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

A I 10. In England a Judge of the superior courts can be removed only o~ presentation of an address by both the Houses of ,Parliament to the Crown. Proceedings may be initiated by a petitioll to either House of Parliament for an address to the Crown or by a resolution for an address to the Crown to appoint a committee of inquiry into the conduct of the person designated, though preferably they should be commenced in the B House of Commons. Sometimes [as in Barringtons Case (1830)j, a Com- mission of Inquiry is appointed and the matter is considered.in the light of the report of the said Commission. The motion for removal is considered by the entire House. In case any enquiry is to be conducted into the allegations, it is either referred to a Select Committee of the House or to the Committee of the whole House. Opportunity is given to the Judge c whose conduct is impugned to make defence on public inquiry.

The report of the Committee and its recommendation are placed before the House where the matter is.debated.(See : Halsbury's Laws of England, 4th Ed. Vol. p. ll08).

· D 11. This process has been subjected to following criticism -

(i) legislative removal is coloured by political partisanship inasmuch as the initiation of the process as well as the ultimate result may be dictated by political considerations and process of fact-find- ing and deliberations also suffer from party spirit. E (ii) the government has considerable control not only on the ultiniate result of the proceedings but also on parliamentary time which enables them to prevent motions for an address from being adopted if it suits them. (iii) the legislative procedure is not adequate for adjudicative fact- F finding; and (iv) since Parliament is the master of its own procedure, the proce- dures and rules of evidence appropriate to judicial proceedings which would seem to be required in a case of judicial removal are unlikely to be allowed in Parliament. (See: Shetreet - Judges on Trial (1976) p. 405-407) G !2. The Justice Sub-Committee on the Judiciary considered the ques- tion whether the existing process for removal by address of the Houses should be substituted for or supplemented by a new mechanism designed to meet changing needs and conditions. The Sub-Committee, in its 1972. Report, answered the said question in the affirmative and has proposed a new procedure for removal of judges. The Sub-Committtee has recom- H mended the establishment of an ad hoc judicial commission to be ap- ,

SUB-COMMl'T!EE ON JUDL. ACCOUNTABILITY v. U.O.I. (B.C. RAY, J.) 33

pointed by the Lord Chancellor, if he decides that the question of remov- · A ing a judge is to be investigated. The Commission should include a major- ity of, and in any event not less than three, persons who hold or have held high judicial office. Members of Parliament or persons who hold or have held any political appointment would be excluded. Upon completing its inquiry the ad· hoc Commission shall report the facts and recommend whether the question of removal of a judge should be referred to the B Judicial Committee of the Privy Council. If the Commission so recom- mended, the Privy Council would consider the matter and if it concluded that the judge should be removed, it would S\l advise Her Majesty. [see: Shetreet 'Judges on Trial', (1976);. pp. 404-405].

Dr. Shetreet has suggested a via-media and has favoured the estab- C' lishment of a Judicial Commission for removal (but not for discipline short of removal) along the lines suggested by the Sui>-Committee but has expressed the view that the existing process of address should also be preserved. [See: Shetreet 'Judges on Trial', (1976); p. 409]. Similar view has been expressed by Margaret Brazier. (See: Rodney Brazier 'Constitu- tional Texts' (1990) pp.606-607). D

13. In Canada, under section 99(1) of the Constitution Act of 1867, the judges of the superior courts hold office during good behaviour, and are remoyable by the Governor-General on address of the Senate and House of Commons. On petition for removal submitted in 1868 and 1874 the matter was referred to a Select Committee of the House. In a third case in· 1874 the judge died before any action could be taken on motion for appointment of a Select Committee ..Recently ill 1966-67, a motion for removal of Mr. Justice Leo Landreville of the Supreme Court of Ontario was moved and in that connec,tion a Royal Commis~ion consisting of Mr. Justice Ivan C. ·Rand, a retired judge of the Supreme Court of Canada was appointed under the Inquiries Act R.S.C. 1952 C. 154 to conduct an enquiry. After considering the report of the said Commission, a Joint Committee of the Houses recommended removal but the judge resigned while Parliament was preparing for his removal by joint address. Thereaf- ter, Judges Act was enacted in 1971 whereby Canadian Judicial Council has been ~eated. The functions of the said Council as set out ins. 39(2) include making the enquiries and the investigation of complaints or alle- G ... gations described ins. 40. Section 40 provides that the council may con- duct an enquiry to determine whether a judge of superior, district or county court should be removed from of~ce and it may recommend to the Minister of Justice of Canada that a Judge should be removed from office. The grounds on which such a recommendation can be made are set out in s. 41(2) of the Act and they are : (a) age or infirmity, (b) having been H •

34 SUPREME COURT REPORTS [1991) SUr'P. 2 S.C.R.

A guiliy of misconduct, (c) having failed in the due execution of his office, or (d) having been placeci, by his conduct or otherwise, in a position incompatible with the due execution of his office. (Gall 'The Canadian LegalSystem' (1983); pp. l84-186).

\ In l982 the matter of Mr. Justice Thomas Berger, a Judge of the :B . Supreme Court of British Columbia, was investigated by the Canadian Judicfal Council prompted by certain remarks made by the judge. The Council concluded that the public expression of political views in the nature oft:tose made by Mr. Justice Berger constituted an "indiscretion", but that they were not a basis for a recommendation that he be removed from office and on the basis of the said recommendation, no further action was taken though Mr. Justice Berger tendered his resignation as a judge a few months later. (See: Gall: The Canadian Legal System, (1983) p. 189). . . 14. Under section 72(ii) of the Commonwealth of Australia Consti- tution Act, 1900, the justices of the High Court and of the other courts created· by the Parliament cannot be removed except by the Govemor- D General-in-Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved · misbehavior or incapacity. Similar provisions are contained in the Consti- .. tutions of the States with regard to removal of Judges of State Courts.

Proceedings were initjated for removal of Mr. Justice Murphy of the E High Court of Australia in 1984 under section 72(ii) of the Common- wealth of Australia Constitution Act. In connection with those proceed- ings at first a select Committee of the Senate was appointed to enquire and report into the matter. It consisted of six senators drawn from three political parties. The Committee by majority decision (3: 2, one unde- cided) found no conduct amounting to misbehaviour under section 72(ii). F In view of the ·split vote a second Committee of four senators from the same three political parties was established and it was assisted by two retired judges - one from the Supreme Court of Western Australia and the other from Supreme Court of the Australian Capital Territory and the said Committee recorded its finding but the judge did not appear before either of the committees. The judge was also prosecuted before the Central G Crimin.al Court of New South Wales and was found guilty of an attempt to pervert the course ofjustice but the said verdict was set aside by the Court of Criminal Appeal. Fresh trial was held whereunder the judge was found not guilty. Thereafter, an ad hoc legislation, namely, Parliamentary Com- mission of Inquiry Act, 1986 was enacted by the Commonwealth Parlia- H ment and a Commission consisting of three retired judges respectively of Supreme Court of Victoria, Supreme Court of Australia Capital Territory

SUB-COMMITIEEON JUDL..ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.] 35

and the Federal Court and Supreme Court of South Australia was consti- A tuted to investigate into the allegations of misbehaviour. Before the said " commission could give its report, the judge became gravely ill and the Act . --. was repealed [Lane's Commentary on the Australian Constitution, (1986) p. 373).

15. In one other case, proceedings for removal were initiated against B ·Mr. Justice Vasta of the Supreme Court of Queensland and for that pur- pose, the Queensland Legislature enacted the Parliamentary (Judges) Com- mission o·f Inquiry Act, 1988 whereby a commission comprised of three -'(" retired judges respectively of the High Court of Australia, Supreme Court of Victoria and the Supreme Court of New South Waies was constituted. c

16. In Australia, there has been criticism of the existing procedure with regard to removal of judges both by judges as well as by lawyers. Mr. Justice L.J. King, Chief Justice of the Supreme Court of South Aus- tralia, has observed:

"The concept of removal by an address of· both Houses of D Parliament is itself the subject of a good deal of criticism. Curiously, common criticism which are made are contradic- tory. One criticism is that the necessity for the involvement of the legislature ensures that the procedure will not be used and that the judges therefore have a practical immunity from re- moval. Removal by this means is certainly extremely rare. E That may be, however, because in the countries in which this procedure prevails, conditions are such that a judge who com- mits a serious act of judicial misconduct would certainly re- sign. That consideration, together with the fact that standards of judicial conduct are generally very high in those countries, renders removal by the legislature a rarity. The opposite criti- F · cism, however, is that there is no established procedure for the trial of a judge whose remQval by the legislature is sought. It is assumed that the legislature would itself institute some form of inquiry at which the judge would be able to defend himself ·against the accusations, but that would be a matter for the . .. legislature in each case. There are some who fear that a parlia- G LW ._,. mentary m~jority, encouraged by inflamed public feeling about an unpopuiar judicial decision, might some day act to remove a judge .without due process.

It is at teasd\uestionable whether the system of removal by an address of both Houses of Parliament accords to a judge the H

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

A degree of'security which is required by the concept)Jf judicial independence.

['Minimum Standards ofJudic.ial Independence' 1984 (58) AU 340, at p. 345]

B Similarly, Mr.· Justice M.H. Mclelland of the Supreme Court of New South Wales has expressed the view:

"In lieu of measures of the kinds already discussed, some per- manent, and preferably Australia-wide, machinery should be provided by legislation for the purpose of establishing an ef- C fective procedure for the determination by· a judicial tribunal · of the existence of misbehaviour or incapacity which could warrant a judge's removal from office. The design of that machinery should be such as to produce as little damage to judicial indej>endence, public confidence in the judicial sys- tem, and the authority of the courts, as is consistent with its effective operation. It should also be such as to ensure to a judge both procedural fairness and protection from public vili- fication or embarrassment pending the making of the determi- nation". (Disciplining Australian Judges, (1890) 64 AU 688 at p. 401) E Mr. Justice Mclelland has also suggested that the tribunal should be subject to the supervisory jurisdiction of, and an appeal should lie from the tribunal to, the High Court of Australia. In this context, he has stated:

"Furthermore, the protection of judicial. tenure and independ- ence which the Act of Settlement provisions were intended to effect, has i.1 the intervening period lost a great deal of its strength. In 1701, the Crown, the House of Lords and the House of Commons were three powerful but relatively inde- pendent entities. It was necessary for a judge to incur the . displeasure of all three concurrently to be at risk of removal G · under the parliamentary address procedure. The subsequent development of the party system and cabinet government (es- pecially with modem ideas of strict party discipline) has radi- cally altered the position. In modem times, the executive gov- ernment and the lower house (and frequently the upper house, where there is one) are effectively under the control of a single individual or cohesive group, so that now a judge may be at risk of removal Under the parliamentary address procedure if

SUB-COMMITIEEON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.) 37

he or she were to incur the sole displeasure of that individual or group." ~/

(Disciplining Australian Judges, (1990) 64 ALJ 388 at p. 402-3)

Sir Maurice Byers, fonner Solicitor General of the Commonwealth has also spoken in the same vein: B "A federal system involves a tension between the High Court and the Parliament and the executive. Recent years have seen this increase because interpretations of the Constitution have become party dogma. The Court's constitutional decisions are seen by many of the uninfonned and quite a few of the in- fonned as bearing upon party political questions. When, as in c the case of Mr. Justice Murphy and to a much less degree Sir Garfield Barwick, a fonner political figure, hands down a judg- ment he attracts the animus and often the abuse of some in Parliament. Section 72 of the Constitution leaves him exposed to the attack of his opponents and the often doubtful support of D his fonner friends. Whether Parliament may itself decide the judicial question of his fitness for office or "proved misbehav- iour or incapacity" is at the least doubtful. But the Court should not be exposed to this hazard. A Commission of Judges whose membership rotates is called for." (From the other side of the Bar Table: An Advocates' view of the Judiciary, (1987) 10 E University of New South Wales Law Journal 179 at p. 185). A Constitutional Commission was set up in Australia for suggesting refonns in the Commonwealth Constitution. The said Commission has recommended that provision should be made by amendment to the Com- monwealth Constitution for (a) extending the security of tenure provided by section 72 to all judges in Australia, and (b) establishing a national F judicial tribunal to determine whether facts found by that tribunal are capable of amounting t_o misbehaviour or incapacity warranting removal of a judge from office.

(Mclelland 'Disciplining Australian Judges', (1990) 64 ALJ 388, at p. 403) . G

17. In the United States, the removal of a judge of the U.S. Supreme ·Court or a Federal judge is governed by the provisions of the U.S. Consti- tution wherein Article 11(4) provides for the removal from office of the President, Vice-President and all civil officers of the United States on impeachment for, and conviction of, treason, bribery or other high crimes . H

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

A and misdemeanours. Impeachment may be voted by a simple majority of ~e members of the House of Representatives, there being a qborum on the floor and trial is then held in the Senate, which may convict by a vote of two-thirds of the members of the Senate present and voting, there being a quorum. With regard to state.judiciary, the process of removal is gov- erned by the State Constitutions. Majority of the States follow the federal B pattern and provide for impeachment as the nonnal process of removal of appointed judges. In some States, provision is made for removal by an address of the Governor to both Houses of legislature or by a joint resolu- tion of the legislatU.re. In some States, the removal power is vested in the State Supreme Courts while in some states, special courts are provided to hear removal charges. In the State of New York, the Court is known as the c Court on the judiciary. (See Henry J. Abraham: The Judicial Process. 3rd Ed. p.45).

For judicial administration at the national level, there is Judicial Conference of the United States which consists of the Chief Justices of the United States, the chief judges of each of the eleven numbered circuits and of the District of Columbia and federal circuits but also, since 1957, a district judge representative from each circuit with the exception of the federal circuit, which lacks a trial-court tier. By an Act of the Congress passed in 1932 (incorporated in Title 28 of the U.S. Code) the Judicial Conference is charged with the duty to make a comprehensive survey of the condition of business in the courts; to prepare plans for assignment of judgef to or from circuits or districts where necessary; and to submit suggestions and recommendations to the various courts to promote uni- formity of management procedures and the expeditious conduct of court business. The work of the Judicial Conference is performed in special committees which include the special committee on judicial ethics. An- other Act of Congress passed in 1939 makes provision for a judicial council for each circuit composed of circuit judges of the circuit who is empowered to make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The mandate of the Judicial Councils embraces the business of the judiciary in its institutional sense (administration of justice), such as avoiding of loss of public esteem and confidence in respect to the court system, from the actions of a judge or other person attached to the courts~ The Judicial Councils have exercised the power of review of allegations of misconduct ,. on the part of coli.rt personnel, officers and judges. In view of the in- creased number of judges, who can be removed only by the process of impeachment, Congress has enacted the Judicial Councils Refonn and Judicial Conduct and Disability Act of 1980 whereby the Judicial Coun- H cils have been explicitly empowered to receive ccmplaints about judicial

SUB-COMMITIEE ON JUDL. ACCOUNTABILITY v. U.0.1. [B.C. RAY, J.) 39

conduct opaquely described as "prejudicial to the effective and expedi- A tious administration of the business of the courts, or alleging that such a Judge or magistrate is unable to discharge all the duties of office by '(

... reason of mental or physical disability." It prescribes an elaborate judicilised procedure- for processing such complaints within the administrative sys- tern of the councils and the Judicial Conference. Should a Council deter- mine that the conduct constitutes grounds for impeachment the case may B be certified to the Judicial Conference of the United States which may take appropriate action and if impeachment is deemed warranted, the Conference is empowered to transmit the record and its determination to the House of Representatives. ~

In so far as the States are concerned, all the fifty States have central c institutions for disciplining their judges and in each a variously consti- tuted commission is organised in either a single tier or in many tiers depending on the perceived desirability of separating fact-finding from ·judgment recommendation tasks. Commission recommendations are trans- mitted to the State Supreme Court for its authoritative imprimatur, except in states where they are received by legislatures that retain judicial re- D moval power. (See Robert J.Janosik Encyclopaedia of the American'Judi- cial System, Vol.II pp.575 to 578).

18. This study of the practice prevailing in the abovementioned countries reveals that in Canada, Australia and the United States, the process of removal of a judge incorporates an investigation and inquiry into the allegations of misconduct or incapacity against a judge by a judicial agency before the institution of the formal process of removal in the legislature. England is the only exception where the entire process is in Parliament but there also views are being expressed that it should be replaced by a judicial process of investigation by a judicial tribunal before the matter is taken up by the Houses of Parliament. This is also the trend of the recommendations in the resolutions adopted by the United Nations General Assembly and international conferences of organisations of law- yers.

19. International Bar Association at its 19th Biennial Conference held at New Delhi in October 1982 adopted Minimum Standards of Judi- G -~· cial Independence. Paras 27 to 32 relating to 'Judicial Removal and Disci- ..... pline' are as under :

"27. The proceedings for discipline and removal of judges should ensure fairness to the judge, and adequate opportunity for hearing. H

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

A 28. The procedure. for discipline should be held in camera. The judge may however request that the· hearing be held in public, subject to final and reasoned disposition of this request by the Disciplinary Tribunal. Judgments in disciplinafy pro- ceedings whether held in camera or in public, may be pub- lished.

B 29. (a) The grounds for removal of judges should be fixed by law and shall be clearly defined. (b) All disciplinary action shall be based upon standards of judicial conduct promulgated by law or in established rules of court. c 30. A judge shall not be subject to removal unless, by reason of a criminal act or through gross or repeated neglect or physi- cal or mental incapacity, he has shown himself manifestly un- fit to hold the position of judge. ·

31. In systems where the power to discipline and remove judges D is vested in an institution other than the Legislature, the tribu- nal for discipline and removal of judges shall be premanent and be composed predominantly of members of the Judiciary. · 32. The head of the court may legitimately have supervisory powers to control judges on administrative matters." E . 20. The First World Conference on the lndJpendence of Justice held at Montreal on June 10, 1983 adopted a Universal Declaration on the Independence of Justice. It relates to international judges as well as na- tional judges. The following paragraphs deal with 'Discipline and Re-. . mo val' in relation to national judges: ,J.

F "2.32 A complaint against a judge shall be processed expedi- . tiously and fairly under an appropriate practice, and the judge shall have the opportunity to comment on the complaint at its initial stage. The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the judge. G~

2,33 (a) The proceedings .for judicial removal or discipline, when such are initiated, shall be held before a coUrt or a board predominantiycomposed of members of the judiciary and se- lected by the judiciary. (b) However, the power of removal may be vested in the Leg- H islature by impeachment or joint address, preferably upon a recommendation of a court or board as r~f~rred to in 2.33(a).

SUB-COMMITIEE ON JUDL. ACCOUNTABILJTY v. U.0.[ [B.C. RAY, J.] 41

1 [Explanatory Note : In countries where the legal profession A' . plays an indispensable role in maintaining the rule of law and judicial independence, it is recommended that members o(!he legal profession participate in the selecti()n of the members of the court or board, and be included as members thereof.] 2.34 All disciplinary action shall be based upon established B standards of judicial conduct 2.35 The proceedings for discipline of judges shall ensure fair- ness to the judge and the opportunity of a full hearing. 2.36 With the exception of proceedings before the Legislature, the proceedings for discipline and removal shall be held in camera. The judge may, however, request that the hearing be c ileld in public, subject to a final and reasoned disposition of · this request by the Disciplinary Tribunal. Judgments in disci- plinary proceedings, whether held in camera or in public, niay be published. 2.37 With the exception of proceedings before the Legislature D or in connection with them, the decision of a Disciplinary Tribunal shall be subject to appeal to a court. 2.38 A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour, rendering him unfit to continue in office. E 2.39 In the event that a court is abolished judges serving in this court shall not be affected, except for their transfer to another court of the same status."

21. The Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from August 26 to Septem- F ber 6, 1985 adopted the Basic 'Principles on the Independence of the Judiciary. Paragraphs 17 to 20 dealing with 'Discipline, Suspension and Removal' are as under:

"17.A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expedi- G tiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. 18, Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to H

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

A discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of ju- dicial conduct.

20. Decisions in disciplinary, suspension or removal proceed- B ings should be subject to an independent review. This princi- ple may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceed- ings." The Congress Documents were endorsed by the U.N. General As- sembly in its Resolution 40/32 on November 9, 1985 and Resolution 40/ c 146 on December 13, 1985. Resolution 40/146 dated December 13, 1985 of the General Assembly specifically welcomed the Basic Principles on the Independence of the Judiciary and invited Government "to respect them and to take them into account within the framework of their national legislation and practice" (para 2). D

22. "unlike the judges of the Superior courts in England, the judges in the colonies did not enjoy the security of tenure as guaranteed under the Act of Settlement, 1700 and they held office at the pleasure of the Crowri. (See: Terrell v. Secretary Qf State/or the Colonies and Another, 1953(2), 482). The position was not different in India till the enactment of Govem- E ment of India Act, 1935. In Clause (b) of the proviso to ..sub-Section 2 of Section 200 of the said Act which related to judges of the Federal Court, it was prescribed that "a judge may be removed from his office by order of the Go.vemor-General on the ground of misbehaviour or of infirmity of body or mind, if the Judicial Committee of the Privy Council, on refer- ence being made to them, report that the judge ought on any such ground to be removed". Similar provisions were made with regard to judges of the High Court in Section 220. It would thus appear that prior to the coming into force of the Constitution of India, it was necessary to have a determination by a judicial body about the alleged grounds of misbehav- iour or infirmity of mind and body before a judge of the Federal Court or High Court could be removed. Does the Constitution seek to alter this position in a way, as to exclude investigation and proof of misbehaviour or incapacity by ajJdicial body and to rest the power of removal includ- ing the investigation and proof of misbehaviour or incapacity in Parlia- ment alone. ·

: 23. "Basically, the process of removal or impeachment of a judge is H a political process. A learned author in "The Impeachment of the Federal

SUB-COMMITIEE ON JUVL. ACCOUNTABILITY v. U.0.1. (B.C. RAY, J.] 43

Judiciary:' [Wrisley Brown Harward Law Review 1912-1913 684 at pa~e A 698) says:

"..... Thus an impeachment in this country, though judicial in ...,. external form and ceremony. is political in spirit. It is directed against a political offence. It culminates in a political judg- ment. It imposes a political forfeiture. In every sense, say that B of administration, it is a political remedy, for the suppression of a political evil, with wholly political consequences. This results in no confusion of the political and the judicial powers. The line of demarcation is clearly discernible even ""'\ through the labyrinth of formal non-essentials under which ingenious counsel in various cases have sought to bury it. The c judgment of the High Court of Parliament upon conviction of an impeachment automatically works a forfeiture of political capacity; but this is simply an effect of the judgment, which is to be distinguished from the judgment itself... " Mauro Cappelletti in 'The Judicial Process in Comparative Perspec- D tive' [Clarendon Press-Oxford 1989 at page 731 says: j "Two main features of this accountability type can be identi- .... tied; first, the fact that account has to be given to 'political' bodies, ultimately to the legislative and/or the executive branches by means of essentially 'political', non-judicial processes; sec- E ond, and perhaps even more characteristically, the fact that account has to be given not, or not primarily, for 'legal' viola- tions, but rather for behaviour (and this might include private, . out-of-office behaviour) which is evaluated on the basis of 'political' criteria. .,J..., F Perhaps the best illustration of political accountability can be found in the systems of the common law tradition. In England, judges (like any other officials) can be impeached 'before the House of Lords, at the suit of the House of Commons', al- though this practice has fallen into desuetude; moreover, higher court judges can be 'removed from office by the Crown on an G address presented to Her Majesty by both Houses of Parlia- ment'. The idea behind this 'address' procedure is that judges -I are appointed 'during good behaviour', hence, they can be removed upon breach of the condition. Misbehaviour includes such situations as 'the case of conviction upon an indictment for any infamous offence of such a nature as to render tlie H

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

A person unfit to exercise the office', but also 'impropey exercise of the functions appertaining to the office, or non-attendance, or neglect of or refusal to perform the duties of the office'. Of course the decision of the Houses and the Crown: can only be an essentially political one, not a purely juridical decision, even though we are informed that the removal procedure is B subject to some extent 'to the rules of natural justice' ..."

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.

11. In both these matters in respect of which I have dissented from my esteemed colleagues in the Joint Select Committee, there appears to be an imprint on the provisions of the Bill of the now defunct Burmese Constitution, which provided that a 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