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

9. Although the powers of State has been distributed by the Consti- tution amongst the three limbs, that is the Legislature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas. A few illustrations will show that the courts' jurisdiction to examine matters G involving adjudication of disputes is subject to several e~(::eptions. Let us consider a case in which an individual citizen approaches the Court alleg- ing serious violation of his fundamental rights resulting in grave and irreparable injury, arising as a consequence of certain acts, and ~Jle deci- sion cf his claim is dependent on the adjudication of a dispute covered by Article 262 or Article 363. He does not have a legal remedy before the. H courts. Similarly a Member of Parliament or of a State Legislature who .

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. (SHARMA, 'J.) 81

may have a just grievance in matters covered by Article 122(2) or 212(2) A cannot knock the doors of the courts. Let us take another example where.a group of citizens residing near the border of the country are in imminent danger of a devastating attack from an enemy country in which they are sure to lose large number of lives besides their property. This can be averted only by accepting the terms offered by the enemy country, which are in their opinion reasonable and will be highly ,in the interest of the nation as a whole. The concerned authorities of the State, however, hold a different view and consider starting a war immediately as an unavoidable strategy, even in the face of imminent danger to the border area. On an application by the aggrieved citizens, the Court cannot embark upon an inquiry as to the merits and demerits of the proposed action of the State nor can it direct that the residents of the threaterted area must be shifted to some safe place before starting of the war. The examples can be multi- plied. Generally, questions involving adjudication of disputes are amena- ble to the jurisdiction of the courts, but there are exceptions, not only those covered by specific provisions of the ·constitution in express terms, but others enjoying the immunity by necessary implication arising from established jurisprudential principles involved in the Constitutional scheme. D j It was observed by this Court in Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 347 at page 415, that rigid Separation of Powers as under the American Constitution or under the Australian Constitution does not apply to our country and many powers which are strictly judicial have be~n excluded from the purview of the courts under our Constitution. E

10. Judicial power of the State in the comprehensive sense of the expression as embracing all its wings is different from the judicial power vested or intended to be veste1 in the courts by a written Constitution. The issue which arises in the present case is whether under the Constitu- tional scheme a matter relating to the removal of a Judge of the superior courts (Supreme Court or High Courts) is within the jurisdiction of the F courts or in any event of this Court. On a close examination of the Consti- tution it appears to me that a special p_attem has been adopted with respect to the removal of the members of the three organs of the State-The Executive, the ~egislature and the Judiciary--at the highest level, and this plan having been consciously included in the Constitution, has to be kept in mind in construing its provisions. The approach appears to be that when G a question of removal of a member of any of the three wings at the highest level - i.e. the President ; the Members of the Parliament and the State '• Legislatures; and the Judges of the Supreme Court and the High Courts - arises, it is left to an organ otl)er than where the problem has arisen, to be decided. H

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

A . 11. The President has to be elected by the members of an electoral college as prescribed by ,Article 54, in the manner indicated in Article 55. Since he has to exercise his functions in accordance with the advice tendered by th~ Council of Ministers, the matter relating to his impeach- ment has been entrusted by Article 61 to the Parliament. In the constitu- tion of the two Houses of the Parliament and the Legislatures of the B States, the people ;°f the country are involved more directly, through process of election and any· dispute arising therefrom is finally settled judicially. When it comes to a disqualification of a sitting member, the matter is dealt with by Article 103 or 192 as the case may be and what ·is significant for the purpose· of the present case is that instead of entrusting ...,.-- . i

12Copy pinpoint12. The scheme, as mentioned above, which accc;rding to my read- ing of the Constitution has been adopted, cannot be construed as lack of trust in the three organs of the State. There are other relevant considera- tions to be taken into account while framing and adopting a written con- stitution, which include the assurance to the people that the possibility of a subjective approach clouding the decision on an issue as sensitive as the one under consideration, has been as far eliminated as found practicable in the situation. And where this is not possible at all, it cannot be helped, and has to be reconciled by application of the doctrine of necessity, which is not attracted here. Hamilton, in "The Federalist", while discussing the position fu the United States, observed that when questions arise as to whether a person holding very high office either in the Judiciary or the Legislature or the President himself has rendered himself unfit to held the 0

office, they are of a nature which relates chiefly to the injuries done immediately to the society itself. Any proceeding for their removal will,

.··SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.O;I. [SHARMA , J.] 83

for this reason seldom fail to agitate the passions of the whole community A. and divide it into parties more or less friendly or inimical to the person concerned. The delicacy and the magnitude of a trust which so deeply '; concerns the reputation and existence of every man engaged in the admin- istrationl of public affairs speak for themselves.

13Copy pinpoint13. Mr. Sibal has further relied on Hamilton stating that "the awful B discretion which a court of impeachment must necessarily have to doom to honour or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust, to a Small number of persons." The counsel added that presumably that is the reason that the question of removal of a Judge of the superior court. has been exclusively entmsted to the Parliament arid further .in that spirit the C Act requires a large number of Members of the parliament to even give . the Notice of Motion. Quoting from 'Harvard Law Review' (1912-1913 vol.), counsel argued that judicial office is essentially a public trust, and the right of the public to revoke this trust is fundamental. In a true repub- lic no man can be born with a right to public office. Und.er such a system

• of government, office, whether elective or appointive, is in a sense a D· . political privilege. The grant of this privilege flows from the political power of·the people, and so, ultimately must it be taken away by the exercise of the political power resident in the people. After referring to the view of many Jurists of international repute Mr. Sibal again came back to "The Federalist", considering the inappropriateness of the Su- preme Court of United States of America to be entrusted with the power E of impeachent in the following words:- "It is much to be doubted whether. the members of that Tribunal at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult . a task, and it is still more to be doubted whether they would possess the degree of credit and authority, which might, on certain occasions be indis- pensable towards reconcil!ng the peop~e to their decision". I am not sure F w~ether these are the precise considerations which appealed to the fram- ers of our Constitution to adopt the Scheme as indicated earlier, but there is no doubt that the subject dealing with the removal of the. very high functionaries in three vital limbs of the State, received special treatment by the Constitution. My conclusion is further supported by the materials discussed below. .. G

14Copy pinpoint14. Learned counsel for the parties referred to the historical back- ground of the relevant provisions of the Constitution and the Act, as also to the constitutional provisions of several other countries, as ->id to the interpretation of the legal position in relation to removal ofJuages of th~ superior co~ Mr. Sibal laid great emphasis on the evidence of Mr. H

84 SUPREME COURT REPORTS [1991.J SUPP. 2 S.C.R.

A Setalvad and several other persons before the Joint Committee on the Judges (Inquiry) Bill, 1964. His argument is that the Bill was dropped as a result of ihe opinion expressed before the Joint Committee, and conse- quently another Bill was drafted which was ultimately adopted by the - Parliament as the 1968 Act. The provisions of the earlier Bill, objections a raised thereto, and the fact that the Act of 1968 was passed on subse- B quent Bill, reconstructed immediately after the decision to drop the origi- nal Bill, are all permissible aids to the interpretation of the legal position which has to be ascertained in the present cases before us. Although the learned counsel for the petitioners challenge their admissiblity, portions of the documents referred to by Mr. Sibal were attempted to be construed on 'r behalf of the petitioners as supporting their stand. In my view, it is per- c missible to take into consideration the entire background as aid to inter- pretation. The rule of construction of statutes dealing with this aspect was stated as far back as in 1584 in Heydon's case: 76 E.R. 637, and has been followed by our Court in a large number of decisions. While interpreting Article 286 of our Constitution, reliance was placed by this Court in the Bengal Immunity Company v. The State of Bihar, [1955] 2 SCR 603 at D 632 & 633, on Lord Coke's dictum in Heydon 's case and the observations.. of the Earl of-Halsbury in Eastman Photographic Material Company v .. Comptroller General of Patents L.R., [1898] A.C. 571 at p. 576 reaffirm- ing the rule in the following words:-

"My Lords, it appears to me that to construe the statute in E question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy. These three being compared I cannot doubt the conclusion". F In B. Prabhakar Rao v. State of Andhra Pradesh, [1985] Suppl. 2 SC.R 573, the observations at p. 591, quoted below, are illuminating:-

"Where internal aids are not forthcoming, we can always have recourse to external aids to discover the object of the legisla- tion. External aids are not ruled out. This is now a well settled G principle of modem statutory construction. Thus 'Enacting His- tory' is relevant: "The enacting history of an Act is the sur- rounding corpus of public knowledge relative to its introduc- tion into Parliament as a Bill, and subsequeni progress through, and ultimate passing by, Parliament. In particular it is the extrinsic material assumed to be within the contemplation of ' H Parliament when it passed ~he Act." Again "In the period im-

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. [SHARMA, J.] 85

mediately following itr. enactment, the history of how an en- A actment is understood fonns part of the contemporanea expositio, and may be held to throw light on the legislative intention. The later history may, under the doctrine that an Act is always speaking, indicate how the enactment is regarded in the light . of development from time to time". "Official statements by · the government department administering an Act, or by any B other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its provi- sions". Justice may be blind but it is not to be deaf. Judges are not to sit in sound proof rooms. -1 Committee reports, Parliamentary debates, Policy statements and public utterances of official spokesmen are of relevance in c statutory interpretation. But 'the comity, the courtsey and re- spect that ought to prevail between the two prime organs of the State, the legislature and the judiciary', require the courts to make i;killed evaluation of the extra textual material placed before it and exclude the essentially unreliable. "Nevertheless D the court, as master of its own procedure, retains a residuary right to admit·them where, in rare cases, the need to carry out the legislator's intention appears to the court so to require". With a view to correctly interpret the Act which was the subject matter of that case, the history and the succession of events including the initial lowering the age of superannuation, the agitation consequent upon it, and the agreement that followed the agitation were all taken into con- sideration. I, accordingly, propose to briefly state the relevant background of both th~ Constitutional provisions and of the Act.

15Copy pinpoint15. At the time of framing of the Constitution oflndia, the Consti- tutions of several other countries, which appeared to be helpful were examined, and a Draft was initially prepared. On the amendment moved by Sir Alladi Krishnaswamy Iyyar the relevant provision was included in the Draft in tenns similar to section 72(ii) of the Commonwealth of Aus- tralia Constitution Act (1900) except the last sentence in the following tenn$:,. G "Further provis~on may be made by the Federal Law for the procedure to be adopted in this behalf." When the matter was finally taken up by the Constituent Assembly the Debates indicate that there was a categorical rejection of the suggeS.. tion to entrust the matter to the Supreme Court or a Commi~e of a H

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

A number of sitting Judges of the Supreme Court; and while doing so, the law of the other Commonwealth countries were taken into consideration. So far the last sentence of the draft was concerned, Sir Alladi explained the p0sition by stating "that such a provision does not occur in other Constitutions, but there is a tendency to overelaborate the provisions on our side and that is the only justification for my putting in that clause." B

16Copy pinpoint16. Before further considering the Debates and the other steps in framing of the Constitution, it may be useful to appreciate the relevance and imp0rtance of the p0int which has an impact on the co:itroversial issue before us. According to the petitioners, the question relating to the

C removal of a Judge comes to the Parliament only on receipt of a report by the Committee under the Act. The Parliament or any of its Houses, not r being in the picture earlier, does not have any control over the Commit- tee, whicf! is to function purely as a statutory body, and, therefore, amena- \. ble to the jurisdiction of this Court. If this stand is correct, what was the p0sition before 1968, when there was no Act? The question is whether the Parliament did not have any power to take any action even if an inquiry in the alleged misbehaviour or incapacity of a Judge was imminently called for. In other words whether the exercise of the power under clause (4) of Article 124 by the Parliament was dependent on the enactm6nt of a law under clause (5) and until this condition was satisfied no step under clause (4) could be taken. If on the other hand the Parliament's p0wer was not subject to the enactment of a law, was it divested of this jurisdiction when it passed an Act? On what principle could the initial jurisdiction of the Parliament disappear in 1968? Since this aspect has a bearing, it was the subject matter of some discussion during the arguments of the learned· advocates.

l-7. Mr. Siba1• was emphatic in claiming that clause (5) was enabling I F in nature, and clause (4) could not be interpreted as dependent on clause (5). He relied on Mr. Setalvad's evidence before the Joint-Committee of Bill No. 5 of 1964. The stand of Mr. Shanti Bhushan, instructed by Mr. Prashant Bhushan, the Advocate-on-record on behalf of the petitioner in l the leading case Writ Petition (C)No. 491 of 1991, has been that clause (5) was merely enabling, but hl>t in the sense as stated by Mr. Setalvad in G his evidence. In the view of the latter, it is open to the Parliament either to follow the procedure laid down by an Act made under clause (5) or to ignore the same in any case and adopt any other procedure. In other words, even after the passing of the 1968 Act, the Parliament can choose • I' 1

either to proceed acoording to the said Act or to act independently ignor- ing the same. Mr. Shanti Bhushan said that this is not permissible. Once H the 1968 Act was enacted, the Parliament is bound to follow it, but earlier '

. SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. [SHARMA, J.] 87

it was free to proceed as it liked. He, however, was quite clear in his A Submission that the exercise of power under clause (4) could not be said to l ~ be conditional on the enactment of a law under clause (5), and that to interpret the provisions otherwise would lead to the extraordinary result that the Parliament was in a helpless condition for about 18 years till 1968, if a Judge was rendered unfit to continue. I agree with the learned counsel. B

18Copy pinpoint18. The other learned advocates appearing for the petitioners did not advert to this aspect pointedly. The stand of Mr. Garg is that whether or not the third respondent is removed, or whether the inquiry proceeds before the Committee or not, he must cease to function as a Judge, as his image being under a cloud, must be cleared so that the people may have c trust in the judiciary. Mr. Ram Jethmalani, the other learned counsel who appeared on behalf of the petitioner in Writ petition (C) No. 491 of 1991, was initially of the view as Mr. Shanti Bhushan on the co-relation of clause (4) and (5), but after some discussion, he reconsidered the position and took a positive stand that the exercise of power under clause (4) was dependent on a law being enacted under clause (5), and that the Parlia- D ment was ·bound to proceed in. accordance with the provisions of the Act. ~·

19Copy pinpoint19. Now coming back to the Debates, Mr. Santhanam suggested an amendment for including more details to which the answer of Sir Alladi was as follows : E "We need not be more meticulous and more elaborate than people who have tried a similar case in other jurisdictions. I challenge my friend to say whether there is any detailed provi- sion for the removal of Judges more than that in any other Constitution in the world". I'· F He requested the House to accept the general prinCiple, namely, that the President in consultation with the Supreme Legislature of this country shall have that right, and assured that, "That does not mean that the Supreme Legislature will abuse that power". He rejected the idea of mak- ing further additions to the provision relating to the framing of the law by saying, "To make a detailed provision for all these would be a noble G procedure to be adopted in any Constitution. You wilt not find it in any

' Constitution, not even in the German Constitution which is particularly detailed, not in the Dominion Constitution and not even in the Act of Settlement .and the later Acts of British Parliament which refer to the removal 6f Judges". Some members strongly suggested that the Supreme Court of India or a number of sitting Judges of the Court should be H

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

A involved in the proceeding, to which Sir Alladi had strong objection. He called upon the members, "not to provide a machinery consisting of five . or four Judges to sit in judgment over a Chief Justice of the Supreme Court. Are you really serious about (lnhancing the dignity of the Chief Justice of India ? You are. I have no doubt about it". The clause was ultimately drafted as mentioned above vesting the power in the "Supreme B Parliament" as "there must be some power of removal vested somewhere". He pointed out that the matter was not being left in the discretion of the either House to remove a Judge, but ultimate soverign power will be vested in the two Houses of the Parliament and, "that is the import of my amendment". In this background, the Article was finally included in the Draft. c Although as was clear from the statements of Sir Alladi as also the language used, the intention of the Sub-committee preparing the Draft was not to make clause (4) dependent on clause '(5), still presumably with a view to allaying any misapprehension which could have arisen by includ- ing the entire provisions in one single clause, they were divided and put in D two separate clauses and while so doing, the language was slightly changed to emphasise the limited s~ope of the law. Clause (4) does not state that the misbehaviour or incapacity of the Judge will have to be proved only in accordance with a law to be passed by the Parliament under clause (5). Clause (4) would continue to serve the purpose as it does now, without any amendment if clause (5) were to be removed from the Constitution E today. There is no indiCation of any limitation on the power of the Parlia- ment to decide the manner in which it will obtain a finding on misbehav- iour or incapacity for further action to be taken by it. Clause (5) merely enables the Parliament to enact a law for this purpose, if it so chooses. The word 'may' has been sometimes understood in the imperative· sense as 'shall', but ordinarily it indicates a choice of action and not a com- F mand. In the present context, there does not appear to be any reason to assume that it bas been used in its extraordinary meaning, It is significant to note that while fixing the tenure of a Judge in clause (2) of Article 124, proviso (b) permits the premature removal in th.e manner provided in clause (4) without mentioning clause (5) at all. The significance of the omission of clause (5) can be appreciated by referring to the language of clause 2(A) of Article 124 directing that the "age .of ~ Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide".

On an examination of all the relevant materials, I am of the view that the exercise of power under clause (4) was not made c9nditional on the enactment of a law under clause (5), and the reason for inserting

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. {SHARMA, J.] 89

clause (5) in Article 124 was, as indicated by Sir Alladi, merely for elaborating the provisions.

20Copy pinpoint20. The other provisions with reference to which the matter needs further examination are Article 121 of the Constitution and the Act of

1968. The object of Article 121- is to prevent any discussion in Parliament with respect to the conduct of a Judge of the Superior Courts, except when it cannot be avoided. The Article, accordingly, prohibits such a discussion except upon a motion for presenting an 'address' to the President for removal of a Judge. The point is that if the entire proceeding in regard to the removal of a Judge from the very initial stage is assumed to be in the House, does the bar under Article 121 get lifted at that very stage, thus frustrating the very purpose of the Article. There is a complete unanimity before us, and rightly so, that the object of Article 121 to prevent a public discussion of the conduct of a Judge is in public interest and its impor- tance cannot be diluted. Mr. Shanti Bhushan elaborated this aspect by saying that any such discussion in the House is bound to be reported through the media and will thus reach the general public and which by itself, irrespective of the final outcome of the discussion, will damage the reputation of' the Judge concerned and thereby the image of the entire judiciary; and must not, therefore, be permitted until a report against the Judge after a proper: inquiry is available. Mr. Sibal also agreed on the significance of Article 121 and relied on the views of several eminent international jurists, but ·we need not detain ourselves on this point, as there is no discordant note expressed by anyone before us. The question, however, is as to whether the object of Article 121 will be defeated, if clause (4) of Article 124 is construed as complete in itself and independ- ent of clause (5), and clause (5) be understood as merely giving an option to the Parliament to enact a law, if it so chooses; and further whether the inquiry before the Committee is within the control of the House of the Parliament so as to exclude an outside interference by any other authority, including the courts.

21Copy pinpoint21. It is true that the provisions of an Act control or determine the constitutional provisions, but where the meaning of an Article is not clear it is permissible to take the aid of other relevant materials. Besides, in the present context, where it is necessary to assess.the effect of the construe- G tion of the otht:r provisions of the Constitution and of the Act on Article 121, the Act provides useful assistance; and its importance has,~een greatly enhanced in view of the pofots urged in the arguments of the learned counsel for the parties before us. All the learned advocates for the peti- tioners as also the Attorney General are positive that the Act is a perfectly valid piece of legislation and no part of it is illegal or ultra vires. It is on H

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

A this premise that the writ petitions of the petitioners have been filed and the reliefs are prayed for. Mr. Sibal representing the respondents has half- heartedly challenged the Act, making it clear at the same time that if his interpretation of the provisions is accepted no fault can be found with the Act. Besides, the foundation of the reliefs, asked for in the writ petitions, is the Act and the inquiry thereunder and if the Act itself goes, the refer- B ence to the Committee of Inquiry itself will have to be held as non- existent in the eye of Law and the writ petitions will have to be rejected on that ground alone. We must, therefore, assume for the purpose of the present cases, that the Act is good and on that basis if the petitioners be found to be entitled to any relief, it may be granted. I am emphasising this aspect as the Act gives a complete answer to the main question as to · C whether the Committee is subject to the control of the Lok Sabha, and whether this construction of the provisions defeats the purpose of Article 121.

22Copy pinpoint22. The Judges (Inquiry) Act, 1968 is a short enactment coi;itaining only seven sections. Section l gives the title and the date of commence- D ment, Section 2 contains definitions and Section 7 deals with power to make rules. The expression "motion" which has not been defined in the A~t is significant in the scheme and naturally, therefore, has been subject of considerable discussion during the hearing of these cases. The Lok Sabha Rules framed under Article 118 of the Constitution deal with "mo- tions" in Chapter XIV. There are separate rules of procedures for conduct E of business adopted by the Raj ya Sabha. In view of the facts of this case, I propose to refer only to the Lok Sabha Rules. Section 3(1) of the Judges (Inquiry) Act, 1968 states that if a notice of"motion" is given for present- ing an address to the President for the removal of a Judge, signed, in the case of a notice given .in the Lok Sabha, by not less than l 00 members, and in the case of a notice given in the Rajya Sabha, by not less than 50 F members of the House, the Speaker or the Chairman, as the case may be, after consulting such persons as he deems fit, as also such relevant materi- als which may be available to him, either admit the "motion" or refuse to admit the same. The manner in which this section refers to "motion" in the Act for the first time without a definition or introduction clearly indicates that it is referring to that "motion" which is ordinarily under- G stood in the context of the two Houses of Parliament attracting their respective rules. Section 3 does not specify as to how and to whom this notice of "motion" is to be addressed or handed over and it is not quite clear how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken int0 account. Rule 185 states that notice of "motion" shall be given in writing addressed to the Secretary General and its· admissibil- H ity should satisfy the conditions detailed in Rule 186. Rule 187 directs the

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.I. [SHARMA, J.] 91

Speaker to examine and decide the admissibility of a "motion" or a part thereof. Rule 189 says that if the Speaker admits notice of a "motion" and no date is fixed for discussion of such "motion", it shall be noti tied in the Bulletin with the heading ".No-Day-Yet-Named Motions". It is at this stage that 1968 Act by Section 3(1) takes over the matter and asks the Speaker to take a decision for admitting this "motion" or refusing it after consulting such persons and materials as he deems fit. The conclusion is irresistible that the provisions of the Act have to be read along with some of the Lok Sabha Rules. Rules 185, 186 and 187 should be treated to be supplementary to the Act. Then comes sub-section (2) of Section 3 which is of vital importance in the present context. It says that if the "motions" referred to in sub-section (l) is admitted, the Speaker "shall keep the motion pendin~" and constitute a Committee for investigation into the allegation.s consisting of three members of whom one shall be chosen among Chief Justice and other Judges of the Supreme Court and another from among the Chief Justices of the High Court.

23Copy pinpoint23. The situs where the "motion" is pending is almost conclusive on the issue whether the House is seised of it or not. Unless the "motion" D which has to remain pending, as directed by Section 3(2) is outside the House and the Speaker while admitting it acts as a statutory authority and not qua Speaker of the Lok Sabha, as is the case of the petitioners before us, the petitioners will not have any base to build their case on. If the Speaker has. admitted the "motion" in the capacity as the Speaker and consequently, therefore, representing the House, and has constituted a E Committee, it will be entirely for him and through him the House, to pass any further order if necessary about the future conduct of the Committee, and not for this Court, for, the Committee cannot be subjected to a dual control. So the question to ask is where is the "motion" pending, which is promptly answered by the provisions in the Act, by declaring that it re- mains pending in the House. Section 6 deals with the matter from the F stage when the report of the Committee is ready and sub-section (l) says that if the report records a finding in favour of the Judge, "the motion pending in the House" shall not be proceeded With. If the report goes against the Judge, then "the motion referred to in sub-section (l) of Sec- tion 2 shall; together with a report of the Committee, be taken for consid- eration by the House or the Houses of Parliament in which it is pending". G The Act, therefore, does not leave any room for doubt that the "motion" remains pending in the House and not outside it. This is again corrobo- rated by the language used in Proviso to Section 3 (2) which deals with cases where notices of "motion" under Section 3(1) are given on the same date in both Houses of Parliament. It says that in such a situation, no Committee shall be constituted unless the "motion" has been "admitted in H

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

A both Houses" and where such "motion" has been admitted "in both Houses", the Committe shall be constituted jointly by the Speaker and the Chair- man. The rule making power dealt with in Section 7 is in the usual terms .enumerating some of the subject matters without prejudice to the general- ity of the power, and permits the Joint Committee of both Houses of Parliament to frame the rules, and accordingly, the Judges (Inquiry) Rules, B 1969 were made. Rule 2(e) of these Rules describes "motion" as motion admitted under Section 3(1) of the Act. Supplementing the provisions of Section 6(2), Rule 16(2) provides that "a copy of the motion admitted under sub-section (1) of section 3 shall be reproduced as an Annexure to such an address". Sub-rule (4) states that "the. address prepared under sub- rule (1) and the motion shall be put to vote together in each House of C Parliament". It is clear that it is not an inadvertent reference in the Act of the "motion" being pending in the House; the provisions unmistakably indicate that the Act and the Rules envisage and deal with a "motion" which is admitted in the House and remains pending there to be taken up again when the date is fixed by the Speaker on receipt of the report from the Committee. The language throughout the Act has been consistently D used on this premise and is not capable of being ingored or explained away. Nowhere in the Act or the Rules, there is any provision which can lend any support to the stand of the petitioners before us.

24Copy pinpoint24. The scope of the Act and the Rules is limited to the investiga- tion in pursuance of a "Motion" admitted by the Speaker. At the Conclu- E sion of the investigation the Committee has to send the report to the Speaker (or the Chairman as the case may be) along with a copy of the original Motion. If the finding goes against the Judge, section 6(2) of the Act directs that the Motion, the same original Motion, shall together with the report .be taken up for consideration by the House where the Motion is pending. The relevant part of section 6(2) mentions: F "the Motion referred to in sub-section (1) of section 3 shall together with the report of the Committee, be taken up for consideration by the House ..... .in which it is pending". Rule 16(4) states that the address and the Motion shall be put to vote together in each House of Parliament. What the Act and the Rules con- G template is the original Motion to be taken up for consideration ~Y the House, and if this Motion is held to have exhausted itself on admission by the Speaker, as has been urged on behalf of the petitioners, nothing re- mains on which the Act would operate. The concept of the original Mo- tion being pending in the House, to be taken up for debate and vote on the receipt of the report of the Committee, is the life and soul of the Act, and if that Motion disappears nothing remains behind to attract the Act.· This

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. [SHARMA, J.) 93

idea runs through the entire Act and the Rules, and cannot be allowed to be replaced by a substitute. The existence of a Motion pending in the House is a necessary condition for the application of the Act. Bereft (lf the same, the Act does not survive. It is, therefore, not permissible to read the Act consistent with the stand of the petitioners that the House is not seised of the Motion and does not have anything to do With the inquiry pending before the Committee, until the report is received. If clauses (4) and (5) of B Article 124 are construed as suggested on behalf of the petitioners, the Act will have to be struck down as ultra vires, or in any event inoperative and infructuous and on this ground alone the Writ Petitions are liable to be dismissed.

25 ... It has been contended that ifthe Motion is held to be pending in the House on its admission, the object of Article 121 shall be defeated. The apprehension appears to be misconceived. The mandate of the Consti- tution against discussion on the conduct of a Judge in the House is for everybody to respect, and it is the bounden duty of the Speaker to enforce it. He has to ensure that Article 121 is obeyed in tenns and spirit, and as a matter of fact there is no complaint of any misuse during the last more than 41 years. The question, qowever, is whether it will not be feasible for the Speaker to maintain the discipline, if the Motion on admission be- comes pending in the House. Before 1968 Act was passed, the motion, like any other motion, was governed by the Lok Sabha Rules, and Rule 189 enabled the Speaker to notify- it as a No-Day-Yet-Named Motion without fixing a date, and to permit the m~tter to be discussed only at the appropriate stage. After the Act, what was left within the discretion of the Speaker, has been replaced by mandatory statutory provision, directing that the motion shall remain pending in the House, to be taken up only on receipt of a finding of the Committee against the Judge. The pendeccy of the motion in.Jhe House, therefore, cannot be a ground to violate Article

26Copy pinpoint26. Mr Sibal, however, claimed that the mernbers of the House are entitled to express their opinion on the proposed endictment fro~ the very initial stage and as a part of his argument relied upon the statement of Mr. Setalvad before the Joint-Committee. Mr. Shanti Bhushan challenged the views of Mr. Setalvad on the ground that they would foul with Article G

121. I am afraid, the statements of Mr. Setalvad, referred to above, have ·not been properly appeciated by either side. The mcdified Bill, on the basis of which the 1968 Act was passed, had not been drafted by then and Mr. Setalvad was expressing his opinion on the earlier Bill, which sub- stantially vested the power of removal of a Judge in the Executive, and kept the Parliament out of the pictwe until the receipt of a report on the H

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

A alleged misbehaviour or incapacity. If that Bill had been passed, the effect would have been that the entire proceeding beginning with the initiation of the inquiry and concluding with the report would have remained com- pletely outside the House, an interpretation which is being attempted by the present petitioners before us, on the present Act too. The objection to the entrustment of the i>ower to the Executive was mainly on the ground B that the intention of the Article 124 to leave the removal of a Judge in the hands of the Parliament would be frustrated. In answer to a query of the Chairman of the Committee, Mr. Setalvad said that as a result of the provisions of the Bill (then under consideration) the Parliament would be completely kept out until a fµiding of another body was received by .the House and this would militate against the constitutional scheme. In this c background when his attention was drawn to the bar of Article 121 he replied that it was possible to prevent a premature discussion in the Parlia- ment, by the Speaker exercising his authority with discretion. He referred t~ the Lok Sabha Rules in this context and further recommended for the Speaker to be vested with larger powers. He was emphatic that the Presi- D dent should not be entrusted with the matter, even at the initial stage, and that it should be left in the hands of the Speajcer to take appropriate steps. The suggested substitution of the Speaker (and the Chairman) in place of the President was in accordance with the view that the matter is within the exclusive domain of the two Houses ~f the Parliament which could exer- cise its pov·ers through the respective representatives Speaker and the E Chairman. About Mr. Setalvad's evidence I would like to clarify the . position that I am not treating his opinion as an authority, and I have taken into account the same as one step in the history of the present legislation starting fron ~he original Bill of 1964. The report of the Joint.;. Committee (presented on 17th May, 1966) sets out the obserVations of the Committee with regard to .the principal changes proposed~in the Bill; F Paragraph 17 of the Report dealing. with clause (2) states that the expres- sion "Special Tribunal" has been substituted by "Committee" and "Speaker'' and ·"Chairman" have been brought in "with a view to ensuring that the Committee may not be subject to writ junsdiction of the Supreme Court & the High Courts". With respect to clause (3); the following observations of the Committee are relevant : ·

"The Committee are of the view that to ensure and maintain ,-the independence of the judiciary, the Executive should be · excluded from every stage of the procedure for investigation of the alleged misbehaviour or incapacity of a Judge and that the initiation of any proceeding against a Judge should be made in Parliament by a notice of a motion. The Committee

SUB-COMMITTEE ON JUDL:ACCOUNTABILITY v. V.0.1. [SHARMA ,J.) 95

also feel that no motion for presenting an address to the Presi- A · ·dent praying for the removal of a Judge should be admitted unless the notice of such motion is signed in the case of a motion in the Lok Sabha, by not less than one hundred mem- bers of that House and in the case of a motion in Raj ya Sabha, by not less than fifty members of that House. Further, the Committee are of the opinion that the Speaker or the Chairman B or both, as the case may be, may after consulting such persons as they think fit and after considering such materials, as may , be available, either admit or reject the motion and that if they admit the motion, then they should keep the motion pending and constitute a Committee consisting of three members, one each to be chosen from amongst the Chief Justice and other C Judges of the Supreme Court, Chief Justice of the High Courts and distinguished Jurists, respectively".

Paragraph 20 of the Report deals with clause (6) and the proposed changes, that were more consistent with the motion being pending in the House or Houses. Ultimately, another Bill on the lines suggested by the aforesaid D Joint-Committee was drafted and adopted. Mr. Setalvad's opinion is rel- evant as an important step in this history of legislation and can be referred to as such.

27Copy pinpoint27. The wider proposition put forward by Mr. Sibal that the House was seised of the matter so effectively as to entitle every member to · E demand a discussion in the House at any stage is, however, not fit to be accepted. This will not.only violate Article 121, but also offend the provi- sions of the 1968 Act. It is not correct to assume that if the right of the individual member to insist on immediate discussion is denied, the conse- quence will be to deprive the Parliament of the control of the motion. When the Speaker exercises authority either under the Lok Sabha Rules or · F under the.1968 Act, he acts on behalfofthe House. As soon as he ceases to be the Speaker, he is divested of all these powers. When he acts the House acts. It is 3J?.6ther matter that he may c.onsult other persons before admitting the motion, and while so doing, he may consult the members of the House also, but without permitting a discussion in the House. The consultation, which the Act permits, is private in nature, not amounting to G a public discussion while the object of Article 121 is to prevent a public debate. It may also be open to the Speaker to consult the House on a legal issue which can be answered without reference to the conduct of Judge in question, as for example, the issue (involved in the present case) whether on account of dissolution of the old House the Motion has lapsed and the Committee of Inquiry is defunct. What is prohibited is not every matter. H

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

A [Clating ·to the removal of a Judge; the bar is confined to a discussion with 'respect to the conduct of a Judge in the discharge of his duties.

28Copy pinpoint28. Mr. Shanti Bhushan strenuously eontended that such portion of the 1968 Act which direct or declare the initial motion admitted by the Speaker to remain pending in the House, should be interpreted as creating B a legal fiction limited for the purpose of ensuring. that the bar under Article 121 is not lifted prematurely. I do not see any justification for placing this construction on the Act. This issue could not arise with refer- ence to the original Bill which was ultimately dropped, as under its scheme the matter could not have reached the Parliament before the report the Special Tribunal was laid before the. Houses under the President's direc- C tion. The petitioners are trying to put an interpretation on the present Act that may tead to the same conclusion, that is, that the Parliament does not come in the picture until the receipt of the report from the Committee. This is wholly inconsistent with the Qriginal Bill not finding favour with the Parliament. But apart from this consideration, let us assume that the petitioners are right, and the matter does not reach the Parliament at all D before it is ready for consideration on the basis of the Inquiry Report. It cannot be suggested that even at that stage a discussion on the conduct of a Judge is bamed; and before this stage is reached there is no occasion for relying upon Article 121 to prevent a discussh>n. The situation, therefore, does not require the aid of any legal fiction. The consequence of accept- .· ing the argument of Mr. Shanti Bhushan will be to render the aforesaid E . provisions of the statute wholly superfluous. Also, had it been a case of a legal fiction aE wggested, it would attract the observations of Lord Asquith in East End Dwellings Co. Ltd And Finsbury Borough Council: l 952 A.C. 109, (followed in' this country in numerous cases) to the effect that if you are bidden to treat an imaginary state of affairs as real, you must also , imagine as real the consequences and incidents which, if the putative state F. of.affairs had in ~t existed, must inevitably have flowed from or accom- panied it; arid if the statUte says that you must imagine a certain state of affairs, it does not say that having done So, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affai,rs. The alternative suggestion of Mr. Shanti Bhushan that the motion, oti ·~ts 8dmission, li~vmg served its purpose, is completely ex- G bausted, and a new motion is to be moved again by a member on the receipt' of the Report from the Committee, has also no merit, for if the .motion completely exhausts itSelf and therefore does not remain in exist- ·1''1ce any further, no problem about the lifting of the bar under Article 121 arises for being solved with the help of a legal fiction.

H An attempt was made by Mr. Shanti Bhushan to derive some support

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. [SHARMA, J.] 97

from that part of clause (4) of Article 124 which requires the voting in the

- A two Houses to take place ii,. tbe same session. The provision appears .to me to be absolutely irrelevant. The clause does not require that the entite proceeding with respect to .the removal of a Judge commencing with the notiee of motion has to be within the same session. It refers only to the voting part. A close reading of the entire Act indicates that the language therein, which completely demolishes the petitioners' case, was consciously B chosen to make the House seised of the matter, and consequently it be- came necessary to include the provisions directing the motion to remain pending for the purpose of preventing a premature discussion. The Act has, thus, very successfully respected both Articles 124 and 121 in their true spirit, by neatly hannonising them. c

29Copy pinpoint29. Let us consider another argument of the petitioners that by rea- son of the expression "on the ground of proved misbehaviour or incapac- ity" occurring in clause (4) of Article 124 it should be held that until an adverse verdict of misbehaviour or incapacity by some other body is received by the House, the matter does not come within its purview. The body in contemplation of clause (4) may be an authority, completely D unass0ciated. with either House of the Parliament or the Speaker or the Chairman, and the Parliament may not have any control over the same. Such authority would be purely statutory, not amenable to the discipline of the Parliament, but subject to the Court's jurisdiction. Merely for the reason that a statute under clause (5) prescribes the procedure in this · regard by entrusting the Speaker to take a decision at the initial stage, he could not cease to be a statutory authority. In other words, he acts in his individual capacity under the power vested by the law and not in a repre- sentative caoacity. I do not find this construction of clauses (4) and (5) acceptable. This would, in substance, deny the Parliament the power to remove a Judge exclusively vested in it by Constitution. Let us ignore the present Act and consider another statute with provisions in express terms on the lines suggested by the petitioners, that is, entitling the statutory authority to act independently of the Parliament, the Speaker and the Chairman. If that could be permissible it would lead to the Parliament being redu<:ed to a helpless spectator, dependent on the statutory author- ity, to act on or to ignore a complaint. This would be in complete viola- tion of the intention of the Constitution to vest the power to remove a G Judge exclusively in the Parliament. It must, therefore, be held that the Parliament is in control of the matter from the very beginning till the end, and it acted correctly in accepting the objections of the Joint-Committee to the original Bill, aforementioned, and in passing the Act of 1968, iii the form we-find it. By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter, the H

'• 98 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A House is brought in control of the proceeding through its representative the Speaker of the Chairman. It has to be npted that "the gr.:>und of proved misbehaviour or incapacity" is neces5ary/ only for putting the matter to vote in the House under clause (4), and is not a ~ondition precedent for initiating a proceeding and taking further steps in this regard.

30Copy pinpoint30. Mr Sibal projected another extreme point of view by contending that a finding of the Committee in favour of the,Judge cannot be held to be binding on the Parliament on account of the limited· scope of a statute passed Un.der clause (5). There is no merit in this argument either. Clause (4) authorises the Parliament to act on the ground of proved misbehaviour ·~­ or incapacity and clause (5) permits it to pass a law to -lay down the ' c manner in which it may become possible to do so. It is true that the Parliament can exercise its power without formally_ framing ·a law. The House in question could in the absence of a law, decide on the procedure to be followed in a given case but it was perfectly open to it to pass an Act laying down a general code to be followed until the Act is repealed or amended. It is a well established_ practice for a large body to· entrust D investigations to a smaller body for obvious practical reasons, and such an r exercise cannot be characterised as indulging in abnegation of authority. It could have asked a Parliamentary Committee to enquire into the allega- tions or employed any other machinery for the purpose. The ratio in State of Uttar J>.radesh v. Batuk Deo Pati Tripathi and Anr., (1978] 2 SCC 102, is attracted here. In that case the Administrative Committee of the High E Court, constituted under the Rules of the Court resolved that the District Judge should be retired compulsorily from the servic~. and the Registrar of the High Court communicated the decision to the State Government and thereafter circulated to all the Judges of the High Court for their ·information. The State Government passed orders retiring the District Judge, whereupon he filed a writ petition in the High Court. The matter was heard. by a Full Bench and the majority of the Judges held that the writ petitioner could not have been compulsorily retired on the opinion recorded by the Administrative Committee, as the Full Court was not consulted. The application was allowed and a writ was accordingly issued. On appeal by the State GoveinmenLthis Court reversed the decision hold- ing that Article 235 of the ConstitUtion authorised the High Court to frame the rules for prescribing the manner in which the power vested in the High Court had to be exercised, and observed that though the control over the subordinate courts is vested constitutionally in the High Court by· the Article, it did not follow that the High Court has no power to prescribe the manner in which that control may, in practice, be 'exercised; and in fact, the very circumstance that the power of control, which comprehends matters of a wide ranging authority, vests in the entire body of Judges

SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U.0.1. [SHARMA, J.] 99

makes it imperative that the rules are framed so that the exercise of the control becomes feasible, convenient and effective. The Parliament is a far larger body than the High Court and the observations apply to it with greater force. So long as the statute enables the House to maintain its control either directly or through the Speaker, the entrustment of the investigation does not amount to abdication of power. It is a case where the Parliament has taken a decision to respect the verdict of the Commit- B tee in favour of the Judge, consistently with clause (4) and no fault can be found.

31Copy pinpoint31. It h&S been stated on behalf of the respondents that the question whether the Motion against the respondent no. 3 has lapsed as a result of the dissolution of the old House is agitating the minds of the members of the Lok Sabha and the issue is under consideration of the new Speaker. In support, he produced a copy of the proceeding of the House. If the present Speaker bolds that the Motion has lapsed, and the Committee does not have any duty to perfonn, the proceeding cannot be proceeded with any further. In reply the learned counsel for the petitioners claimed that after the matter is entrusted to the Committee, neither he nor the Parliament at this stage can undo the admission of the Motion by the earlier Speaker, or withdraw the investigation. If the petitioners are right, then what happens if a member of the Committee becomes unavailable by any reason what- soever or another member renders himself unfit to be on the Committee, I \ say by reason of his apparent at1d gross bias, against or in favour of the Judge concerned, coming to light after the fonnation of the Committee ? E The answer is that the House which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted. If on the other hand it is held that the Commit- tee is an independent statutory body not subject to the control of the House directly or through the Speaker, as the petitioners suggest, the Act F may be rendered unworkable. Besides, this would impute to the Parlia- ment to have done exactly what the Constituent Assembly refused to do by accepting Sir Alladi's impassioned appeal, referred to above in para- graph 19, not to lower the dignity of the Chief Justice oflndia by provid- ing a machinery consisting of 5 or 4 Judges to sit in appeal over him. It may be noted here that the Constitution has considered it fit to entrust the G inquiry in the alleged misbehaviour of a member of a Public Service Commission, a constitutional functionary but lower in rank than the Su- preme Court, to the Supreme Court without associating a Chief Justice of the High Court or any other person lower in rank. If the Committee is held to be functioning under the supervision and control of the Parliament, with a view to aid it for the purpose of a proceeding pending in the House, H it will be the Parliament which will be in control of the proceeding and not the Committee. ·

100 SUPREME COURT REPORTS [1991] SUP}>. 2 S.C.R.

32Copy pinpoint32. Mr Jethmalani was fervent in his exhortation to construe the Constitution and the Act in a manner which will protect the independ~nce of the judiciary from the politicians, and this, according to.him, is possi- ble only if this CoUrt comes to an affirmative conclusion on the question of justiciability. There cannot be two opfuions on the necessity of an independent and fearless judiciary in a democratic country like ours, but it does not lead to the further conclusion that the independence· of judiciary will be under a threat, unless the matter of removal of Judges, even at the highest level, is not subjected to the ultimate control of Courts. The avail- able materials unmistakably show that great care was taken by the framers of the Constitution to this aspect and the matter was examfued from every possible angle,. before adopting the scheme as indicated earlier. So far as the district courts and subordinate courts are concerned, the control has been/ vested in the High Court, but when it came to ~he High Court and Supreme Court Judges, it was considered adequate for the maintenace of their independence to adopt and enact the Constitution as we find it. I do not see any reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and I do not have any ground for suspicion that the Members of Parliament or their representatives, the Speaker and the Chairman, shall not be acting in the true spirit of the Constitutional provisions. Similarly, the task of enacting a ·1aw under clause (5) was taken up seriously by considering every rel- evant aspect, and the process took several years before the Act was passed. I do not propose to deal with this point any further beyond saying that the .. \.

E mandate of the Constitution is bindfug on all of us, and I would close by quoting the following words from Hamilton: t "If mankind were to resolve to agree in no institution of gov- ernment, until every part of it had been adjusted to the most exar~ standard of perfection, society would soon become a F general scene of anarchy, and the world a desert. Where is the standard of perfection to be found ? Who will undertake to unite the discordant opinions of a whole community, in the . same judgment of it; and to prevail upon one conceited projec- tor to renounce his infallible criterion for the fallible criterion of his more conceited neighbour? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious".

33Copy pinpoint33. It has not been suggested on behalf of the petitioners or by anybody else that it is open to the Court to examine the legality of a final decision taken by the Parliament under clause (4). Even after a verdict

SUB-COMMITTEE ON JUDL .•ACCOUNT ABILITY v. U.0.1. [SHARMA , J .] 10 l

against the Judge is returned by the Committee, the Parliament or for that matter any of the two Houses can refuse to vote in favour of the Motion for removal of a Judge, and the Court shall not have any jurisdiction to interfere in the matter. Is it conceivable, in the circumstances, that at the . intermediate stage of investigation the Court has got the power to inter- vene ? The answer is in the negative for more than one reason. If the control of the House continues on the proceeding throughout, which can be exercised through the Speaker, it cannot be presumed that the Court has .a parallel jurisdiction, which may result in issuance of contradictory directions. Besides, the Court cannot be expected to pass orders in the nature of step in aid, where the final result is beyond its jurisdiction. Any order passed or direction issued by this Court may result in merely an exercise in futility, and may cause a 'situatfon, embarassing both for the highest ju$ficial and legislative autl!_orities of the country. The Constitution cannot be attributed with such an intention. I, therefore, hold that the courts including the S_upreme Court do not have. any jurisdiction to pass any. order in relation to a proceeding for removal of a Judge of the supe- rior courts.

34Copy pinpoint34. Reference was made by the learned counsel for the parties to the D Constitutions of several other countries, but I do not considedt necessary to di~cuss them excepting the Australian Constitution as they do not ap- pear to be helpful at all. As has been mentioned earlier ~e language of Article 124 (4) is similar to section 72(ii) of the Commonwealth of Australia Constitution Act (1900), except ·with this difference that the Australian Constitution Act does not specifically provide for any law to be made for regulating the procedure and investigation. However, the consti~ tutional. and the legal position in Austraila is not helpful to resolve the present dispute before us, as the Commonwealth of Australia Constitution Act (1900) has adopted rigid Separation of Powers between the Executive, Legislature and Judiciary (as has been observed by this Court on many occasions including at p~ge 415 in Smt. Indira Gandhi \r. Raj Narain, [1976] 2 SCR 347, referred to above in paragraph 9. Reference has been made by P.H. Lane inbis commentary on the Australian Constitution to the proceedings which were initiated for removal of Mr. Justice Murphy under section 72 (ii) of the Constitution Act: On account of sharp differ- ence am~ngst .the members of the Select Committee of the Senate ap- pointed to inquire into the matter and a further failure to resolve the situation by establishing a second Committee and in view of certain other facts an ad ho.c legislation was passed under the name of Parliamentary Commission oflnquiry Act, 1986. Under this Act further steps were being taken when Mr. Justice Murphy moved the High Court of Austraila for an order of injunction challenging the validity of the Act and alleging that one of the members of the Commission constituted under the Act (a

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

A retired Judge) was disqualified on account of bias. The application was dismissed on merits without adverting to the question of justiciability. This decision, to my mind, is o( no help to the petitioners before us, mainly on account of the difference in the Constitutional scheme of the two countries with respect to the Separation of Powers. The judicial pow- ers there have been exclusively vested in the courts by section 71 ofJhe B Constitution Act of 1900. Lane has at page 372 of his book opined that section 72 (ii) may be non-justiciable, since it seems to place the exercise under the section in Parliament itself. He, however, further proceeds to say that the Parliament could seek the High Court's help, for example, in the peripheral matter of the meaning of misbehaviour or incapacity in section 72(ii). He has also referred to certain other provisions of the c Constitution Act, and analysed the roles of Parliament and Court with his comments. I do riot consider it necessary to proceed further beyond saying \ that Mr. Justice Murphy's case does not provide any aid in deciding the issue in the cases before us. Although our Constitution was made after examining the Constitutions of many other countries, it .has adopted a pattern of its own. The learned counsel also placed a large number of decisions; both Indian and foreign and since I have not found them rel- evant, I have refrained from discussing them. None of the cases in which this Court has either interfered with the decision of the House or has a refused to do so, related to proceeding for removal of a Judge, and are clearly distinguishable in view of my opinion expressed above. I am also - not dealing with the other points urged by Mr. Sibal, as I agree with him on the main issue of justiciability. I am avoiding to express any opinion on the controversy whether the Motion lapsed or not on the dissolution of the earlier House, as the issue is for the. Lok Sabha to decide.

35Copy pinpoint35. In view of the above findings this Court cannotpass any order whether permanent or temporary on the prayer that the respondent No. 3 should not be allowed to exercise his judicial powers. In the result all the writ petitions are dismissed. The prayer for transfer of Writ Petition No. 1061 of 1991 in 1'ransfer Petition No. 278 of 1991 is allowed and that Writ Petition is also dismissed. There will be no order as to costs.

·N.P.V. Petitions disposed of.