KRISHNA SWAMI AND ORS. v. UNION OF INDIA AND ORS.

K.SWAMlv. U.0.1.[RAMASWAMY,J.] 93

up the committee to investigate into the misbehaviour since the consitution had already preserved their right to participate in the address to the President on the floor of each House of the Parliament to discuss the conduct of the Judge. Their statutory obligation under section 3(1) was to state the grounds to move the motion praying for removal of the Judge with requisite majority; and to lay the evidence before the Speaker/Chairman. Their right to participation would revive only when the report and the evidence with finding/findings that the misbehaviour or incapacity has been proved was laid on the floor of the House and discussion was initiated under Art. 124(4) and the Rules.

This statutory and constitutional setting and larger public interest c furnishes unerring source to conclude that no third party has right to barge or butt in the proceedings and that non be permitted to participate in the investigation nor entitled to adduce evidence for or against the Judge. It is the Judge and the Advocate alone to participate and prove or disprove the charge/charges and be heard. No one except the Judge, in the event of an D adverse fincrlng of guilt and none, when the Judge was absolved of the charge/charges, be permitt~d to assail the correctness, legality or validity of the proceedings, process or fmdings of guilt or not guilty. None has rights or interest with askance eye to parade the correctness of the proceedings or conclusions of the Committee, nor to avail judical review. E The further contention that the procedure under the Commissions of Enquiry Act of public notice inviting evidence.. against the Judge from any person who has such evidence in his possession gets crushed by the teeth of the built in procedure prescribed in the Act and the Rules. Lest it would be, as stated earlier, and open invitation to the disgruntled to place F fabricated evidence and it would be fraught with grave dangers, endless investigation and protraction for publicity seeding insidious effects. It is transparent from the scheme that any evidence sought to be used against the Judge must be laid by the requisite members of the house of people or Rajya Sabha before the Speaker/Chairman and none be permitted there- G after. Take for instance that in the motion the grounds of misbehaviour with material facts or particulars were made and photostate copies in support thereof were enclosed. To satisfy and ensure correctness, authen- ticity and· reliability the Enquiry Committee may summon the original records even before framing a charge. On a charge of corruption the grounds with material particulars were mentioned and the source was also H

94 SUPREME COURT REPORTS [1992] SUPP. l S.C.R.

A specified. But there may not be any documentary evidence, in support thereof. Often would not be available, or the person in possession of such evidence may not be willing to commit himself before hand. The Commit- tee has discretion depending upon the nature o; the source or its depend- ability or reliability to frame a charge or may summon the person to swear to an affidavit and later may be examined as a witness or to tender occular evidence at the investigation and be subjected to cross-examination. Sup- pose the grounds of corruption are delightfully vague, bereft of particulars and the source was not specified, it may be that the Committee may not feel it expedient to frame even a charge. Suppose eveil when the details and source were specified in the gronnds, but if the Committee feels that the source is highly doubtful, nndependable, etc. it may be open to the Committee to refrain from framing charge/charges. It is, thus, clear that the Act left wide discretion to the Committee to device its own procedure and adopt its own fnnction during the investigatin to discover and collect the evidence. This perspective leads us to conclude that the permission granted to M/s George Fernandoz and Jaswant Singh and SCJA is illegal and without authority of law and jurisdiction. Any adverse evidence against the learned Judge placed or adduced by ' them which was not already part of the record of the Speaker, should be expunged, should not be con- sidered and be excluded from the record of evidence to the Committee.

E Equally, the contention that the procedure envisaged in Sec. 3(3), (4) and Section 4 are nnconstitutional and ultra vires of the Art. 124(4) of the Constitution is misconceived. Article 124(4) of the Constitution postulates that the Judge of the Supreme Court/High Court shall not be removed from his office except by an order of the President passed after an address by each House of the Parliament supported by a majority of the total membership of that House and by majority not less than two-thirds of the members of the House present and voting has been presented to the President in the same session for such removal, on the "ground of proved misbehaviour or incapacity". Sub-Article (5) thereof regulates by law the procedure for the presentation of the address and for the "investigation and proof of misbehaviour or incapacity of the Judge". In exercise of the power nnder Article 124(5) read with Article 246(1) and entry 77 of List I of Vllth Schedule to the Constitution, the Act was made.

Under Sec. 3(1) the motion for removal of the Judge must contain H "the gronnds on which the removal of the Judge was prayed for". It is

K.SWAM!v. U.0.1. [RAMASWAMY,J.] 95

obvious that the grounds are based on sufficient material or evidence. A Section 3(3) envisages that "the committee shall frame definite charges agaiost the Judge 'on the basis of which the investigation is proposed to be held". (emphasis supplied} Sub-section (4) thereof contemplates of com- munication in Form I of the Rules, of those charge/charges so framed, together with a statement of the grounds on which each such charge is based. On consideration of the grounds and the material or evidence in the motion the definite charge/charges are to be framed which is the founda- tion to start investigation to prove the charges. Members of the Parliament are not familiar to or versed with the process or distinction between grounds and charge. They need to state the grounds and it is the duty of the committee to scan the evidence or material and to frame definite charge or charges. A reasonable opportunity for presentation of the written statement of the defence within a specified time should be given to the Judge who has the right to object in writing to the sufficiency of the framed charges. If the objection it sustaioed, the Committee_ would amend the charges under sec. 3(8) read with Rule 7; and the Judge be given reasonable opportunity to present fresh written statement. If the Judge admits that he is guilty of misbehaviour or suffers from incapacity, the Committee shall record such admission and may state its finding on each of the charges in accord:lllce with such admission [Rule 7(1)). lf the Judge denies the charge/charges or refused or omits or is unable to plead or desires that the Committee shall proceed with the enquiry under Sec 4(1), E or if the Judge does not appear, on proof of service as per rule 3, the Committee may proceed with the enquiry ex parte. Under sec. 3(9) the Central Govt. may appoint at the request of the Speaker/Chairman an Advocate to conduct the case against the Judge. Rule 11(1) gives the Judge the right to consult and be defended by an Advocate of his choice line in F Art. 22(1Yof the Constitution. Section 5 give~ the committee all the powers of the Civil Court while trying a suit under the Code of Civil Procedure, 1908, to summon the witnesses required, discovery and production of the documents, to receive evidence on oath, issue commissions for the ex- amination of witnesses or documents or such other matters as may be prescribed. The advocate obviously should examine witnesses under G sec.4(1) to prove the case against the Judge with an opportunity to the latter to cross-examine those witnesses; and addnction of his own evidence in rebuttal and an opportunity of hearing in his defence. Under Sec. 4(2) read with Rule 9, at the conclusion of the investigation, the committee H

96 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A should submit to the Speaker a report with its findings on each charge separately if there are more than one with such ob•ervations on the whole case as it thinks fit. If the report is not unanimous as per sub-rule (1) of Rules 9 majority view in terms of sub-rule (4) thereof should be communi- cated. If the majority finds that the charges are not proved and one member found the misbehaviour or incapacity proved it should be kept B confidential and withheld to the Parliament or any other authority, body or person. Under Rule 10, the evidence of each witnes~ exami!led by the Committee should be taken down in writing and under the personal dictation and superintendence of the Presiding Officer thereof. The provisions of the Civil Procedure Code shall, as far as may be, apply for c the examination of any witness in the inquiry. The majority finding of guilt forms the base for report. The evidence and the documents together with report of proved misbehaviour/incapacity should be laid before each House of the Parliament along with the report and evidence and minority contra view sent unde~ section 4(2). D A resume of the fascicule of these provisions would show that the committee has been empowered to regulate its own procedure, as is ex- igible, based on fact situation, to make investigation into the charge/charges of the misbehaviour or incapacity of the Judge consistent with the Act, Rules and fair play like the trial of a civil suit. if the Committee finds that there is no prima facie evidence to frame even charges, the need to proceed further into the charge/charges is obviated. It would be entitled to record findings together with a statement of general observations of the case and would submit its report that the record or facts does not warrant the framing of a charge or charges or investigation, as it would be a futile exercise, and retransmit the record to the Speaker in terms of the Act and the Rules. Framing of charges is thus the foundation for investigation. By necessary implication it excludes the adaptation of inquisitorial process. If the committee finds prima facie case it would be open to it to frame definite charge/charges and would ensue follow up action. The power under G Sec.3(5) is to summon the original record from proper custody or any record in support of the charges and sought to be relied on or witnesses to prove the charges and given an opportunity to the Advocate and the Judge to examine their witnesses to prove/disprove the respective case. By necessary deduction it is not a condition precedent to follow inquisitorial procedure as an initail step and thereafter to have adversarial enquiry. The power of

K.SWAMI V. U.0.1. [RAMASWAMY,J.] 97

the Committee to summon the record is to supplement the material placed before the Speaker/Chairman by original record or other necessary evidence/witness but not to supplant any new material unrelatable to the grounds in motion or charges framed. The witnesses summoned or ex- amined on commission are to prove as a fact the charges made against the Judge. The investigative power· granted to the administrative agencies normally is inquisitorial in nature but the Act devised a special media or modus keeping the judicial independence beyond the ken of coloured visions and entrusted the power or" investigation only to High Power Judicial Committee consisting of a sitting Judge of the Supreme Court, a sitting Chief Justice of a High Court and a distinguished Jurist, in one word a high "Judicial authority". The proceedings before the Committee is neither civil nor criminal but sui generis.

The appointment of the advocate at the behest of the Speaker/Chair- man was to prove the charged misbehaviour/incapacity against the Judge. He presumptively acts on behalf of the speaker like a counsel for the plaintiff without any hold or control by the Speaker and would assist the Committee as an independent agent. The Committee while making inves- tigation does not act like. a prosecutor nor itself would lead evidence against the Judge but acts akin to a Civil Court. The Speaker/Chairman also has no say or away during investigation into the alleged misbehaviour of the Judge. The Committee has only statutory duty to submit to the speaker its reports and the evidence at the conclusion of the investigation.

The investigation done by the Cummittee, thus is t'l find whether the alleged misbehaviour/incapacity has been proved. Undoubtedly, the public law litigation often contradicts the premise behind those of private law. In F public law wider public interest it involved over and beyond he contending parties. It concerns the future and private law litigation is retrospective in operation. Prof. Wade in his Administrative Law, 5th Edn. at p.803 has stated that:

"It is fundamental that the procedure before a tribunal, G. like that in a Court of law, should be adversary and not inquisitorial. The tribunal should have both sides of the case presented \o it and should judge between them, without itself having to conduct an inquiry of its own motion, enter into the controversy and call-evidence for H

98 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A or against either party. If it allows itself to become in- volved in the investigation and argument, parties will quickly lose confidence in its impartiality, however fair minded it may in fact be."

The word 'investigate' was defined in Black's Law Dictionary, 6th B Edition, at p.825 thus :

"fo follow up step by step by patient inquiry or observa- tion. To trace or track; to search into; to examine and inquire into with care and accuracy; tn fmd out by careful inquisition; examination; the taking of evidence; a legal inquiry."

The word 'investigation' was defined at p.825 thus :

'The process of inquiring into or tracking down through inquiry.'

The word 'proof was defined at p.121.5 thus :

"The effect of evidence; the establishment of a fact by evidence. Any fact or circumstance which leads the mind to the affirmative or negative of any proposition. The conviction or persuation of the mind of a judge or jury, by the exhibition of evidence, of the reality of a fact alleged. The establishment by e\idence ·of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court ....... .

Proof is the result or effect of evidence, while evidence is the medium or means by which a fact is proved or dis- proved, but the words "proor and "evidence" may be used interchangeably. Proof is the perfection of evidence; for without evidecne there is no proof, although there may be evidence which does not amount to proof; for example, if a man is found murdered at a spot where another has been seen walking but a short time before, this fact will be evidence to show that the latter was the murderer, but, standing alone, will be very far from proof of it."

K.SWAM!v. U.0.1.[RAMASWAMY,J.] 99

The Committee as Judicial authority adopts the procedure of a trial of a civil suit under the Code of Civil Procedure; It is not inquisitorial but adversary to search for the truth or falsity of the charge/charges by taking evidence during the investigation like a trial of a civil suit aod it should be the duty of the Advocate aod the Learned Judge, or his counsel to prove/disprove if burden of proof rests on the Judge, as a fact by adduction of evidence or the affirmation or negation or disproof of the imputation under investigation. The word 'investigation' is to discover aod collect the evidence to prove the charge as a fact or disproved. The Evidence Act defined the words "proved" aod "disprove" as when after considering the matters before it, the court either believes the fact to exist or not to exist or its existence is so probable/non-existence is probable aod the test of acceptaoce or non acceptaoce by a prudent mao placed in the circurnstao- ces of a particular case was adopted. The Consideration of the evidence is like a criminal case as the finding would be 'guilty' or 'non-guilty' of misbehaviour under section 6 of the Act. The test of proof is "proof beyond reasonable doubt". The words investigation aod inquiry used in Art. 124(5), D the Act aod the Rules are interchaogeable aod do not take different colours from Varied contexts but connote the same theme to prove/disprove mis- behaviour or incapacity charged against the Judge beyond reasonable doubt.

The problem could be broached through a different perspective as well. In normal parlaoce, in a criminal case, investigation connotes dis- E covery aod collection of evidence before charge-sheet is filed aod based thereon definite charges are framed. Enquiry by a Magistrate is stopped when the trial begins. The trial is a culminating process to convict or acquit an accused. In Service Jurisprudence, departmental enquiry against a delinquent employee, bears similar insignia to impose penalty. At the investigation stage the accused or the charged officer has no say in say in the matter nor is he entitled to aoy opportunity. The disciplinary authority or enquiry officer, if appointed, on finding that the evidence discloses prima facie ground to proceed against the delinquent officer, the enquiry would be conducted. The cirminal court frames charges after supplying the record of investigation relied on. Equally, the disciplinary authority/inquiry officer would frame definite charge or charges aod would communicate the same together with a statement of the facts in support thereof sought to be relied on and would call upon the delinquent officer to submit his explaoation or written statement of defence etc. At the trial/enquiry the person is entitled to reasonable opportunity to defend himself. The higher H

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A judiciary holds the office of constitutional responsibility and is a constitu- tional functionary. His conduct is not subject to any discussion, under Art. 121 on the floor of Parliament. Therefore, no-one is entitled even to act as plain clothes spy to pry into his/their conduct to set rumours afloat. If it would be otherwise, the disgruntled would concoct stories, crow into the ears and pass on as palpably palatable truth either to deter or demoralise B an upright, indomitable and unarnenaole Judge. When definite material or evidence was placed before the Speaker of the House of the People or Chairman of the Rajya Sabha, the Speaker/Chairman, on due satisfaction as stated hereinbefore, that the ground/grounds needs investigation, would admit the motion and transmii the record to the Commiltee i.e. high c Judicial authority for investigation into the alleged misbehaviour. The investigation contemplated in Art. 124(4) of the Constitution or investiga- tion or inquiry envisaged in the Act are synonymous and interchangeable, as has rightly been contended by Sri Nariman.

D The behavioural discipline of a Judge is an integral component of judicial independence. Admission of the motion is a statutory fon~ign. Investigation into misbehaviour or incapacity of the Judge though integral part of composite scheme to remove an erring Judge though political process, the proceedings before the Committee is purely judicial with all its indicia as the C.P.C. was eicpressly made applicable. The Constitution, E the Act and the rules aimed to discipline the discipled when gone astray so as to establish the supermacy of law so that the pure flames of public administration of justice are always burning bright and aloft. Thereby it would balance the competing interests of independence of the judiciary and accountability. The maRers of the Act after a great deal of delibera- F tions made an admixture or amalgam of political and judicial process to remove an erring Judge atune to the constitutional creed and left the choice to the high judicial authority to adopt its own procedure to inves- tigate into the charges of misbeha\iour while adhering to the scheme of the Act, the Rules and fair play. The removal of a Judge is paved by a judicial verdict after following fair and just procedure. It is, therefore, most effica- cious, most salutary and the best mode in vogue in the world's democratic countries to uphold independence of the judiciary. Thus it must be held that the Act and the Rules provided built-in fair procedure to prove the alleged misbehaviour or incapacity of a Judge. It is akin to adversarial and trial of a civil suit and the Committee acts as an independent "Judicial

K.SWAMlv. U.0.1.[RAMASWAMY,J.] 101

statutory authority" The provisions are consistent with Articles 124(4), 14 and A 21 of the Constitution of India and they are not ultra vires of the constitution.

The contention of Sri Altemeas Rein that since the learned Judge, on his elevation as a Judge of the Supreme Court, had vacated his office as Chief Justice of the Punjab and Haryana High Court, the alleged misbehaviour, if any, would cease to be relevant and that his conduct, i.e. B his misbehaviour as a Judge of the Supreme Court alone would be subject matter of the motion and investigation, would stand to no minute scrutiny. Undoubtedly, by operation of Article 217 (C) of the Constitution, the learned Judge had vacated the office as Chief Justice of the Punjab and Haryana High Court on October 6, 1989, the day on which he assumed the officer as a Judge of the Supreme Court. What is relevant is his behaviour as a Judge while discharging the duties of the office of the Judge, i.e. Chief Justice of the Punjab and Haryana High Court. What is pertinent in a motion for removal of the Judge in his/her misbehaviour of incapacity. For the efficacy of the judicial adjudication and peoples faith in the rule of law, people must have absolute faith and confidence in the honesty, integrity, impartiality, courage, and independence, of the Judge. So, upright and resolute conduct of the presiding Judges of the Court is imperative. If that faith and confidence is in any way shaken or shattered, the legitimacy of the very system of Govt. is tainted and the consequences will be dis- asterous. So long as one holds the judicial office, the above conduct remains germane and relevant. Any imputation of misbehaviour through a valid motion admitted by the Speaker needs investigation. The elevation of a High Court Judge to the Supreme Court is only an elongation of the judicial functions in the apex court with the same judicial fervour. From this perspective, the alleged misbehaviour of the learned Judge, if proved, would remain germane, even while the learned Judge is a Judge of this Court. It would thus not be difficult to discount the contention of the learned Advocate as of no substance.

The meaning of the word 'misbehaviour' in Article 124(4) of the Constitution is the crux of the question. Before embarking into the ques- G lion, it is necessary to gaze the founding father's animation and anxiety to wean .away or ward off or disabuse the executive mind of the judges of the constitutional court in judicial review. Article 124(2) of the Constitution fJXes their tenure. Article 125 read with Schedule II guarantees him/her undiminished salary, privileges and perks prevalent on the date of assump- H

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A tion of office as a Judge and during the tenure. Article 124( 4) assures 11 irremovability from office, except for "proved misbehaviour or incapacity in accordance with the procedure therein, the Act and the Rules. Articles 121 then lifts the rigour of the total ban of public discussion against the conduct of the Judge only when the finding of proved misbehaviour or incapacity was recorded by the Committee; the report together with the evidence, the source material for discussion, was laid on the floor of each House of Parliament under Section 6 of the Act read with Rule 9(5) of the Rules and discussion was initiated, that too of the concerned Judge. The process for removal of the Judge had initiation from statutory process but finding of "proved misbehaviour" was recorded by Judicial process and final act of removai by the President was after an address on the floor of each House of Parliame.nt as political process determined by majority resolution as enjoined by Art.124(4) of the Constitution. Obviously, Article 121 ac- cords to the members of the Parliament full freedom to discuss the conduct of the Judge vis-a-vis proved misbehaviour and may concur with the committee or vote down the motion i.e. the presumptive finding is that the charge is deemed to have been proved or disproved under section 6(3) or even if proved facts do not warrant removal of the Judge. Otherwise, there is a total ban on the discussion of the conduct of any Judge/Judges in the discharge of his/their duties. Resolution passed by majority in the manner laid by Art.124(4) is the foundation for the President to pass an order removing the Judge from his office.

The underlying insulation and imperviousness is to secure judicial independence to the Judge to do that should be just, equitous, fair or fit for a Judge to do. The reason is that the Judg~ is to make judicial review not only between citizen and citizen but also between the Executive Authority and the citizen or the States inter se. or the Centre and the State. When the right of a citizen is attacked from any quarter or his claim is denied or is wrong, the judiciary alone should punish the wrong doer or restore the violated right or redress the legal injury. Stronger weapon in the armoury of judiciary is the confidence it commands and faith it inspires and generates in the public in its capacity to do even _handed justice and keep the scales in balance in any dispute. The judiciary is thus the cus- tpdian and guardian of the rights of the citizen. It should, therefore, be independent, impartial an incorruptible. He/She should have the courage, uprightness and conviction to do his/her duty in terms of the oath.

!<.SWAMI V. U.O.l. [RAMASWAMY,J.] 103

It could be pondered over in tune with constitutional philosophy. A Judicial review is the touchstone and repository of the supreme law of the land. Rule of law as basic feature permeates the entire constitutional structure. Independence of the judiciary is sine quo non for the efficacy of the rule of law. This court is the final arbiter of the interpretation of the Constitution and the law. It has to maintain the delicate balancing wheel of the whole constitutional system keeping the Executive and the Legisla- ture within the confines of their power and jurisdiction and also check their excesses and declare ultra vires their powers and actions while keeping a self-check. The independence of the judiciary in the scheme is essential to establish real parliamentary democracy and maintenance of rule of law to usher in an egalitarian social order, removing the existing imbalances, social and economic inequalities, assuring liberty, equality, .fraternity and to further justice - social, economic and political with dignity of the persons and fraternity to integrate Bharat. Independence of judiciary thus con- stitutes the cornerstone and the foundation on which om democratic polity itself is to rest and work on sound principles. D

To keep the stream of justice clean and pure, the judge must be endowed with sterling character, impeccable integrity and upright be- haviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. The judges of higher judiciary should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law. G From this constitutional orientation, let us plough the seeds or roots of causation of "misbehaviour" in Article 124(4). The Constitution or the Act, obviously, gave no definition of misbehaviour. In Corpus Juris Secun- dum 1 Volume 58, the word !!Misbehaviour" was defined as conduct, improper or unlawful behaviour. It has been held to be synonymous with H

104 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A misconduct. The words and phrases as judicially defined in Volume 3, 11 Misbehaviour" has been defined as "outrageous or improper conduct 11 •

Black's Law Dictionary, 6th Editiion, p.998, defined 'misbehaviour' as "ill conduct, improper or unlawful behaviour". 'Misconduct' was defined at p.999 as "A transgression of some established and definite rule of action, B a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour; its synonymS are m~sdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, of-· fence, but not negligence or carelessness. 'Misconduct in office' was defined as "Any unlawful behaviour by a public office in relation to the c duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act".

In Encylopedic Law Dictionary, 3rd Edition, at p.720 'misbehaviour' D was defined as "improper or unlawful conduct, generally applied to a breach of duty or propriety by an officer, witness, etc. not amounting to a crime. P. Ramanathan Aiyar's 'The Law Lexicon, Reprint Edition, 1987 defines 'misbehaviour' at p. 820 as "ill conduct; improper or unlawful behaviour." 'Misconduct' was defined at p.821 as "the term "misconduct" E implies a wrongful intention, and not a mere error of judgment. Miscon- duct is not necessarily the same thing as conduct involving moral tur- pitude". The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regarc! to the scope of the Act or statute whlch is being construed. 'Misconduct' literally means wrong conduct or improper con- F duct". 'Misconduct in office' was defined as "unlawful behaviour or neglect by a public officer, by whlch the rights of a party have been affected".

Every act or conduct or even error of judgment or negligent acts by higher judiciary per se does not amount to misbehaviour. Wilful abuse of judicial office, wilful misconduct in the office, corruption, lack of integrity, or any other offence involving moral turpitude would be misbehaviour. Misconduct implies actuation of some degree of mense rea by the doer. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform the judicial duties of the judge or wilful abuse of the office dolus mains would be misbehaviour. Misbehaviour would extend to conduct of

K. SWAMI v. U.0.1. [RAMASWAMY,J.] 105

the Judge in or beyond the execution of judicial office. Even administrative actions or omissions too need accompaniment of mense rea. The holder of the office of the judge of the Supreme Court or the High Court should, therefore, be above the conduct of ordinary mortals in the society. The standards of judicial behaviour both on and off the Bench are normally high. The falling moral or ethical standards in the society are no ruse nor refuse to slacken the higher standards of judicial conduct. The society, therefore, is entitled to expect higher degree of propriety and probity in the judicial conduct from higher judiciary. There cannot be any fixed or set principles, but an unwritten code of conduct of well established tradi- tions are the guidelines for judicial conduct. The conduct that tends to undermine the public confidence in the character, integrity and impartiality c of the judge must be eschewed. It is expected of him to voluntarily setting forth wholesome standards of conduct reaffirmi~g fitness to higher respon- sibilities. Even the private life of a judge must adhere to standards of probity and propriety, acceptable to others. They alone would receive confidence and respect from the public. This legal setting would furnish the foundation to focus the question whether the learned Judge had committed financial improprieties or irregularities undermining the above standards in his adminisirative disposition and whether the same would constitute misbehaviour is to be angulated the findings given from the proven evidence by the Committee. Such finding of proved misbehaviour would undoubtedly be subject to requisite majority voting and when voted would become "deemed proof under sec. 6(3)" for removal under Art. 124{4). Then alone can the finding of proved misbehaviour be deemed accepted and would become final. If the motion is voted down, by neces- sary implication, the finding of the committee stands disproved and rejected.

We are alive to the fact that declaration of law would be laid only to apply it to the facts of the case on hand for or not granting the relief. The facts of the case !'resented an extra-ordinary scenerio. The Constitution or the Act did not define 'misbehaviour'. Several International forums hr judicial independence suggested to define misbehaviour but to no avail. No legislature in any democratic country attempted to do so as it would appear to be diffictilt to give a cOmprehensive definition to meet myraid situations. The scope of judicial review after the committee records findings that the H

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A misbehaviour has been proved would appear to be fraught with im- ponderables. The occasion for judicial review would scarcely arise. There are no set rules of conduct. The law laid by this court under Article 141 of the Constitution is the law of the land. Under these diverse circumstan- tial constraints I undertook to survey and declare the law and left if for its application by the Committee to the proved facts.

Though Sri Sibal attempted to argue on merits, on the grounds of violation of the principles of natural justice for non-supply of needed documents etc., I refrain to go into the diverse questions. Firstly, the reliefs sought are personal in nature to the learned Judge. He alone should seek and non else be permitted to assail. In a proceeding of this or the like or of departmental enquiry or in criminal matter. no one except the person aggrieved is entitled to ventilate the grievances regarding the legality, propriety, correctness or otherwise of the charges, the procedure the Committee adopted or the findings recorded therein. If the law permits suo motu or inherent exercise of power and the facts warrant exercise of the power, it would be open to the court/tribunal in an appropriate case, to do public justice to correct the same. Secondly, investigation has since been completed and the report is ready, I am sure the learned members with their rich and variagated experience, must have subjected the evidence to the same standard of consideration and reached at their findings. Even if otherwise a fresh look in this light, if need be, may not be surplusage but assuages an reassurance of the confidence. So it is for the Committee to look into and if need be afresh. This court cannot trench into that area. If the findings are positive they would be subject to political process of discussion on the floor of each House of Parliament and resolution per majority.

The writ petition is accordingly allowed to the extent of the above declaration and we direct the Registrar General to address a letter to the G Committee with a request to exclude the entire adverse evidence or record against the learned Judge placed either by Mis George Fernandoz, Jaswant Singh or the Sub Committee on Judicial Accountability, except the one part of the record sent by the Speaker. In other respects, subject to the above declaration of law the writ petition stand dismissed. But in the circumstan- H ces, without costs.

K.SWAM!v. U.0.l.[RAMASWAMY.J.] 107

WRIT PETITION (C) No. 140 OF 1992 A I am in complete agreement with my learned brother Verma, J. in. his consideration of the writ petition of the petitioner. Therefore, there is nothing useful for me to add. The writ petition is accordingly dismissed but without costs. B ORDER

This Writ Petition is dismissed m accordance with the majority opinion.

T.N.A. Petitions dismissed.