SMT. SAROJINI RAMASW AMI v. UNION OF INDIA AND ANR.

A

AUGUST 27, 1992

B

Judges (Inquiry) Act, 1968: Sections 3(2), 4(1), (2)(3) and 6(1)(2)(3).

C Judges (Inquiry) Rules, 1969: Rules 6, 8, 9, 10, 11.

Supreme Court Judge-Alleged misbehaviour, Financial improprities and irregularities-Enquiry Committee Report of-Submission to Speake,._ Judge concemed whether entitled to copy of Report before submission to Speake/<-fudge concemed-Whether entitled to opportunity of hearing before D Parliament-Report of Inquiry Committee-Finding of 'Not guilty'- Effect of-Finding of 'guilty'-Whether open to judicial review-Report of Enquiry Committee-Whether can be equated with sanction given under Section 197 Cr.P.C.-Term of Enquiry Committee-Whether can be extended by Court.

Constitution of India, 1950: E Articles 121, 124(4)(5).

Supreme Court Judge-Process for removal-Order of removal passed by President-Judicial review of-whether excluded. F Article 136-Tribunal-Test to determine-What is-Inquiry Committee constituted under Judges (Inquiry) Act, 1968-Whether Tribunal.

Judicial Review-Nature and scope of

G Administrative Law-Natural Justice-Violation of-Depends on facts of each case-Violation cannot be examined in isolation.

Code of Criminal Procedure, 1973: Section 197.

Report of Inquiry Committee constituted under Judges (Inquiry) Act, H 1968-Whether can be equated with sanction given under Section 197 Cr.P.C. 108

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Certain allegations of financial improprieties and irregularities were A made against Mr. Justice V. Ramaswami in his capacity as the Chief Justice of High Court of Punjab & Haryana prior to bis appointment as a Judge of the Supreme Court of India by 108 members of the Ninth Lok Sabha by notice of motion for presenting an ail.dress to the President for his removal from office. The Speaker of the Ninth Lok Sabha admitted the motion and constituted a Committee consisting of a sitting Jndge of this B Court, Chief Justice of the High Court of Bombay and a retired Judge of this Court as a distinguished jurist in terms of Section 3(2) of the Judges (Inquiry) Act, 1968. However, on dissolution of the Ninth Lok Sabha, the Union Government abstained from acting in aid of the decision of the Speaker since it was of the view that the notice of motion as well as the C decision of the Speaker to admit the motion and constitnte an Inquiry Committee under the provisions of the Act bad lapsed with the dissolntion of the Lok Sabha. . . A body called the "Sub-Committee on Judicial Accountability" repre- D sented by a Senior Advocate of this Court as its Convener and the Supreme Conrt Bar Association filed Writ Petitions in this Court under Article 32 of the Constitution, praying inter alia for a direction to the Union of India to take immediate steps to enable the lnqniry Committee to discharge its functions nnder the Act. By its decision, in Sub-Committee on judicial Accountability v. Union of India & Ors., [1991] 4 S.C.C. 699, the majority E held (i) that a motion under Section 3(2) of the Act does not lapse upon the dissolntion of the House; (ii) that the process for removal of a Judge of the Snpreme Court comprises of two stages. The first stage is of investigation and proof in accordance with the Jndges (Inquiry) Act, 1968 enacted under Article 124(5) of the Constitution by the Committee con- F stituted by the Speaker acting as a statutory authority under the Act and the second stage commences after allegations of misbehaviour are found proved. In the second stage when motion is moved, bar under Article 121 o" discussion in Parliament in respect of the conduct of the Jndge is lifted and the process envisaged under Article 124(4) is attracted. The first stage is snbject to judicial review, bnt the second stage is not subject to judicial G review, ltthe process involved being parliamentary process.

Subsequent to the decisions of the Constitution Bench, the Commit- tee constituted by the Speaker under the Act proceeded to inquire into the allegations made against the Judge. On May 10, 1992, the learned Judge H

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I. A addressed a letter to the Presiding Officer of lhe Committee requesting him to supply a copy of its report before it wa~ forwarded to the Speaker and also. requested him to withhold the report! by giving reasonable time to peruse and to take appropriate action there11n. The Inqu!ry Committee replied that since the Supreme Court was s<!ized of the matter in the connected case (Writ Petitior 149of1992) the I.committee would abide by B any directions that may be given by the Court.;Thereafter, the wife of the Judge filed a Writ Peitition in this Court - whi.,h was treated in substance as filed by the Judge himself - for a direction tn the Committee to supply a copy of the Report of the Committee to the Judge and simultaneously to I withhold forwarding of the said Report to the !Speaker of the Lok Sabha C to enable the Judge to seek redress in a court of law, if required or necessary, against the findings of the Committte in its Report.

It was contended on behalf of the petition~r that (i) as a logical corol- lary of the decision in Sub-Committee on Judici~l Accountability's case, the Jndge is entitled to be supplied a copy of the Report of the Committee before submission of the Report to the Speaker; (ii) 001~ the Parliamentary part of the process begins and the Speaker moves the motion in th.e House along with the address to the President for the removal of the Judge, the Judge would be deprived of his constitutional right ofs\,.,kingjndicial review of the statutory part of the process even though thal is the foundation for the subsequent Parliamentary part, i.e., Judicial Ref iew to test the legality of the Committee's findings is available either 'now' before the commencement of the Parliamentary Process on submission of t~~ I Report to the Speaker or never; (iii) non-supply of Report to the Judg~ before submission to the Hon'ble Speaker would not only defeat the consbtutional right orthe Judge F butwouldalsoviolat~ princfples ofNaturalJusdce; (iv) the order of removal made by the President under Article 124(4) being immune from Judicial Review, the Judge must have the opportunity /of seeking Judicial Review before commencement of the Parliamentary part of the process for which he should be supplied a copy of the Report before !submission to the Speaker; and (v) that the Inquiry Committee is a Tribun;ll for the purposes of Article G 136 of the Constitution and since an appeal wo~ld lie in this Court against the findings of the said Committee, the Report if the Committee is required to be furnished to the Jndge concerned.

On behalf of the Inquiry Committee it 1was contended that (i) on H completion of' enquiry culminating in the reco~ding of the findings in the

SMT. S. RAMASWAMI v. U.0.1. 111

Report, the principle of comity between the constitutional authorities re- A quire that the Courts must not interdict the process contemplated by the Act once the findings have been recorded in the report; (ii) the Judge is entitled to opportunity during the Parliamentary process to assail the adverse find- ings and there are no reasons to assume that the Parliament would not give such an opportunity or that it would not properly consider the objections to the findings raised by the .Judge before voting on the motion; and (iii) the B Jndicial Review of the order of removal may not be excluded.

The Attorney General contended (i) that the Committee is in the naturt of a subordinate authority to the Speaker. The Report is like granting of sanction for prosecution of a public servant as contemplated under Section 197 of the Code of Criminal procedure, 1973. Unless the validity of the sanction is questioned at the earliest stage the accused is precluded to assail it at a later stage. On the same analogy the learned Judge is entitled to challenge the adverse findings, if any, recorded in the Report by the Committee before the same is taken for consideration by the Parliament. This can only be done when such Report is made available to the learned Judge for seeking Judicial Review; (ii) the Parliamentary process of removal is not amenable to judicial review. Therefore, before any motion is laid on the floor of each House of Parliament, the learned Judge is entitled to the supply of a copy of the Report and to seek judicial review thereof; and (iii) the right of the Iearnei;I Judge to challenge the order of removal made by the President under Article 124(4) being doubt- ful, it is appropriate that in order to avoid defeating his right of seeking judicial review in case of an adverse finding, if any, the learned Judge should be furnished a copy of the Report of the Committee at this stage before it is submitted to the Speaker under Section 4(2) of the Act. F Disposing the petition, this Court,

1. It cannot be said that the only logical corollary of the decision in G Sub-Committee on Judicial Accountability Is that the concerned Judge has a right to obtain a copy of the Report of the Inquiry Committee before commencement of the parliamentary process to enable him to avail the remedy of judicial review in case the Committee has recorded a finding of 'guilty' agianst the learned Judge. [190 B-C] H

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A 1.1. The absence of any obligation in the Committee to furnish a copy of its report to the concerned Judge before submitting it to the Speaker/Chairman under Section 4(2) of the Act is in consonance with the law declared in Sub-Committee on Judicial Accountability that the process for removal of the Judge is statutory 'ill the laying of the Report by the B Speaker before the Parliament on its submission to him by the Committee in accordance with sub-sections (2) and (3) of Section 4 of the Act. (148-F]

Sub-Committee on Judicial Accountability v. Union of India and Ors., (1991] 4 S.C.C. 699, referred to.

C 1.2. If the supply of a copy of the Report to the Judge by the Committee before its submission to the Speaker was contemplated by the law enacted under Article 124(5) that area would not be left blank in the provisions made in the law while providing elaborately for submission of the report together with its manner, including the number of copies, in D Section 4 of the Act and Rule 9 framed thereunder. The absence of such a provision in this law is a deliberate and not an inadvertent omission to emphasise absence of that requirement which also matches the constitu- tional scheme. [169 D-E]

2. Every Judge of the Supreme Court and the High Courts on his appointment is Irremovable from office during his tenure except in the manner provided in clauses (4) and (5) of Article 124 of the Constitution of India. The law made by the Parliament under Article 124(5), namely, the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969 framed thereunder, is to be read along with Article 124(4) to find out the constitutional scheme adopted in India for the removal of a Judge of the Supreme Court or a High Court. The law so enacted under Article 124(5) provides that any accusation made against a sitting Judge to enable initiation of the process of his removal from office has to be only by not less than the minimum number of Members of Parliament specified in the Act, all other methods being excluded. On initation of the process in the prescribed manner, the Speaker/Chairman is to decide whether the ac- cusation requires investigation. If he chooses not to act on the accusation made in the form of motion by the specified minimum number of Member of Parliament, the matter ends there. On the other hand, if the Speaker/Chairman, on a consideration of the materials available and after H €onsulting such persons as he thinks fit, forms the opinion that a prima

SMT. S. RAMASWAMI v. U.0.1. 113 facie case for investigation Into the accusation against the Judge Is made out, he constitutes a Committee of Judicial functionaries in accordance with Section 3(2) of the Act. [188 E·H, 189-A)

•. 3. The scheme embodied in Section 6 of the Act read with Rule 9 is that where the finding of the Inquiry Committee is of 'not guilty' whether unanimous or by majority of the members of the Inquiry Committee, the entire process of removal of the Judge terminates with that finding giving the quietus to the accusation of misbehaviour by the Judge scotching all rumours and the motion is not even required to be taken up for consldera· tion by the Parliament so that the parliamentary part of the process does not commence in the absence of the condition precedent of a finding of C 'quilty' by the Inquiry Committee essential for its commencement. Jn such a situation, when the finding of 'not guilty' is by majority of-the members only, the contrary finding of guilty by the third member is not even to be disclosed to any authority or person including the l;'arliament since all debate on the conduct of the concerned Judge based on those allegations D must end. The provision in Rule 9(6) for non-disclosure of the dissenting opinion of 'guilty' even to the Parliament further indicates that no one including the Members of Parliament who gave the notice of motion under Section 3(1) of the Act to Initiate the process of removal have any right in that situation to even scrutinise much less assail the finding of 'not guilty' recorded by the Inquiry Committee even by majority. Section 6(1) of the E Act read with Rule 9(6) of the Rules is a clear pointer in this direction. [146 E·H, 148 A·Bl

3.1. The provisions in the Act and the Rules are a strong indication that the constitutional scheme for the removal of a Judge in accordance with clauses (4) and (5) of Article 124 of.the Constitution and the par· liamentary law enacted under Article 124(5) shuts out all scrutiny even by judicial review where the Inquiry Committe< unanimously or even by majority makes a finding that the Judge is 'not guilty' of any misbehaviour. Obviously, the concerned Judge cannot be aggrieved by a finding of 'not guilty' in his favour and in case such finding Is not unanimous but by majority, non-disclosure of the dissenting opinion of guilty, as required by Rules 9(6) of the Rules, even to the Parliament, prevents any possible damage to the reputation of the concerned Judge from the dissenting opinion and, therefore, there can be no legitimate grievance to him from the undisclosed dissenting opinion. For this reason, the concerned Judge H

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A can have no grievance agianst exclusion of judicial review in that situation. This being the situation in the event of the Committee's Report containing a finding of 'not guilty', there can be no requirement at least in that situation for the Committee to furnish a copy of its report to the concerned Judge before submitting the same to the Speaker/Chairman under Section 4(2) of the Act. [147 F-H, 148-D] B 3.2. If there be several charges framed against the judge and in respect of some of them the finding is that the Judge '.s 'guilty' while the finding on the other charges is that the Judge is 'not guilty', then the consequences which would ensue in respect of the finding on each charge would depend on its nature. In other words, in respect of a charge of which the Judge is found 'not guilty', the consequences would be those in accord- ance with Section 6(1) of the Act and Rule 9(6) of the Rules and the process of removal relating to those charges would terminate in the manner ind.icated without being subject to any further scrutiny or judicial review as in the case of a finding of 'not guilty' in respect of all the charges levelled against a Judge. [149 B·D]

4. When the finding in the Committee's Report is that the Judge is 'guilty' of any misbehavionr, then Section 6(2) of the Act mandates that the motion for removal of the Judge shall be taken np for consideration by the House together with the Report of the Committee submitted in accordance with Section 4(2) and laid before it under Section 4(3) of the Act. A full consideration on merits inclnding correctness of the finding of 'guilty' made by the Inquiry Committee on the basis of the materials before the Parliament is contemplated during the parliamentary part of the process of removal of a Judge. [156 D-E, 157H, 158-A]

4.1. There is no reason why in the Constitntional scheme adopted in India, the concerned Judge should not be given an opportunity when the Parliament takes up for consideration the motion for his removal on a finding of 'guilty' being made by the Committee constituted under the G Judges (Inquiry) Act, 1968. Such an opportunity is consistent with and is also the requirement of fairness, an essential attribute of procedure for any decision having civil consequences. The precise details of the manner in which such an opportunity is to be given to the concerned Judge may be for the Speaker/Chairman and the Parliament (o decide, but there is H clear mandate in our constitutional scheme that the procedure adopted for this purpose should be such as would ensure availability to each House A of Parliament of the concerned Judge's point of view and comments, if any, on the linding of 'guilty' made in the Committee's report when it takes up for consideration the motion for removal of the Judge, such procedure ensuring fairness to the concerned Judge and being in keeping with the dignity of the high office held by the learned Judge. (162 F·G, 160 A-BJ B 4.2. It is, therefore, implicit in the constitutional scheme for the removal of a Judge provided in Article 124(4) and the law enacted under Article 124(5) that the Parliament should also have the benelit of the point of view and the comments, if any, of the concerned Judge on the linding of 'guilty' against him recorded by the Inquiry Committee in its Report when the Parliament takes up the motion for removal of the Judge for considera- tion along with the Inquiry Committee's Report and the other relevant materials made available to it. To enable performance of this exercise and to effectuate the concerned Judge's right to show cause against the linding of 'guilty' made in the report at this stage to the Parliament, it is clear obligation of the Speaker/Chairman to supply a copy of the Inquiry Committee's Report to the concerned Judge while causing it to be laid before the Parliament under Section 4(3) 'as soon as may be' on its submission under Section 4(2). This view also has the advantage of provid· ing the concerned Judge an opportunity during the parlia.mentary part of the process or removal to place his point of view and offer the comments, if any, on the linding of 'guilty' against him made by the Inquiry Committee for consideration by the Parliament before voting on tl;e motion for removal of the Judge. (158 F·H, 159·A]

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4.3. If the constitutional scheme, envisages and provides for an opportunity to the concerned Judge to show cause against his removal from office on the linding of 'guilty' recorded by the Inquiry Committee being placed before the Parliament for its consideration and the Parlia· ment is required to take it into account before it decides to accept the linding of 'guilty' and act on it by adopting the motion of removal by the requisite majority or not to adopt the motion which would terminate the proceedings for removal, it would indicate that the opportunity of this kind in the scheme to show cause is against the inchoate linding of guilty prior to the stage of making the linal decision which alone is required to be subject to judicial review. The clear intendment is that in such a situation it is the Parliament which should lirst consider the question H

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A without there being any need for judicial review at that stage. This is so because the misbehaviour is deemed to be proved, according to Section 6(3) of the Act, only when the Parliament adopts the motion in the manner prescribed. (163 A-DJ

B The remedy of judicial review to the concerned Judge is available only when his misbehaviour is 'deemed to be proved' in law and not against the inchoate finding of'guilty' made by the Inquiry Committee which may or may not be acted upon by the Parliament. Another reason to snpport this view is that the proceedings for removal of a Judge are required to be concluded at the earliest In public interest and, therefore, no interdiction of the process is C contemplated at the stage of an inchoate finding of 'guilty' by the Inquiry Committee. An opportunity to the concerned Judge at the stage also to show cause against that inchoate finding of 'guilty' fully safegaards his interest without the need for judicial review at that stage, the scope for Parliament's scrutiny of the Committee's finding of gulity being very wide. (163 D-F) D 4.4. The contrary view would result in a serious anomaly. If the finding of 'guilty' made by the Committee by Itself amounts to 'proved misbehaviour' for the purpose of Article U4(4), anomalous situation would arise if the Parliament does not adopt the motion of removal thereafter. In that situation the process would end and, notwithstanding a E finding of 'proved misbehaviour', the Judge cannot be removed from office. Such a piquant situation at the end of the process of removal In spite of a finding of 'proved misbehaviour' could never by contemplated In the scheme and, therefore, a construction which can lead to that absnrdity must be eschewed. (164 D-E) F 4.S. Even though judicial review of the finding of 'guilty' made by the Inquiry Committee may be permissible on limited grounds pertaining only to legality, yet the power of the Parliament would not be so limited while considering the motion for removal inasmuch as the Parliament is em- G powered to not adopt the motion in spite of the finding of 'guilty' made by the Committee on a consideration of the entire material before It which enables it to go even into the probative value of the material on which the finding is based and to decide the desirability of adopting the motion in a given case. The Parliament decides by voting on the motion and is not required to give any reasons for its decision if it chooses not to adopt the H motion. (163 G-H, 164-A)

SMT. S. RAMASWAMI v. U.0.1. 117

There is no reason to assume that the .Parliament would not dis- A charge its obligation in the constitutional scheme with as much respon- sibility and seriousness as is expected from any other organ of the State or authority involved in the process of remov3l of a Judge. The n;dure and extent of power entrusted to the Parliament In this process is a relevant factor to Indicate exclusion of judicial review till after the making of the B 1 order ofremoval by the President in case the Parliament adopts the motion by the requisite majority. The finding of 'guilty' made by the Committee is only a recommendation to the Parliament to commence its process and to act on that finding which, at best, is tentative and inchoate at the stage of submission of the Report under Section 4 of the Act. [164 A-Cl c 4.6. This being so, the remedy of judicial review to the concerned Judge has to be only after the stage of bis 'proved misbehaviour' is reached on adoption of the motion by the Parliament which leads inevitably to the order of removal made by the President in accordance with Article 124(4). Resort to judicial review by the concerned Judge between the time of D conclusion of the inquiry by the Committee and making of the order of removal by the President would be premature and is unwarranted in the constitutional scheme. This construction while protecting the interest of the concerned Judge gives full effect and due importance to the role of all the high dignitaries involved In the process of removal, there being no reason to doubt that each one of them would be fully alive to the sig- .E nilicance of bis role and. extent of obligation under the constitutional scheme. If, however, any illegality occurs even then, the provision for judicial review at the end of the process permits Its correction without interdicting the process in between. [164 F-H, 165-A] F S. Judicial review is the exercise of the courts' inherent power to determine legality of an action and award suitable relief and thereby uphold the rule of law. No further statutory authority is needed for the exercise of this power which is granted by the Constitution of India to the superior courts. [173,F] G S.1. The modem trend is to accept judicial review in certain situa- tions within circumscribed limits even where the entire process is political since the 'political question doctrine', permits this course. Jn such cases where the entire process is political, judicial review to the extent permis- sible on conclusion of the political process is not doubted. There appears H

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A to be no reason in principle why judicial review at the end of the entire process of removal of a Judge in India, where it is a composite process of which the political process Is only a part, can be excluded after conclusion of the entire process including the political process. [184 C-E)

Adam Clayton Powell v. John W. McConnack, 23 L.Ed. 2d. 491 : 395 B US 486, referred to. \

5.2. Mere parliamentary approval of an action or even a report by an outside authority when without such approval, the action or report is ineffective by itself, does not have the effect of excluding judicial review on C the permissible grounds. [173-B)

5.3. There Is no embargo, in principle or authority, to infer that in the constitutional scheme adopted in India, judicial review of the finding of guilty recorded by the Inquiry Committee during the statutory part of the process is impermissible after that tentative finding matures into D 'proved misbehaviour' culminating in the order of removal. The argument of 'now or never' does not appeal to the Court and what appears more consistent in the constitutional scheme is that judicial review on permis· sible grounds is available not now but at the end of the process after the order of removal, if that stage is reached. (170 D-E) E 5.4. There is no reason to take the view that an order of removal of a Judge made by the President of India under Article 124(4) of the Constitution is immune from jvdicial review on permissible grounds to examine the legality of the finding of guilty made by the Inquiry Committee during the statutory proces$ for removal which is the condition precedent F for commencement of the parliamentary process culminating in the making of order of removal by the ~sident. Judicial Review of the finding of guilty in the Report of the Inquiry Committee constituted under the Judges (Inquiry) Act, 1968 would be permissible on the available grounds of judicial scrutiny after the making of an order of removal by the Presi- G dent pursuant to adoption of the motion for removal by the Parliament based on the Inquiry Committee's Report. (173 C·G)

S.S. Availability of judicial review to the learned Judge, in case the need arises as a result of the order of removal made by the President, after the making of such an order cannot be doubted in view of the wide powers H of the Supreme Court of India. [173-E]

SMT.·S. RAMASWAMI v. U.0.1. 119

5.6. This conclusion adequately protects the right of the concerned A Judge, ensures expeditious conclusion of the process once it is commenced in the manner prescribed and accords with the view that the scheme is 'a judicious blend of the political and judicial processes for the removal of Jndges, it ensures preservation of the right, interest and dignity of the learned Judge and is commensurate with the dignity of all the institutions B and functionaries involved in the process. It also excludes the needless meddling in the process by busy bodies confining the participation in it to the Members of Parliament, the Speaker/Chairman and the Inquiry Com· mittee comprising of high judicial functionaries apart from the concerned Judge, if the allegations permitted to be made only in the prescribed manner justify an inquiry into the conduct of the Judge. [170.E·G] C

Keshuv Singh, [1965] 1 S.C.R. 413; Sub-Committee on Judicial Ac- countability v. Union of India & Ors., [1991] 4 S.C.C. 699; S.P. Gupta v. Union of India, [1981] Supp. S.C.C. 87; State of Rajasthan v. Union of India, [1978] 1 S.C.R. 1 and Union of India & Anr. v. Raghubir Singh (dead) by D Lrs. etc., [1989] 2 S.C.C. 754, referred to.

Regina v. Boundary Commission for England, (1983) 1 Q.B. 600, C.A.; Nottinghamshire Country Council and Secretary of State for the Environment, City of Bradfor Metropolitan Council and Secretary of State for the Environ- ment, (1986) 1 A.C. 240; Regina v. Her Majesty's Treasury, Ex parte Smedley, E (1986) 1 Q.B. 657, C.A.;Adam Clayton Powell v.John W. McCormack 23 L. Ed. 2d. 491; SallehAbas v.Abdul Hamid, 1988 L.R.C. 25; Bakerv. Ca", 369 U.S. 186: 7 L Ed. 2d. 663 (1962) and Powell v. McCormack, 395 US 486;23 L Ed. 2d. 491 (1969), referred to.

Halsted L. Ritter v. The United States, 84 C. Cls. 293, distinguished. F H.W.R. Wade, Administrative Law, 6th Edition; Reoul Berger, Im- peachment : The Constitutional Problems (1973) Willis, Constitutional Law of the United States (1936), referred to. G Deniel A. Rezneck, "Is Judicial Review of Impeachment Coming", 60 American Bar Association Journal 681 (1974); Miacbel J. Gerhadt, "The Constitutional Limits to impeachment and its alternatives" 68 Texas Law Review, 1 (1989), referred to.

6. One of the considerations which has weighed with the Court for H

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A holding a statutory authority to be a tribunal under Article 136 is finality or conclusiveness and the binding nature of the determination by such authority. [166-H, 167-A]

6.1. The determination by the Committee that the Judge is 'not gnilty' of misbehaviour, is alone final as it terminates the proceeding. However, B in that case there is no scope for judicial review of the finding of 'not qullty' made by the Committee. This aspect negates the character of tribunal for this reason alone. In the other situation when the Committee's determina· lion is that the Judge is 'guilty' of misbehaviour, that finding Is inchoate which may or may not be acted upon by the Parliament. Finding of 'gnllty' C made by the Committee being subject to acceptance by the Parliament, Is not final and is, therefore, not conclusive. If the Committee bas to be regarded as a tribunal under Article 136, it would serve no useful purpose and would also lead to the anamolous result that the Committee is to be treated as a tribunal if it finds that the Judge Is not gnilty of any mis· behaviour but it is not to be treated as a tribunal if it finds that the Judge D is guilty ofany misbehaviour. The character of the Committee as a tribnnal cannot depend on the findings that are ultimately recorded by it. (168 C·F]

6.2. In effect, the Report of the Inquiry Committee containing a finding that the Judge is gnilty of misbehaviour is in the nature of recom· E mendation for bis removal which may or may not be acted upon by the Parliament while considering the motion for removal according to the procedure laid down in the constitution fer removal of a superior Judge, which is the only manner of curtailing the fixed tenure of the Judge. The misbehaviour of the Judge is 'deemed to be proved' according to Section 6(3) of the Act only when the motion is adopted by the Parliament and not F otherwise. The finding of 'gnilty' made by the Committee does not by itself bring about that result. An essential test of the determinative nature of the finding, an attribute of the tribunal is lacking. The test of the absence of any dispute or lis between two adversaries also negatives the contention that the Committee is a tribunal for the purpose Article 136. G (169 A·B, 168 G·H] 6.3. Keeping in view the provisions of the Act and the Rules and specially the fact that certain finding recorded by a member of the Com· mittee is not required to be disclosed in the given circumstances and the finding recorded by the Committee holding that the Judge is gnilty of any H misbehaviour is not final and conclusive, it is legally not permissible to

SMT. S. RAMASWAMI v. U.0.1. 121 hold that the Committee is a tribunal under Article 136 of the Constltu- A tion. [169 F-G)

1. There is no provision in the Act or the Rules for the supply of copy to concerned Judge by the Inquiry Committee before sending the Report to the Speaker for laying down the Report before the Parliament. In the scheme of the Act and the Rules and the Constitution, no direction can be given to the Inquiry Committee to furnish the Report to the Judge for seeking judicial review at the stage when the investigation is already complete. [199-D, 205-E)

2. The right of judicial review is not a right emerging under any principle of natural justice. It cannot be equated with the rule of audi alteram partem. The right of judicial review is itself a right available only on limited permissible grounds. The right of seeking a judicial review depends on the facts of each individual case and will depend on several factors which would be necessary to be examined before the particular order or action is put under challenge. There cannot be any demand of judicial review as an abstract proposition oflaw on the premise of violation of any principle of natural justice. No direction as such can be sought on the basis that if the copy orthe Report Is not supplied before sending the same to the Speaker, the learned Judge would be left with no remedy of judicial review at a later stage. There is neither any violation of any principle of natural justice nor violation of any constitutional or statutory provision in not affording a copy of the Inquiry Report before sending the same to the Speaker. (203 B-El

2.1. This Court cannot give any mandamus to any authority unless H

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A it can be shown that such authority is acting in violation of any provisions of the statute or constitutional obligation. Thus, even if it may be con- sidered that the Committee is performing a statutory function amenable to the jurisdiction of this Court in judicial review, it must be sho"4 that it is acting in violation of any rule or law. In the present case the Inquiry Committee is rather performing its legal duty and fulfilling the statutory obligation of sending the report to the Speaker and as such no mandamus or direction can be given to delay or put any hindrance in such lawful action on the part of the Committee. [203 F-G]

3. The right of the hearing to the concerned Judge in the present scheme of law can only arise before two authorities. One before the Inqniry Committee and the other before the Parliament. So far as the opportunity of hearing before the Inqruiry Committee is concerned, the provisions clearly show that fnll opportunity of hearing is given to the Judge in respect of contesting the charges framed against him as well as cross- examining any witness and leading any evidence in defence. D [201-E, 202 A-Bl 3.1. It is no doubt correct that Parliament is free to adopt its own procednre while considering the motion, bnt that alone cannot be con· sidered as a ground for seeking judicial review against the report of the E Committee. The qnestion of not giving any opportunity of hearing before any action is taken against the learned Judge by the Parliament can only arise after any decision is taken against the Judge by the Parliament. No argument based on the violation of principle of natural justice can be considered on the assumption that the Parliament may adopt a procedure which may be in violation of principles ofnatural justice. Thus, if a direction F is being soughIfor supplying a copy of the report on the ground of assumed violation of any principle of natural justice by the Parliament, there is no justification and it would be pre-judging the issue and predicating a remedy without laying any foundation or basis for such relief. [202 C-F]

4. The entire constitutional scheme in this matter shows that the G Parliament had complete confidence in the independence and dignity of judiciary. The Inquiry has been left to the Inquiry Committee composed of high judicial functionaries alone. Io case of such Committee giving a finding of not guilty, the same has been considered as final and giving a quietus and no further discussion on the motion has been made permis- H slble. It is only lo case of finding of gnilty recorded by the Inquiry

SMT. S. RAMASWAMI v. U.0.1. 123

Committee that the motion is required to be taken up for further con· A sideration. In this kind of case in the larger public interest including the independence of the judiciary itself any delay after the recording of such finding of guilty, if any by the Inquiry Committee and to permit such report being challenged by way of judicial review at this .stage would not be proper. The matter after recording, if any, a finding of gnilty against the concerned Judge by the Inquiry Committee should be left for further consideration by the Parliament. (205 G-H, 206-A]

5. The finding of gnilty recorded by the Committee on the charges is not conclusive and final and the Parliament can still bold that the charges levelled against the concerned Judge did not amount to misbehaviour and may decide not to adopt the motion. On the other hand, if In the course of judicial review this Court approves or affirms such findings recorded by the Inquiry Committee being a decision of this Court shall be binding on the Parliament. In that case, it would not be possible for the Parliament to take a different view and this would be an extra constitutional inter· D ference in the framework of the scheme. In another case during the course of judicial review this Court may come to the conclusion of quashing the entire proceedings conducted by the Inquiry Committee and require it to hold a fresh inquiry. (204 C·D]

6. The life and existence of the Inquiry Committee is co-terminus E with the period of 3 months as laid down in Rule 9(2) (c) of the Rules or till the Speaker extends the time for sufficient cause under the the proviso to the aforesaid Rule. After this period is over, the Committee ceases to function and neither this Court nor any other Court can extend this period in the exercise of judicial review of the findings of the Inquiry Committee. F The period of 3 months has been fixed in the statutory rules itself and the Speaker alone has been authorised to extend such period for sufficient cause. This Court cannot extend such period nor give any direction to the Speaker to do so, and any attempt of remanding the matter for fresh inquiry or to keep the matter pending till the concerned Judge decides to G challenge the report byway ofjudlcial review or to keep the matter pending for decision under the exercise of judicial review beyond the aforesaid period Is not permissible and cannot be done In an indlrect manner which cannot be done dlrectly. This Court has no power to extend the life of the Inquiry Committee by judicial fiat In the teeth of the express provisions of the statutory rules. (204 E·H, 205-A] H

p. 124 Copy page pinpoint

A 7. So far as the stage after the conclusion of the proceedings in the Parliament are concerned, the remedy of judicial review is always available which, of course, will depend on the facts and circumstances of the case emerging then and subject to recognised permissible grounds of judicial review. (205 E-F)

B 8. The powers, duties and functions of the Inquiry Committee con· stituted under the provisions of the Act and composed of high judicial functionaries which records its finding after giving an opportunity to the concerned Judge on the basis of the oral and documentary evidence cannot be compared or equated with the sanction accorded by an executive authority under Section 197 of the Code of Criminal Procedure in respect of a public servant. (204 A-Bl

9. In Sub-Committee on Judicial Accountability's case the controversy raised in the present case was not in issue and the Court in that case was concerned with the stage of entertaining the motiO!l by the Speaker for consideration of the House and the fate of such motion upon the dissolu· lion of the Lok Sabha. (200 D·El

Sub-Committee on Judicial Accountability v. Union of India & Ors., (1991) 4 S.C.C. 699, explained. E Per K Ramaswamy, J. (Dissenting)

1. The Judge is entitled to the supply of a copy.of the report and the Committee being a high statutory one, the Court can, keeping the status of the Committee in view, make a request to supply the copy of the Report F to the learned Judge. Its concomitant would be that the teamed Judge needs time to reflect upon to take a decision and action thereon. Neces· sarily, the Committee is to be requested to withhold submission of its report for a reasonable time. (224 D·Fl

2. The legislature itself has made a distinction between the conse· G quences that would flow from recording a finding of guilt or exoneration and the former is subject to political process, together with the contra finding of third member but in the latter case it is conclusive. As held in Sub-Committee on Judicial Accounta/Jility's case, no further steps based thereon should be taken up for consideration. In other words, it is immune H from attack from any quarter whatsoever, when even the Parliament itself

SMT. S. RAMASWAMI v. U.0.1. 125 was prohibited to go into that question. [216 D·F] A 2.1. By operation or Section 6(1), if the report or the Committee contains a finding that the Judge is not guilty of misbehaviour or does not suffer from any incapacity, then no further steps should be taken in either House of the Parliament In relation to the report and there Is legislative mandamus that the motion pending in either House of the Parliament shall not be proceeded with. In other words the motion stands lapsed. The result also is envisaged in Rule 9(4). Thus the finding of 'not guilty', In other words, 'exoneration' from the alleged misbehaviour or incapacity by majority of the members is treated to be conclusive and should be kept secret and by necessary implication It excluded judicial review. The reason is obvious that the finding of a high judicial body, a final arbiter, must be respected; should receive finality and should not be tinkered with. Equally disclosure of even the minority view would .affect not only the reputation of the Judge but the non-disclosure would also ward off collateral attack from any quarter or liability to be questioned by any tlilrd party. Neither D the members of the Parliament, nor anybody have locus or right to participate and lead evidence against the Judge at the investigation done by the Cor.imittee. As a necessary corollary no-one is entitled to impugne the correctness of the findings of 'not guilty' recorded by the Committee, absolving the Judge from the charge. [214 G·H, 21S·A, 216 B·D] E 2.2. Thus, if the Committee makes, an unanimous or per majority, finding that the learned Judge Is 'not guilty' of misbehaviour, the finding receives quietus and is conclusive. The political process pursuant to pending motion should not be proceeded with and should stand lapsed. The minority finding of 'guilt' should remain secret and none be entitled to, either access to the report of exoneration or to assail the correctness of the finding of not guilty recorded by the Committee. The need to supply the report is obviated. [223-D]

On the other hand if the Committee either unanimously or per majority makes a finding of 'guilty of the proved misbehaviour' only that part should be lai.d on the floor of each House of the Parliament in terms of the Act and the Rules along with the minority views of 'not guilty' and the political process for removal of the Judge would start. That report is adverse to the learned Judge. Without knowing what the contents of the report are; the reasoning in support of the findings of proved mis· H

p. 126 Copy page pinpoint

A behaviour or other Illegalities in the process of adjudication, a patty cannot be foreclosed from legal remedy. Without supply of the material, the foundation of legal Injury, the Judge rannot adequately and effectively plead, prove and disabuse the incorrectness of the finding etc. May be the learned Judge opts to avail the remedy on the Door of the House of B Parliament. But the non-supply of the report would trench into offending the principles of natural justice. It Is anathema to judicial process. The . secrecy or the report of minority member's finding of 'guilt' Is to protect the Judge but when the finding of guilt ad\ersely affects the· Judge, it cannot be denied on the plea of secrecy. Therefore, the learned Judge is entitled to a copy of the report. (223 E·F, 224 A-D] c

3. Every right carries with it the corollary remedy to redress the injury. Indisputably and as a fact in fairness, Judge is entitled to judicial review. The arena of controversy is, whether before the Parliament bad taken up the motion for consideration or after the President passed an D order of removal under Article 124(4). That stage would set only if and when the learned Judge has chosen to seek judicial review. That would arise only when be has been supplied with a copy of the report. (223-G, 224-A] Tun Dato Haji Mohanad Sallah Bin Abus v. Tam Sri Dato, 1988 E L.R.C. 25; Powell v. Mccomack, [1937] 395 U.S. 486; Halsted L. Ritter v. U.S., 84 Court of Claims 293 and Ritter v. U.S., 300 U.S. 663, referred to.

Raoul Berger, Impeachment : The Constitutional Problems, (1973); Black on Impeachment; Lawrence Tri be, American Constitutional Law, 1988 2nd Edn.; Emanucts, Constitutional Law, 1991-92, referred to. F S.A. De Smith, 'Tenure of Office by Colonial Judges' 16 Modem Law Review 502 (1974); Daniel A. Rezneck, "Is Judicial Review of Impeachment Comings' 60 American Bar Association Jouma~ 681 (1974); Miachel J. Gerhadt, 'The Constitutional Limits to Impeachment and its Alternatives' G 68 Texas Law Review 1 (1989), referred to.

4. In substance the investigation and proof of misbehaviour or incapacity of a Judge under Article 124(5) read with the Act and the Rules; the address by each House of Parliament supported by the requisite majority and removal of a Judge by the President is akin to a disciplinary H measure to resuscitate and infuse needed judicial conduct and fervidity by

SMT. S. RAMASWAMI v. U.0.1. 127 assertion of the supremacy of law that the Judge too will be subject to law. A The Judge occupies a Constitutional office. Article 124(5) devised an amalgam of judicial and political porcess to remove an erring Judge or Judge suffering from incapacity. The report submitted by the Committee to the Speaker with the finding lbat the allegtid misbehaviour Is proved and the Judge Is found guilty of the proved misbehaviour, constitutes fresh material. In a quasi-Judicial matter, if the delinquent Is being deprived of knowledge of the material against him, though the same was made avail· able to the punishing authority in the matter of reachlngs Its conclusion it is violative of the rules of natural justice. The Legislature, however, can exclude operation of these principles expressly or impliedly but in the absence of any much exclusion, principles of natural justice will have to be followed. The finding of guilt of misbehaviour or Incapacity, with which the Judge Is suffering from,- would visit with civil consequences of loss of reputation In the society apart from forfeiture of office. It Is now settled law that the principles of natural justice are an Integral part of constitu- tional scheme of just and fair procedure envisaged under Article 14 of the D Constitution. [221 F-G, 222 G-H, 223 A-Cl

Union of In<iia v. H.C. Goe~ [1964] 4 S.C.R. 718; Union of India & Ors. v. Mohd. Ramzan Khan, [1991] 1 S.C.C. 588; Mazharnl Islam Hashmi v. State of U.P. & Anr., [1979] 4 S.C.C. 537 and Mohinder Singh Gill & Anr. v. The Chief Election Commissioner New Delhi & Ors., [1978] 2 S.C.R. 272, E relied on.

5. All the trappings of the court need not necessarily be present In a particular case to bring the authority as a Tribunal but the essantial postulate must be that It must be the creature of the statute and the State F should delegate its inherent power of judicial review to the Tribunal; all or some of !be trappings of a court may or may not be present in a given case. The Tribunal should adjudicate the dispute between the parties before it, after giving reasonable opportunity to the parties, consistent with the principles of fair play and natural justice. It is not necessary that proprio vigore it is enforceable. The mere fact that it is subject to further G orders does not take away the effect of the decision or findings recorded thereunder. [220 D-E]

5.1. The Committee has been empowered to adjudicate on the proof or disproof of the charges in accordance with the evidence legally adduced H

p. 128 Copy page pinpoint

A after hearing the Judge and the Advocate. The Committee has no other function except to adjudicate upon the dispute of 'the proved guilt or not guilty'. By operation of Rule 6 the Committee, may on consideration of the evidence and applying the standard of 'proof beyond reasonable doubt', make a finding that the misbehaviour or incapacity has been proved or B disproved. The finding of guilt alone is subject to political process. Thus the Inquiry Committee is a higl> judicial body or authority. [221 C-D] lndo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addi. Collector of Custom & Ors., [1964] 6 S.C.R. 594; The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, [1950] S.C.R. 495; Associated C Cement Co. Ltd. v. P.N. Shanna & Anr., [1965] 2 S.C.R. 366; DUTga Shankar Mahta v. Thakur Raghuraj Singh and Ors., [1955] 1 S.C.R. 267 and Dev Singh & Ors. v. Registrar, Punjab & Haryana High Court & Ors., [1987] 2 S.C.R. 1005, referred to.

6. The moment the report was signed by the Committee, it did not, ipso facto, become the document of the Parliament but when the Speaker/Chairman or both, as the case may be, caused the report to be laid on the ftoor of each House of Parliament together with the evidence and the motion in the manner prescrlb•d in Rule 16, it becomes the document of the Parliament. Until then the Speaker/Chairman holds the document in his statutory capacity under the Act. [218 A-Bl

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 514of1992.

(Under Article 32 of the Constitution of India).

Kapil Sibal and Ranjit Kumar for the Petitioner. F G. Ramaswami, Attorney General, D .N. Dwivedi, Addi. Solicitor General (N.P.), F.S. Nariman, Ms. A Subhashni, P.H. Parekh, Raju Ramachandran, Subhash Chandra Sharma, Sunil Dogra and AM. Khan- wilkar for the Respondents. G