dicated ,,,..... ' 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 remcval is 'the ground of misbehaviour' while in clause (4) of Article 124, it is, 'the ground of proved misbehaviour or incapacity'. The procedure for removal of a mem- ber 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 tlie ground of misbehaviour under Article 317 (I) is to be by the Supreme Court, in the case of a Judge who is a higher constitutional functionary, the requirement of judicial determination 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).

D 46. Use of the word 'rilay' in clause (5) indicates that for the 'pro- cedure 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.

" .... The enabling words are construed as compulsory whenever H the object of the power is to effectuate a legal right.. .."

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.J 63

" .... On behalf of the appellant attention was drawn to the ex- pression 'may' in Rule 63. But in the context and the language B of the rule the word 'may' though permissive in form, must be .held to be obligatory. Under Rule 63 the power to grant re- newal of the counter-signature on the permit in the present -: case is conferred on the Regional Transport Authority, Bilaspur. The exercise of such power of renewal depends not upon the discretion of the authority but upon the proof of the particular c cases out of which such power arises. 'Enabling words are construed as compulsory whenever 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 Articlel24 (5) is given any other meaning that D sub-Article would render itself, to be treated by the Parliament, as super- fluous, redundant and otiose. The power to prescribe a procedure for the exercise ()f 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 constitutional policy and philosophy of the machinery for removal of Judges. E

The use of the word 'may' does not, therefore, necessarily indicate that the whole of clause (5) is an enabling provision leaving it to the Parliamet'l.t to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapacity or not. F The mere fact that clause (5) does not form a part of clause (4) itself, as appears to have beea considered at one stage when the constitu- tion was being drafted, does not reduce the significance or content of clasue (5). It is likely that the framers of the Constitution thought of clearly demarcating the boundaries and, therefore, indicated that upto the G •·· • k. stage of proof of misbehaviour of incapacity the field is covered by a law enacted by the Parliament, the first part being covered by cfause (5) and the latter by clause (4) with the on!y difference that the Parliament was given the option to regulate even the procedure for the presentation of an address after the misbehaviour or incapacity had been proved by enacting a law for the purpose to make it more definite and consistent. H

64 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A 48. Similarly, use of word 'motion' to indicate the process of inves- tigation and proof in the Judges (Inquiry) Act, 1968 because the_ allega- tions have t9 be presented to the 'Speaker' does not make it 'motion in the House' notwithstanding 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 · B proved, the Speaker need not commence the process under clause (4) which is ~arted 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 enactment under Article 124(5) cannot be a safe guide to determine the scope of Article 124(5). c 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 Scheme.

49. On scope of the law under Article l24(5), the idea of regulating D ... procedure for (i) Presentation of the address; (ii) Investigation and proof of misbehaviour or incapacity admit of two possible options of interpreta- tion. 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 E House till the final act of delivery of the address. If the first view is I correct the law under Article 124(5) would apply at the stage of investiga- tion 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 adoption by the House would be outside the ambit of such law and it would be regulated by the rule of procedure- made under Article 118. This view is too narrow. By bringing in the rules of procedure of the House made under Article 118 it intro- . duces an element of uncertainty and might affect independence of the judiciary. ·

50. Second view is to be preferred. It enables the entire process of removal being regulated by a law of Parliament - ensures uniformity and reduces· chances of arbitrariness. Article 118 is a general provision confer- ring on each House of Parliament the power to make its own rules of J procedure. These rules are not binding on the House and can be altered r, , 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.

H 51. ArticlP. 124(5) is in the nature of a special provision intended to regulate the procedure for removal of a Judge under Article 124(4) which

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. JY..Y, J.]. 65

is not a part of the normal business of the House but is in the nature qJ A 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 B 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 over- ride the rµles made under Article 118 and shall be binding on both the Houses of Parliament. A violation of such a law would constitute illegal- C ity and could not be immune from judical scrutiny under Article 122(1 ).

53. Indeed, the Act 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 Com- mittee for investigation records a finding th~. the Judge is guilty of the D 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 re- moval 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. E

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 tae thrust of the report 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 F 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 be- came the law. Dr. Singhvi in his dissent Says :

"IO .. The present Bill seeks to provide only the modality of a G tribunal clothed in ihe nomenclature of a Committee. The Com- mittee contemplated in the Bill may well be considered a tri- bunal or an "authority" within the meaning of Articles 226 and 227 of the Constitutfon, rendering its work subject to judicial review and supervision. What is more, the Parliamnet is not left with any choice in the matter and procedure of parliamen- H

66 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

) A tary committee has bet:"n wholly excluded. With this I am not in agreement.

11Copy pinpoint11. 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 B notice of such resolution should be signed by not less than one-fourth of the total membership of either Chamber of Par- liament and further that the charge woul~ be investigated by a special tribunal (S. 143 of the Burmese Constitution). In the Burmese case, the special ttibunal was to consist of the Presi- dent or his nominee and the Speakers of the Chamber of Na- c tionalities and the Chamber of Deputies. I feel that the Bur- mese analogue is neither inspiring nor instructive, and that the more highly evolved procedures of other democratic constitu- tions which have been tried and tested for centuries would have served us better".

D 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 aie not, strictly, proceedings in the Houses E 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 jurisdic- tion. Contention Bis 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 F 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 ac- - cordingly.

G The Speaker while admitting a motion and constituting a Committee to investigate the alleged grounds of misbe~aviour 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 unconstitu- tional as abridging the powers and privileges of the House. The Judges (Inquiry) Act, 1968 is constitutional and is intra vires. Contention D is H disposed of accordingly.

SUB-COMMITTEg ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.) 67 \

RE: CONTENTION (E) A

~ 56. It is urged by Shri Sibal that having regard to the serious conse- •-:._. quences 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 Speaker to afford an opportunity to the Judge of being heard before such a decision is ta,ken. It is urged that such decision has momentous B 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 administration 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 concerned himself is heard before a decision to admit a C motion which has shattering consequences so far as the Judge is con- cerned 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.

51. Shri Jethmalani, on the contrary, contended that it would be D _,. 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 .._,. Jethmalani sought to point out that these proceedings could not be equated E with disciplinary or penal proceedings. The Speaker does not decide any- thing against the Judge at that stage.

Referring to the nature and purpose of such preliminary proceedings Corpus Juris Secundum (Vol. 48A) says: F "As a general rule, disciplinary or removal proceedings relat- ing 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 ofjudicial fitness". [p.614] G -...; 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 opport"!111ity to defend even though there is no statute so requiring. Ordinarily, H

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

A the right to defend is exercised in a trial or hearing, as consid- ered infra 51. More specifically the Judge is entitled to notice of the particular charges against him. In addition, notice of the charge should be given sufficiently in advance of the time for presenting a defence to pennit proper preparation of a showing in opposition". B (pp. 613-614) But negativing the position that the Judge would be entitled to no- . tice even at the preliminary stage it is stated :

"Investigations may be conducted into matters relating to judi- c cial conduct as a preliminary to formal disciplinary proceed- ings. A judiciary commission may conduct an investigation 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 D over a preliminary investigation. A court rule providing that a ---~- Judge charged with misconduct should be given a reasonable

'\ , opportunity in the course of a preliminay investigation to present such matters as he may choose, affords him more protection

E • 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 F such a right. But that may not prevent the Speaker, if the facts and cir- cumstances placeed 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 decision. Contention E is disposed of accordingly. G RE : CONTENTION (F)

59. The substance of this contention as presented by the l~ed counsel for the petitioner, "Sub-·Committee" - argued with particular emphasis by Shri R.K. Garg - is that the constitutional machinery for H removal of a Judge is merely a political remedy for judicial misbehaviour

SUB-COMMITIEE ON JUDL. ACCOUNTf.BILITY v. U.0.1. [B.C. RAY, J.) 69

and does not exclude the judicial remedy available to the litigants-io A enS\Jfe 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 intergity and character. Without this 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 quali- ties and attainments at which public .confidence is built. B

It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct. Any conduct which tends to impair public confidence in the efficiency integrity and impartial- ity of the court is indeed forbidden. In Corpus Juris Secundum (Vol. 48A) referring to the standards of conduct, disabilities and privileges 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. E Guidelines for judicial conduct are found both in codes of judicial conduct and in general moral and ethical standards expected of judicial 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 insofar as they prescribe conduct which is malum in se as opposed to malum prohibitum they operate to restate those general priniciples that have always governed judicial conduct.

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] On the nature of prescribed conduct it is stated : H

70 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

"A Judge's official conduct should be free from impropriety and the appearance of impropriety and generally, he should refrain from participation in activities which may iend to lessen pv.blic 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 B from impropriety and the appearance of impropriety and that . both his official and personal behaviour be in accordance with . the highest standard society can expect. The standard of con- duct is higher than that expected of lay people and also higher than that expected of attorneys. The ultimate standard must be. conducted which constantly reaffrrms fitness for the high re- c sponsibilities of judicial office and judges must so comfort themselves as to dignify the administration of justice and de- serve the confidence and respect of the public. It is immaterial that the conduct deemed objectionable is probably lawful al- beit unjudicial or that it is perceived as lowhumored horseplay. D In particular, a judge* should refrain from participation in ac- tivities 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 others. While a judge E does have the right to entertain his personal views on contro- versial issues and is not required to surrender his rights or oi.1inions as a citizen his right of free speech and free associa- tion are limited from time to time by his official duties and he must be most careful to avoid becoming involved in public controversies". F [pp. 594-596] In Sampath Kumar & Ors. v. Union ofIndia & Ors, [1985] 4 S.C.C. 458, dealing w1th the qualifications, accomplishments and attainments of tbe members of the Administrative Tribunal, which were intended to sub- stitute for the Righ Courts, this court emphasised the qualities essential for dischargini ju!Jjcial fjlnctions.

60. But we are ~id the proposition that, apart from the constitu- tional machinery for removal of a Judge, the judiciary itself has the juris- diction 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 wjth grave risks. The court would then indeed be acting as a tribunal for the reml)v~ of a Judge. Learned counsel supporting the proposition

SUB-COMMITIEE ON JUDL. ACCOUNTABILITY v. U~O.I. [B.C. RAY, J.] 71

stated that the effect of restraining a Judge from exercising judicial func- A 1

tions is- not equivalent to a removal because the conditions of service such ~ 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 unaccept- able. 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 relating 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 conh.ined 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 judi- cially on initiation of the process under the Judge (Inquiry) Act, 1968. The Constitutional Scheme appears to be that unless the alleged misbehaviour or incapacity is 'proved' in accordance with the provisions of the law D -' 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 Consti- tutional Scheme therefore is that the Judge's conduct cannot be discussesd 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 inves- ·tigation 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 incapac- ity is not contemplated it being alien to our Constitutional Scheme.

62 ..The question of propriety is, however, different from that ()f legality. The absence of a legal provision, like Article 317(2) in th_e c;ise of a Member of Public Service Commission, to interdict the Judge faced with such an inquiry from contirung to discharge jmlicial functions pend~ ing the outcome of the inquiry or in the event of a finding of misbehav- iour 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 H

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

A 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 ex- pected 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 B to hold the office of a Judge unless he resigns or is removed, an arrange- ment 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 317 (2) in a similar situation has deliber- ately abstained from making such a provision in case of higher constitu- ~-·-.

tional functionaries, namely, the Superior Judges and President and Vice- G President of India, facing impeachment. It is reasor;able to assume that the framers of Constitution had assiimed 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 D situation to avoid embarrassment to the learned Judge and to the Institu- . tion 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 foi the learned Judge to abstain from judicial work till the final outcome und~r Article 124(4), he would advise the learned Judge accordingly. It is further reasonable to assume that the , E 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.

F 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 Khan<le.iwal's petitions. We may notice the relevant avennents:

G "It is, there~ore, disconcerting to note that the Speaker acted contrary to Constitutional practice. It is assumed that this high Constitution.'\l functionary would have known of the well set- tled and esm"lished constitutional practice in regard to the fact --- that motions lapse with the dissolution of the House. The ac- tion of the Speaker, therefore, in admitting the motion in the H manner that he did, smacks of ma/a fides and, therefore, de-

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. (B.C. RAY, J.] 73

serves to be struck down. A The action of the Speaker is ma/a 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 signa- tories to the said motion, the petitioners verily believe, belong mostly to the Janta Dal, though the details of this fact are not precisely known to the petitioners. The Speaker, 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 ta- bled 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 materi- als to Justice Ramaswami and sought a response from him before attempting to admit the motion. The Speaker ought to have dealt with the motion much earlier and transmitted to Justice Ramaswami all the materials as well as the views that · might have been expressed to him in the course of his consul- tations which enabled him to come to a decision. The Speaker in the very least ought to have ascertained the wishes of the E 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 functionary. The Speaker ought also not to have F

dealt with the motion, the prime movers of which are members of his own party. The Speaker ought to have disqualified him- self 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 Constitutional functionary. The ac- G tion of the Speaker is ma/a fide and deserves to be struck down on this count alone."

The averments as to mala jides are intermixed with and inseparable from touching the merits of certain constitutional issues. Indeed, mala jides are sought to be impugned to the Speaker on the grounds that he did H

74 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A not hear the Judge, did not have the motion discussed in the Ho_use etc. We have held these were not necessary.

64. But a point was made that the Speaker not having entered ap- pearance Md denied these allegations on oath must be deemed to have admitted them. It appears to us that even on the allegations made in the B 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 authority to deal with the matter, doctrine of statu- tory exceptions or necessity might be invoked. Contention G cannot there- C fore 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 main- D tain the proceedings. If this is true, then the petitioners in Transfer Peti- tion 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 undergone a vast change over the years and liberal standards for ·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 precedents over again is unnecessary. Suffice it to say that from any point of view the petitioners satisfy the legal equipments of the standing to sue. We, therefore, reject the Con_tention 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 diginity and courtesy with which the learned judge is entitled. The . arguments seemed to virtually assume that the charges had been estab- ' lished. 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

SUB-COMMITIEE ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.] 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 twpitude, the judge does not suffer irreparably in the very process. The approach should not incur the criti- cism 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 re- quired 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 portection to Judges is not for their personal benefit; but is one of the means of protecting the judiciary and its i,idependence 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 desired to be placed the Court had, indeed, expressed deep anguish at the way the petitioners had been permitted themeslves to sit in judgment over him and deal with him the D ,,.,., 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 su~h 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 preliminary to and preceding the deliberations of the House on the motion for tbe presentation of an address to the President for the removal of a Judge. ·'The fatter, it is''brg~d. is indisputably with in the exclusive province o.f the Houses of.:Pattiament over which courts exercise no control Oi jurisdiction. 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. Sinee the committee and its G inveStigations have neither any independent existence nor separate legal effect otherwise than as confined to, and for the purposes and as part of the j)ossible o/opective proceedings in the Houses of Parliament, the court sh<>ulc1 decline to exercise jurisdiction on a matter which is of no inde- pendent legal consequence of its own and which, in the last analysis, falls alld remains entirely in an area outside the courts' jurisdiction. It is urged H

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

A that both from the point of view of infructuousness, propriety and futility, the court should decline the invitation to interfere even though that part of the proceedings pertaining 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. B

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 Parliament and declare the decision of the House void? c The second area of the suggested source of infructuousness 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 Government if the House is of the view that Government is guilty of an illegal inaction on the Speaker's decision as ultimately the House has dealt with the committee's report.

69. On the first point there is and should be no difficulty. The interpretation of the law declared by this court that a motion under section 3(2) of ihe Judges (Inquiry) Act, 1968, does not lapse upon the dissolution of the House is a binding declaration. No argument based on an assump- tion that the House w0,uld 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 interpreta- tion of the law is within the exclusive power of the courts.

F 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 Unio~ Government has sought to interpret the legal position for pur- poses 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-

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. [SHARMA, J.] 17

tional position and leave the different organs of the State to consider matters falling within the orbit of their respective 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 a8 contained in the judgment. B

Writ Petition Nos. 542 and 560of1991 are dismissed.

Transfer Petition No. 278of1991 is allowed. Writ Petition No. 1061 of 1991 is withdrawn from the Delhi High Court. The transferred writ petition is also dismissed. C

SHARMA, J. I have gone through the erudite Judgment of my learned Brothers, an<f I regret that I have not been able to persuade my8elf to share tJteir views. In my opinion, all these petitions are fit to be dis- missed. D The stand of the petitioners in W.P. (C) Nos. 491of1991 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. · E

2. The main arguments on their behalf have been addressed by Mr. Shanti Bhushan, Mr. R<µn Jethmalani and Mr: RK.Garg, all appearing for the petitioners in W 1P. (C) No. 491 of 1991, which has been treated as the main case. Although in substance their stand is similar, they are not consistent on some of the points debated during the hearing of the case. F They have been supported in general terms by Ms. Indira Jaising and Mr. P.P. Rao, the learned counsel representing the Supreme Court Bar Asso- ciation, the petitioner 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. G 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 misbehav- Jj iour of the third respondent was constitute'd on 12.3 .199 I under the provi-

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

A sions of the Judges (Inquiry) Act, 1968 (hereinafter referred 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. 560of1991. The Lok Sabha was dissolved the very next day, i.e. 13.3.1991.

B 4. Mr. Attorney General appearing on behalf of the Union oflndia has contended that this Court should affinn 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. ·

C 5. According to the case of the petitioners, once the Committee was constituted, the entire inquiry must be completed 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 rejected. 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 D practically possible for the Committee to complete its task. Since the obligation to act accordingly, arises under. the Act, this Court has full I. ' authority ~to enforce the perfonnance of the statutory duty; and having regard to the circumstances in the present case it is appropriate to exercise that power.

E The petitioners further pray that in the meantime the third respond- ent 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 re- spondent but this Court while issuing Rule Nisi after hearing learned counsel for the parties, did not consider it expedient to issue notice to the F Chief Justice. A prayer for interim direction in this regard was also re- jected. During the hearing of the cases another application to the same effect was filed and was heard at considerable length and ultimately re- jected by a reasoned order.

6. Mr. Sibal, the learned counsel for the respondents has chal-, G lenged the maintainability of the writ petitions, on . the ground that the matter is not justiciable. It was further argued thaf.since the Speaker proceeded to admit the Notice of Motion initiated by:lpg Members of the Lok Sabha without reference to the Hous~, 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 ma la fl des. So far as the effect of the' dissolution of the

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.O.L [SHARMA, J.] 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-justiciability, Mr. Sibal has indicated that it is for 'the House to decide this issue.

Long arguments were addressed by the learned counsel for the par- ties on the correct interpretation of Article 124(4) and (5) and the Act, and B 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 a/ia, prayed for declaring the Judges (Inquiry) Act, 1968 and the C Rules framed ther:eunder 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 re- D gard. During the course of his argument, Mr. Sibal, in reply tp 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 E stand of tfle respondents 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 F Speaker who is a Memberand officer of the Parliament cannot be sub- . jected 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 by the Committee has been ordered has lapsed or not and whether the inquiry should further proceed nr not are for the House to determine, and its decision will be final. Reference was also made to G Article J00, but the le.arned 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 H

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

A 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~mo­ tions, adjournment motions and debates are beyond the purview of judi- cial scrutiny. Counsel said that it does not make any difference that in the present case it is the Union Government, which has taken a decision for B 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 Parliament.

c 8. Although in my final conclti~io11 .I agree with the respondents that the courts have no jurisdiction in the'pre8ent matter, I do not agree with Mr. Sibal's contention based on an assumption of the very wide and exclusive jurisdiction 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 D argued that since the matter relating to the removal of a Judge is from the very beginning within the exclusive control of one of the Houses· of th.e 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 bat on discussion in the House on the Judges' conduct will disappear from the initial stage itself, but that cannot be helped. He relied upon the iri.~erpre- E tation 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 exercising his discre- tion after taking into account the impropriety of such a debate. F