Sub-Committee
on Judicial Accountability Vs. Union of India
& Ors, [1991] INSC 276 (29 October 1991)
Ray,
B.C. (J) Ray, B.C. (J) Sharma, L.M. (J) Venkatachalliah, M.N. (J) Verma,
Jagdish Saran (J) Agrawal, S.C. (J)
CITATION:
1992 AIR 320 1991 SCR Supl. (2) 1 1991 SCC (4) 699 JT 1991 (6) 184 1991 SCALE
(2)844
CITATOR
INFO : RF 1992 SC2219 (1,2,4,8,9,16,17,23,TO 26,33,3
ACT:
Constitution
of India. 1950:
Articles
124(4) and (5) and 118--Removal of Judge of Supreme Court--Motion for
presenting an Address to President and decision of Speaker of Lok Sabha to
admit the motion and constitute a committee under Judges (inquiry) Act for
inves- tigation and proof of grounds--Whether lapses on dissolution of the Lok
Sabha--Whether Judges (inquiry) Act being law under Article 124(5) excludes
operation of doctrine of lapse and also rules framed under Article 118--Whether
Articles 124(5) and 118 operate in different fields-Question whether the motion
lapsed or not on the dissolution of Lok Sabha--Justiciability of.
Articles
124(4) and (5) and 121--Scope and interpreta- tion of-Removal of Judge of
Supreme Court---Whether Justi- ciable---Enactment of law under Article 124(5)
for regulat- ing procedure for investigation and proof of misbehaviour or
incapacity of Judges-----Whether mandatory--Word 'may "When to be
construed as 'shall '.
Articles
124(4) and (5) and 32---Removal of Judge of Supreme Court ---Apart from
constitutional process, whether Supreme Court has jurisdiction to enquire into
alleged misbehaviour or incapacity and restrain the concerned Judge from
exercising judicial junctions--Whether it can give legal directive to Chief
Justice of India not to allot any judicial work to the concerned Judge--Judge
facing enquiry, continuing to discharge judicial functions-----Propriety of.
Article
32 ---Public Interest Litigation--Inquiry Com- mittee constituted by the
Speaker of Lok Sabha under Judges (inquiry) Act to investigate into the alleged
misconduct of Judge of Supreme Court--Writ Petitions seeking directions to Union
Government to enable the Committee to discharge its functions under the Act and
to restrain the Judge from performing judicial functions during pendency of
proceedings before the Committee---Maintainability of--Locus standi of
Sub-committee on Judi- 2 cial Accountability and Supreme Court Bar Association
to sue--Whether Court could refuse to interfere on grounds of infructuousness,
propriety and futility--Declaration of legal and Constitutional position--Duty
of Court--Different organs of State to consider matters within the orbit of
their respective jurisdictions and powers.
Judges
(inquiry) Act, 1968:
Constitutional
validity of. Sections 3 and 6--Removal of Judge--Motion for present- ing an
address to President admitted and Committee consti- tuted by the Speaker of Lok
Sabha to investigate into charges of misconduct----Whether lapses on
dissolution of the House--Whether the Act, being law made under Article 124(5)
of Constitution, excludes doctrine of lapse and also rules of procedure for the
Lok Sabha framed under Article 118--Action of Speaker --Whether vitiated on
grounds of denial of notice and pre-decisional opportunity of hearing to
concerned Judge and Speaker's political affiliation ---Doctrine of statutory
exceptions or necessity--Applica- bility of.
Constitutional
Law:
Separation
of Powers under federal set-up--Court--Inter- preter of limits of authority of
different organs of State----Judicial review--Incidental to and flowing from
concept of written Constitution, the fundamental and higher law.
Interpretation
of Constitution:
Constructions
which strengthen the fundamental feature of the Constitution to be adoped-Rule
of law--Whether a basic feature---Independence of Judiciary----Whether essen- tial attribute of Rule of Law.
Aids
to Construction--Constituent Assembly debates--Whether could be relied
upon--Comparative Study of Constitution of other Countries-Whether afford
proper per- spective--Resort to historical background-Whether permissi- ble.
Administrative
Law--Natural Justice--Motion for removal of a Judge under Judges (Inquiry)
Act-Speaker deciding to admit the motion and constituting a Committee to
enquire into allegations of misbehaviour-Whether Judge concerned entitled to
pre-decisional opportunity of hearing.
3 Practice
and Procedure:
Removal
of a Judge Constitutional process pending--Conduct of members of the
bar--Propriety required that the Judge should not be embarrassed even before
the charges were proved----Level of debate in and out of Court----To be
dignified and decorous.
Words
& Phrases: Word 'may '--When could be read as'shall '.
HEAD NOTE:
Upon a
notice given by 108 members of the 9th Lok Sabha of a Motion for presenting an
Address to the President for the removal of a sitting Judge of the Supreme
Court for the alleged misconduct committed by him while he was functioning as
Chief Justice of a High Court, the Speaker of the Lok Sabha admitted the Motion
and constituted a Committee con- sisting of a sitting Judge of this Court,
Chief Justice of a High Court and a distinguished jurist in terms of Section
3(2) of the Judges (Inquiry) Act, 1968. Subsequently, the Lok Sabha was
dissolved and its term came to an end.
On its
understanding that the Motion as well as the decision of the Speaker thereon
had lapsed consequent on the dissolution of the Lok Sabha, the Union government
did not act in aid of the decision of the Speaker, and notify that the services
of the two sitting Judges on the Committee would be treated as
"actual-service" within the meaning of Para 11(B)(i) of Part D of the
II Schedule to the Constitu- tion.
Thereupon,
a body called the Sub-Committee on Judicial Accountability, claiming to be a
Sub-Committee constituted by an All India Convention on Judicial Accountability
to carry forward the task of implementing the resolutions of the conventions,
and the Supreme Court Bar Association, seeking to prosecute the matter in the
larger public inter- est and, in particular, in the interests of litigant
public, filed two Writ Petitions before this Court. Two prayers common to both
the petitions were, first, that the Union of India be directed to take
immediate steps to enable the Inquiry Committee to discharge its functions
under the Judges (Inquiry) Act, 1968 and, second, that during the pendency of
the proceedings before the Committee the con- cerned Judge should be restrained
from performing judicial functions and from exercising Judicial powers.
It was
contended on behalf of the petitioners that pending business lapsed on
prorogation, and as a general practice the House was 4 usually prorogued before
it was dissolved, but impeachment motions were sui-generis in their nature and,
therefore, they did not lapse; that the question whether a motion lapsed or not
was a matter pertaining to the conduct of the business of the House of which
the House was the sole and exclusive master; no aspect of the matter was
justiciable before a Court and Houses of Parliament were privileged to be the
exclusive arbiters of the legality of their proceed- ings, that it would be
highly inappropriate that the Speaker should issue notice to a Judge and call
upon him to appear before him; that these proceedings could not be equated with
disciplinary or penal proceedings and the Speaker would not decide anything
against the Judge at that stage and would merely decide whether the matter
would bear investigation;
that
the constitutional machinery for removal of a Judge was merely a political
remedy for judicial misbehaviour and did not exclude the judicial remedy
available to the litigants to ensure and enforce judicial integrity, that the
right to move the Supreme Court to enforce fundamental rights was itself a
fundamental right and that took within its sweep, as inhering in it, the right
to an impartial judiciary with persons of impeccable integrity and character,
without which the fundamental right to move the court itself becomes barren and
hollow, that the court itself had the jurisdic- tion - nay a duty to ensure the
integrity and impartiality of the members composing it and restrain any member
who was found to lack in those essential qualities and attainments at which
public confidence is built.
Another
Writ Petition was filed by an individual by way of a counter to the second
prayer in the Writ Petitions filed by the SubCommittee on Judicial
Accountability and the Supreme Court Bar Association. It was contended that
till the Inquiry Committee actually found the concerned Judge guilty of
charges, there should be no interdiction of his judicial functions and that if
such a finding was recorded then thereafter till such time as the Motion for
the presen- tation of the Address for the removal of the Judge was disposed of
by the Houses of Parliament--which should not be delayed beyond 180 days--the
President may ask the Judge concerned to recuse from judicial functions.
Another
Writ Petition was also filed by a practising Advocate challenging the
constitutional validity of the Judges (Inquiry) Act, 1968 as ultra vires
Articles 100, 105, 118, 121 and 124(5) of the Constitution of India and seeking
a declaration that the' Motion presented by 108 Members of Parliament for the
removal of the Judges 5 had lapsed with the dissolution of the Lok Sabha. The
peti- tioner also sought the quashing of the decision of the Speaker admitting
the Motion, on the ground of denial of opportunity of being heard to the
concerned Judge before the admission of Motion and constitution of the
Committee by Speaker.
A
Transfer Petition was filed seeking the withdrawal by the Supreme Court to
itself from the Delhi High Court the Writ Petition filed in the High Court,
where reliefs were similar to those prayed for in the Writ Petition filed by
the practising Advocate. The Writ Petition was directed to be withdrawn to the
Supreme Court and was heard along with other Writ Petitions.
1t was
contended on behalf of the petitioners in these Writ Petitions that before
taking a decision to admit the motion and constituting a Committee for
investigation, it was incumbent upon the Speaker, as a minimum requirement of
natural justice, to afford an opportunity to the Judge of being heard since
such a decision had momentous consequences both to the Judge and to the
judicial system as a whole and that any politically motivated steps to besmear
a Judge would not merely affect the Judge himself but also the entire system of
administration of justice and therefore it would greatly advance the objects
and purposes of Judges (inquiry) Act, 1968 if the Judge concerned himself was
given such a hearing; that the Speaker had acted contrary to Constitutional
practice, that the manner in which he had admitted the motion smacked of
malafides and since the Speaker had not entered appearance and denied the
allega- tions, he must be deemed to have admitted them; that having regard to
the nature of the area the decision of the Court and its writ is to operate in,
the Court should decline to exercise its jurisdiction, and that any decision
rendered or any writ issued might, ultimately become futile and infruc- tuous
as the constitution of and investigation by the com- mittee were not, nor
intended to be, an end by themselves culminating in any independent legal
consequence, but only a proceeding preliminary to and preceding the
deliberations of the House on the motion for the presentation of an address to
the President for the removal of a Judge, which was indisputably within the
exclusive province of the Houses of Parliament over which courts exercised no
control or juris- diction.
On
behalf of the Union of india it was contended that a combined reading of Articles
107, 108 and 109 would lead irresistibly to the conclusion that upon
dissolution of the House, all bills would 6 lapse subject only to the exception
stipulated in Article 108, that on first principle also it required to be
accepted that no motion should survive upon the dissolution of the House unless
stipulated otherwise under the Rules of proce- dure and conduct of business;
the doctrine of lapse was a necessary concomitant of the idea that each newly
constitut- ed House was a separate entity having a life of its own unless the
business of the previous House was carried over by the force of statute or
rules of procedure and that the question whether a motion lapsed or not was to
be decided on the basis of the provisions of law guiding the matter and the
House itself was not its final arbiter and the Court alone had jurisdiction to
examine and pronounce on the law of the matter.
Disposing
of the cases, this Court,
HELD:
By majority Per Ray. J. (for himself, Venkatacha- liah, Verma and Agrawal, J J)
1.1
Where there is a written Constitution which consti- tutes the fundamental and
in that sense a "higher law" and acts as a limitation upon the
Legislature and other organs of the State as grantees under the Constitution,
the usual incidents of parliamentary sovereignty do not obtain and the concept
is one of 'limited Government'. Judicial review is an incident of and flows
from this concept of the fundamen- tal and the higher law being the touchstone
of the limits of the powers of the various organs of the State which derive
power and authority under Constitution and that the judicial wing is the
interpreter of the Constitution and, therefore, of the limits of authority of
the different organs of the State. In a federal set-up, the judiciary becomes
the guard- ian of the Constitution.The inter- pretation of the Consti- tution
as a legal instrument and its obligation is the function of the Courts. It is
emphatically the province and duty of the judicial department to say what the
law is. [51 G-H, 52A, D]
1.2 In
interpreting the constitutional provisions con- cerning the judiciary and its
independence the Court should adopt a construction which strengthens the
foundational features and the basic structure of the Constitution. Rule of law
is a basic feature of the Constitutional fabric and is an integral part of the
constitutional structure. Inde- pendence of the judiciary is an essential
attribute of Rule of law. [31 D]
1.3 In
construing the Constitutional provisions, the law and 7 procedure for removal
of Judges in other countries afford a background and a comparative view. The
solution must, of course, be found within our own Constitutional Scheme. But a
comparative idea affords a proper perspective for the under- standing and
interpretation of the Constitutional Scheme.
[31
G-H] Barringtons Case [1830]; Terrell v. Secretary of State for the Colonies
and Another, [1953I 2 QB 482, referred to. Constituent Assembly Debates Vols. I
to VI @ pp 899,900 Vol. VIII @ pp. 243-262, referred to.
Halsbury's
Laws of England, 4th Ed. Vol. p 1108; She- treet 'Judges on Trial' (1976); pp.
404-405; Rodney Brazier 'Constitutional Texts' (1990) pp. 606-607; Gall 'The
Canadi- an Legal System' (1983); pp. 184-186, 189; Lane's Commentary on The
Australian Constitution (1986) p. 373; Mclelland 'Disciplining Australian
Judges' (1990) 64 ALJ 388, at p. 403; Henry J. Abraham.' The Judicial Process,
3rd Ed. p. 45; Robert J. Janosik: Encyclopeadia of the American Judicial
System, Vol II pp. 575 to 578; "The Impeachment of the Federal Judiciary"
Wrisley Brown Harvard Law Review 1912- 1913 684 at page 698; 'The Judicial
Process in Comparative Perspective' (Clarendon Press-Oxford 1989 at page 73);
(Erskine May's "The Law, Privileges, Proceeding and Usage of
Parliament" (Twenty-first Edition London Butterworths 1989);
M.N.
Kaul and S.L. Shakdher in Practice and Procedure of Parliament", referred
to.
2.1 It
is not correct to say that the question whether a motion has lapsed or not was
a matter pertaining to the conduct of the business of the House, of which the
House was the sole and exclusive master, and that no aspect of the matter was
justiciable before a Court. [29 C ,53 G]
2.2
The question whether the motion has lapsed is a matter to be pronounced upon on
the basis of the Constitu- tion and the relevant rules. [53 E]
2.3 On
such interpretation of the Constitutional provi- sions as well as the Judges
(Inquiry) Act, 1968, the Courts retain jurisdiction to declare that a motion
for removal of Judge does not lapse on dissolution of the House. [53F-G]
Bradlaugh v. Gossett, [18841 12 Q.B.D. 271, distinguished.
8 A.K.
Gopalan v. The State of Madras, |1950] SCR 88 Special Reference Case, [1965] 1
SCR 413, referred to.
Barton
v. Taylor, [1886] 11 AC 197, Rediffuson (Hong Kong) Ltd. v. Attorney General of Hong
Kong, [1970I AC 1136, referred to.
3.1
The constitutional process for removal of a Judge upto the point of admission
of the motion, constitution of the Committee and the recording of findings by
the Committee are not, strictly, proceedings in the Houses of Parliament.
The
Speaker is a statutory authority under the Act. Upto that point the matter
cannot be said to remain outside the Court's jurisdiction. [66 E]
3.2
The scheme of Articles 124(4) and (5) is that the entire process of removal is
in two parts - the first part, under clause (5) from initiation to
investigation and proof of misbehaviour or incapacity is covered by an enacted
law, Parliament's role being only legislative as in all the laws enacted by it,
the second part under clause (4) is in Par- liament and that process commences
only on proof of misbeha- viour or incapacity in accordance with the law
enacted under clause (5). Thus, the first part is entirely statutory, while the
second part alone is the parliamentary process.
[61 D]
3.3
The context and setting in which clause (5) appears along with clause (4) in
Article 124 indicate its nature and distinguish it from Articles 118, 119 and
121, all of which relate to procedure and conduct of business in Parliament.
[61 B-C]
3.4
The validity of law enacted by the Parliament under clause (5) of Article 124
and the stage upto conclusion of the inquiry in accordance with that law, being
governed entirely by statute, would be open to judicial review as the
parliamentary process under Article 124(4) commences only after a finding is
recorded that the alleged misbehaviour or incapacity is proved in the inquiry
conducted in accordance with the law enacted under clause (5). For this reason,
the argument based on exclusivity of Parliament's jurisdiction over the process
and progress of inquiry under the Judges (Inquiry) Act, 1968 and, consequently,
exclusion of this Court's jurisdiction in the matter at this stage does not
arise. [59 G-H, 60 A]
4.1
Article 121 suggests that the bar on discussion in Parliament with respect to
the conduct of any Judge is lifted 'upon a 9 motion for presenting an address
to the President praying for the removal of a Judge as hereinafter provided'.
The words 'motion' and 'as hereinafter provided' are obvious references to the
motion for the purpose of clause (4) of Article 124 which, in turn, imports the
concept of "proved" misbehaviour or incapacity. What lifts the bar
under Article 121 is the 'proved' misbehaviour or incapacity. Clause (5) of
Article 124 provides for an enactment of law for the purpose of investigation
and proof of misconduct or incapac- ity preceding the stage of motion for
removal on the ground of 'proved' misbehaviour or incapacity under clause (4).
[56 H, 57 A-B]
4.2 An
allegation of misbehaviour or incapacity of a Judge has to be made,
investigated and found proved in accordance with the law enacted by the
Parliament under Article 124 (5) without the Parliament being involved upto
that stage; on the misbehaviour or incapacity of a Judge being found proved in
the manner provided by that law a motion for presenting an address to the
President for remov- al of the Judge on that ground would be moved in each
House under Article 124(4); on the motion being so moved after the proof of
misbehaviour or incapacity and it being for pre- senting an address to the
President praying for removal of the Judge, the bar on discussion contained in
Article 121 is lifted and discussion can take place in the Parliament with
respect to the conduct of the Judge; and the further conse- quences would ensue
depending on the outcome of the motion in a House of Parliament. If, however,
the finding reached by the machinery provided in the enacted law is that the
allegation is not proved, the matter ends and there is no occasion to move the
motion in accordance with Article 124(4). [57 G-H, 58 A-B]
4.3
Thus prior proof of misconduct in accordance with the law made under Article
124(5) is a condition precedent for the lifting of the bar under Article 121
against dis- cussing the conduct of a Judge in the Parliament. Article 124(4)
really becomes meaningful only with a law made under Article 124(5), without
which, the constitutional scheme and process for removal of a Judge remains
inchoate. [66 F]
4.4
The bar in Article 121 applies to discussion in Parliament but investigation
and proof of misconduct or incapacity cannot exclude such discussion. This
indicates that the machinery for investigation and proof must neces- sarily be
outside Parliament and not within it. In other words, proof which involves a
discussion of the conduct of the Judge must be by a body which is outside the
limita- 10 tion of Article 121. The policy appears to be that the entire stage
upto proof of misbehaviour or incapacity, beginning with the initiation of
investigation on the alle- gation being made, is governed by the law enacted
under Article 124(5) and in view of the restriction provided in Article 121,
that machinery has to be outside the Parliament and not within it. Parliament
neither has any role to play till misconduct or incapacity is found proved nor
has it any control over the machinery provided in the law enacted under Article
124(5). Parliament comes in the picture only when a finding is reached by that
machinery that the alleged misbe- haviour or incapacity has been proved. The
Judges (Inquiry) Act, 1968 enacted under article 124(5) itself indicates that
the Parliament so understood the integrated scheme of Arti- cles 121, 124(4)
and 124(5). The general scheme of the Act conforms to this view. [58 H-59 A-D]
4.5 It
is not the law enacted under Article 124(5) which abridges or curtails the
parliamentary process or exclusivi- ty of its jurisdiction, but the
Constitutional Scheme itself which by enacting clauses (4) and (5)
simultaneously indi- cated that the stage of clause (4) is reached and the
proc- ess thereunder commences only when the alleged misbehaviour or incapacity
is proved in accordance with the law enacted under clause (5). It is only then
that the need for discuss- ing a Judge's conduct in the Parliament arises and,
there- fore, the bar under Article 121 is lifted. [60 D-E]
5.1 If
the motion for presenting an address for removal is envisaged by Articles 121
and 124(4) 'on ground of proved misbehaviour or incapacity', it presupposes
that misbeha- viour or incapacity has been proved earlier. This is more so on
account of the expression 'investigation and proof' used in clause (5) with
specific reference to clause (4), indi- cating that 'investigation and proof'
of misbehaviour or incapacity is not within clause (4) but within clause (5).
Use of
the expression 'same session' in clause (4) without any reference to session in
clause (5) also indicates that session of House has no significance for clause
(5) i.e., 'investigation and proof' which is to be entirely governed by the
enacted law and not the parliamentary practice which may be altered by each Lok
Sabha. [61 F-H]
5.2
The significance of the word 'proved' before the expression 'misbehaviour or
incapacity' in clause (4) of Article 124 is also indicated when the provision
is compared with Article 317 providing for removal of a member of the Public
Service Commission. The expression in clause (1) of Article 317 used for
describing the ground 11 of removal is 'the ground of misbehaviour' while in
clause (4) of Article 124, it is, 'the ground of proved misbeha- viour or
incapacity'.
[62 A]
5.3
Use of the word 'may' in clause (5) indicates that for the 'procedure for
presentation of address' it is an enabling provision and in the absence of the
law, the gener- al procedure or that resolved by the House may apply but the
'investigation and proof' is to be governed by the enacted law. The word 'may'
in clause (5) is no impediment to this view. When a provision is intended to
effectuate a right -- here it is to effectuate a constitutional protection to
the Judges under Article 124(4) -- even a provision as in Arti- cle 124(5)
which may otherwise seem merely enabling becomes mandatory. The exercise of the
power is rendered obligatory.
The
use of the word 'may' does not necessarily indicate that the whole of clause
(5) is an enabling provision leaving it to the Parliament to decide whether to
enact a law even for the investigation and proof of the misbehaviour or
incapaci- ty or not. [62 D, 62 G, 63 E-F] State of Uttar Pradesh v. Joginder
Singh, [1964] 2 SCR 197 at 202; Punjab Sikh Regular Motor Service, Moudhapara
v. The Regional Transport Authority, Raipur & Anr., [1966] 2 SCR 221,
referred to.
Erederic
Guilder ,Julius v. The Right Rev. The Lord Bishop of Oxford,' the Rev. Thomas
Tellusson Carter, [1879-80] 5 A.C. 214 at 244, referred to.
5.4
Similarly, use of word 'motion' to indicate the process of investigation and
proof in the Judges (Inquiry) Act, 1968, because the allegations have to be
presented to the 'Speaker' does not make it 'motion in the House' not-
withstanding use of that expression in Section 6. Otherwise, section 6 would
not say that no further step is to be taken in case of a finding of 'not
guilty'. It only means that when the allegation is not proved, the Speaker need
not commence the process under clause (4) which is started only in case it is
proved. The Speaker is, therefore, a statutory authority under the Act chosen
because the further process is parliamentary and the authority to make such a
complaint is given to Members of Parliament. Moreover, the enactment under
Article 124(5) cannot be a safe guide to determine the scope of Article 124(5).
[64 A-C]
6.1
Article 124(5) does not operate in the same field as Article 118 relating to
procedure and conduct of business in Parliament.
[61C]
12
6.2
Article 118 is a general provision conferring on each House of Parliament the
power to make its rules of procedure. These rules are not binding on the House
and can be altered by the House at any time. A breach of the rules amounts to
an irregularity and is not subject to judicial review in view of Article 122.
[64 G]
6.3
Article 124(5) is in the nature of a special provi- sion intended to regulate
the procedure for removal of a Judge under Article 124(4), which is not a part
of the normal business of the House but is in the nature of special business.
It covers the entire field relating to removal of a Judge. Rules made under
Article 118 have no application in this field. [64 H, 65 A] 6.4 Article 124(5)
has no comparison with Article 119.
Articles
118 and 119 operate in the same field viz., normal business of the House. It
was, therefore, necessary to specifically prescribe that the law made under
Article 119 shall prevail over the rules of procedure made under Article 118.
Since Articles 118 and 124(5) operate in different fields; a provision like
that contained in Article 119 was not necessary and even in the absence of such
a provision, a law made under Article 124(5) will override the rules made under
Article 118 and shall be binding on both the Houses of Parliament. A violation
of such a law would constitute illegality and could not be immune from judicial
scrutiny under Article 122(1). [65 B-C]
7.1
-Neither the doctrine that dissolution of a House passes a sponge over
parliamentary slate nor the specific provisions contained in any rule or rules
framed under Article 118 of the Constitution determine the effect of
dissolution on the motion for removal of a Judge under Article 124, because
Article 124(5) and the law made there- under exclude the operation of Article
118 in this area. [49 F] Purushothaman Nambudiri v.. The State of Kerala,
[1962] Suppl. 1 SCR 753, referred to.
7.2
The law envisaged in Article 124(5) is parliamentary law which is of higher
quality and efficacy than rules made by the House for itself under Article 118.
Such a law can provide against the doctrine of lapse. [50 H] 7.31n the
constitutional area of removal of a Judge, the law made under Article 124(5)
must be held to go a little further and to exclude the operation of the Rules
under Article 118 and no ques- 13 tion of repugnance could arise to the extent
the field is covered by the law under Article 124(5). [51 C] State of Punjab v.
Sat Pal Dang & Ors, [1969] 1 SCR 478, relied on.
8.1
The Judges (Inquiry) Act, 1968 reflects the consti- tutional philosophy of both
the judicial and political elements of the process of removal. The ultimate
authority remains with the Parliament in the sense that even if the Committee
for investigation records a finding that the Judge is guilty of the charges, it
is yet open to the Parliament to decide not to present an address to the
President for removal. But if the Committee records a finding that the Judge is
not guilty then the political element in the proc- ess of removal has no
further option. The law is, indeed, a civilised piece of legislation
reconciling the concept of accountability of Judges and the values of judicial
inde- pendence. The provisions of the Judges (Inquiry) Act do not foul with the
constitutional scheme. [65 B-C, 64 C]
8.2
The Speaker, while admitting a motion and constitut- ing a Committee to
investigate the alleged grounds of misbe- haviour or incapacity does not act as
part of the House. The House does not come into the picture at this stage. The
provisions of the Judges (Inquiry) Act, 1968 are not uncon- stitutional as
abridging the powers and privileges of the House. The Judges (Inquiry) Act,
1968 is constitutional and is intra vires. [66 G-H]
9.1
The Judges (Inquiry) Act, 1968 is law enacted under Article 124(5) which
provides against doctrine of lapse.
9.2
The effect of sections 3(1) and (2) and 6(2) of the Judges (Inquiry) Act, 1968,
is that the motion should be kept pending till the committee submits its report
and if the committee finds the Judge guilty, the motion shall be taken up for
consideration. Only one motion is envisaged which will remain pending. No words
of limitation that the motion shall be kept pending subject to usual effect of
dissolution of the House can or should be imported. [50 G]
9.3
Section 3 of the Act applies to both the Houses of Parliament. The words
"shall keep the motion pending" cannot have two different meanings in
the two different contexts.
It can
only mean that the consideration of the motion shall be deferred till the
report 14 of the Committee implying that till the happening of that event the
motion will not lapse. Therefore, such a motion does not lapse with the
dissolution of the House of Parlia- ment. [51 D]
10. At
the stage of the provisions when the Speaker admits the motion under section 3
of the Judges (Inquiry) Act, a Judge is not, as a matter of right, entitled to
a notice. The scheme of the statute and the rules made there- under by necessary
implication, exclude such a right. But that may not prevent the Speaker, if the
facts and circum- stances placed before him indicate that hearing the Judge
himself might not be inappropriate, might do so. But a decision to admit the
motion and constitute a Committee for investigation without affording such an
opportunity does not, by itself and for that reason alone, vitiate the deci-
sion. [68 E-G]
11.1
It is true that society is entitled to expect the highest and most exacting
standards of propriety in judicial conduct, and any conduct which tends to
impair public confi- dence in the efficiency, integrity and impartiality of the
court is indeed forbidden. But, the proposition that, apart from the
constitutional machinery for removal of a Judge, the judiciary itself has the
jurisdiction and in appropriate cases a duty to enquire into the integrity of
one of its members and restrain the Judge from exercising judicial functions is
beset with grave risks. The court would then indeed be acting as a tribunal for
the removal of a Judge and is productive of more problems than it can hope to
solve. [69 C, 70 H] Sampath Kumar & Ors. v. Union of India & Ors,
[1985] 4 S.C.C. 458, referred to.
Corpus
Juris Secundum, (VoI.48A), referred to.
11.2
The relief of a direction to restrain the Judge from discharging judicial
functions cannot be granted. The entire Constitutional Scheme, including the
provisions relating to the process of removal of a Judge are to be taken into
account for the purpose of considering this aspect. Since the Constitutional
Scheme is that the Judge's conduct cannot be discussed even in the Parliament
which is given the substantive power of removal, till the alleged misconduct or
incapacity is 'proved' in accordance with the law enacted for this purpose, it
is difficult to accept that any such discussion on the conduct of the Judge or
any evaluation or inference as to its 15 merit is permissible according to law
elsewhere except during investigation before the Inquiry Committee constitut-
ed under the statute for this purpose. Therefore, it is difficult to accept
that there can be any right in anyone running parallel with the Constitutional
Scheme for this purpose contained in clauses (4) and (5) of Article 124 read
with Article 121. No authority can do what the Constitution by necessary
implication forbids. [71 B-F]
11.3
The question of propriety is, however, different from that of legality. Whether
the Judge should continue to function during the intervening period is to be
covered by the sense of propriety of the concerned Judge himself and the
judicial tradition symbolised by the views of the Chief Justice of India. It
should be expected that the Judge would be guided in such a situation by the
advice of the Chief Justice of India, as a matter of convention, unless he
himself decided as an act of propriety to abstain from discharging judicial
functions during the interregnum. It is reasonable to assume that the framers
of Constitution had assumed that a desirable convention would be followed by a
Judge in that situation which would not require the exercise of a power of
suspension.[It would also be reasonable to assume that the Chief Justice of
India is expected to find a desirable solution in such a situation to avoid
embarrass- ment to the concerned Judge and to the Institution in a manner which
is conducive to the independence of judiciary and should the Chief Justice of
India be of the view that in the interests of the institution of judiciary it
is desira- ble for the Judge to abstain from judicial work till the final
outcome under Article 124(4), he would advise the Judge accordingly, and the
concerned Judge would ordinarily abide by the advice of the Chief Justice of
India. All this is, however, in the sphere of propriety and not a matter of
legal authority to permit any court to issue any legal directive t? the Chief
Justice of India for this purpose.
[71 G,
72 A, C-E]
12.
Even on the allegations made in the petition and plea of malafides which
require to be established on strong grounds no such case is made out. A case of
malafides cannot be made out merely on the ground of political affiliation of
the Speaker either. That may not be a sufficient ground in the present context.
At nil events, as the only statutory authority to deal with the matter,
doctrine of statutory exceptions or necessity might be invoked. [74 B-C]
13.
The law as to standing to sue in public interest actions has 16 undergone a
vast change over the years and liberal standards for determining locus standi
are now recognised. The present matter is of such nature and the constitutional
issues of such nature and importance that it cannot be said that members of the
Bar, and particularly, the Supreme Court Bar Association have no locus standi
in the matter. An elaborate re-survey of the principles and precedents over
again is unnecessary. Suffice it to say that from any point view, the
petitioners satisfy the legal requirements of the standing to sue. [74 E-F] S.P.
Gupta & Ors. etc. etc. v. Union of India & Ors.
etc.
etc., [1982] 2 SCR 365, relied on.
14.
Certain submissions advanced on the prayer seeking to re.strain the judge from
functioning till the proceedings of the committee were concluded lacked as much
in propriety as in dignity and courtesy with which the Judge is entitled.
While
the members of the bar may claim to act in public interest, they have, at the
same time, a duty of courtesy and particular care that in the event of the
charges being found baseless or insufficient to establish any moral turpi-
tude, the Judge does not suffer irreparably in the very process. The approach
should not incur the criticism that it was calculated to expose an able and
courteous Judge to public indignity even before the allegations were examined
by the forum constitutionally competent to do so. The level of the debate both
in and outside the Court should have been more decorous and dignified.
Propriety required that even before the charges are proved in the only way in
which it is permitted to be proved, the Judge should not be embarrassed.
The
constitutional protection to Judges is not for their personal benefit; but is
one of the means of protecting the judiciary and its independence and is,
therefore, in the larger public interest. Recourse to constitutional methods
must be adhered to if the system were to survive. [74 G, 75 A-C]
15.1
The interpretation of the law declared by this Court that a motion under
section 3(2) of the Judges (In- quiry) Act, 1968, does not lapse upon the
dissolution of the House is a binding declaration. If the law is that the
motion does not lapse, there can be no occasion for the House to say so at any
time and it is erroneous to assume that the Houses of Parliament would act in
violation of the law, since the interpretation of the law is within the exclusive
power of the courts. [76 E] 17
25.2
If the House is not required to' consider this question since the parliamentary
process can commence only after a finding of guilt being proved, the further
question of a futile writ also does not arise. The point that the House can
decide even after a finding of guilt that it would not proceed to vote for
removal of the Judge is not germane to the issue since that is permissible in
the Constitutional Scheme itself under Article 124(4), irrespective of the fact
whether Article 124(5) is a mere enabling provision or a constitutional
limitation on the exercise of power under Article 124 (4). [60 B-C]
15.3
The Union Government has sought to interpret the legal position for purpose of
guiding its own response to the situation and to regulate its actions on the
Speaker's decision. That understanding of the law is unsound. [76 G]
15.4
No specific writ of direction need issue to any authority. Having regard to the
nature of the subject matter and the purpose it is ultimately intended to
serve, all that is necessary is to declare the legal and correct constitu-
tional position and leave the different organs of the State to consider matters
falling within the orbit of their re- spective jurisdiction and powers. [76 H,
77 A]
15.5
In the circumstances, the question of Court de- clining to exercise its
jurisdiction on the ground that the Judgment rendered and Writ issued by it
would become infruc- tuous does not arise. [31 A-C, 77 A] Per Sharma, J.
(dissenting);
1.1 On
a close examination of the Constitution, it is clear that a special pattern has
been adopted with respect to the removal of the members of the three organs of
the State. The Executive, the Legislature 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 should be that
when 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 other than where the problem has arisen, to be decid-
ed. Consistent with this pattern, Clause (4) of Article 124 in emphatic terms declares
that a Judge of the Supreme Court or the High Court shall not be removed from
his office except on a special majority of the Members of each House of
Parliament. Both the Executive and the Judiciary 18 are thus excluded in this
process. The scheme cannot be construed as lack of trust in the three organs of
the State.
There
are other relevant considerations to be taken into account while framing and
adopting a written Constitution, which include the assurance to the people that
the possibil- ity 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 in the instant case. [81 F-H, 82 D-E,F-G] A11
Party Hill Leaders Conference v. M.A. Sangma, [1978] 1 SCR 393 at 411, referred
to.
The
Federalist: Hamilton, referred to.
1.2
There cannot be two opinions 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.
Great
care was taken by the framers of the Constitution to this aspect and the matter
was examined from every possible angle, before adopting the scheme as laid
down. 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 the High Court
and Supreme Court Judges, it was considered adequate for the maintenance of
their independ- ence to adopt and enact the Constitution as it is found now.
There
is no reason to doubt the wisdom of the Constituent Assembly in entrusting the
matter exclusively in the hands of the Parliament and there is no 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. The mandate of the Constitution is binding on all. [100 B-E]
2.1
The exercise of power under clause (4) was not made conditional on the
enactment of a law under clause (5), and the reason for inserting clause (5) in
Article 124 was merely for elaborating the provisions. Clause (4) does not
state that the misbehaviour or the 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 19 amendment if clause (5) were to be removed from the Consti-
tution today. There is no indication of any limitation on the power of the
Parliament to decide the manner in which it will obtain a finding on
misbehaviour 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. [88 E, 88 A, 89 A]
2.2
The word 'may' has been sometimes understood in the imperative sense as
'shall', but ordinarily it indicates a choice of action and not a command. In
the present context, there is no reason to assume that it has been used in its
extraordinary meaning. [88 F]
3. The
object of Article 121 is to prevent any discus- sion 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. [89
B]
4.1
The expression "motion" has not been defined in the Judges (Inquiry)
Act, 1968. The Lok Sabha Rules framed under Article 118 of the Constitution
deal with "motions". There are separate rules of procedures for
conduct of business adopted by the Rajya Sabha. Section 3(1) of the Act states
that if a notice of "motion" is given for presenting an address to
the President for the removal of a Judge, the Speaker or the Chairman, as the
case may be, after consult- ing such persons as he deems fit, as also such
relevant materials 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 understood in the context of the two
Houses of Parliament attracting their respective rules. Section 3 does not
speci- fy as to how and to whom the notice of "motion" is to be
addressed or handed over and it is not quite clear as to how the Speaker
suddenly comes in the picture unless the Lok Sabha Rules are taken into
account. Therefore, the provi- sions of the Act have to be read alongwith some
of the Lok Sabha Rules. Rules 185, 186 and 137 which are relevant for the
purpose should be treated to be supplementary to the Act. [90 D-G, 91 B]
4.2
Sub-section (2) of Section 3, which is of vital importance in the present
context, says that if the "motion" referred to in subsection (1) is
admitted, the Speaker "shall keep the motion pending" 20 and
constitute a Committee for investigation into the alle- gations. 191 C]
4.3
The situs where the "motion" is pending is almost conclusive on the
issue whether the House is seized of it or not. The Act does not leave any room
for doubt that the "motion" remains pending in the House and not
outside it.
This
is corroborated by the language used in proviso to Section 3(2) which deals
with cases where notices of "mo- tion" 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 both Houses", and where such "motion" has
been admitted "in both Houses", the Committee shall be constitut- ed
jointly by the Speaker and the Chairman. It is not an inadvertent reference in
the Act of the "motion" being pending in the House: the Act and the
Rules made thereunder 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 used on this premise and is
not capable of being ignored or explained away. [91 D, G-H, 92 A, C-D]
4.4
The scope of the Act and the Rules is limited to the investigation in pursuance
of a "motion" admitted by the Speaker. At the conclusion of the
investigation the Commit- tee has to send the report to the Speaker (or the
Chairman as the case may be) along with a copy of the original Mo- tion. If the finding goes against the Judge, the
Motion, the same original Motion, together with the report would be taken up
for consideration by the House where the Motion is pending, and the address and
the Motion would be put to vote together in each House of Parliament. What the
Act and the Rules contemplate is the original Motion to be taken up for
consideration by the House, and if this Motion is held to have exhausted itself
on admission by the Speaker nothing remains on which the Act would operate. [92
E, G]
4.5
Thus, the concept of the original Motion 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 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 21 the
Act. Bereft of the same, the Act does not survive. It is, therefore, not
permissible to read the Act so as to mean that the House is not seised of the
Motion and that it does not have anything to do with the inquiry pending before
the Committee, until the report is received. If clauses (4) and (5) of Article
124 are construed otherwise the Act will have to be struck down as ultra vires,
or in any event, inopera- tive and infructuous and, on this ground alone, the
Writ Petitions are liable to be dismissed. [92 H, 93 A-B]
5.1
The mandate of the Constitution 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 en- force it. He has to ensure that Article 121 is obeyed in terms
and spirit. The pendency of the motion in the House cannot be a ground to
violate Article 121, and the apprehen- sion that if the motion is held to be
pending in the House, on its admission, the object of Article 121 would be
defeat- ed is misconceived. [93 C, F]
5.2
The wider proposition that the House was seized of the matter so effectively as
to entitle every member to demand a discussion in the House at any stage will
not only violate Article 121, but also offend the provisions 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 consequence will be to deprive
the Parliament of the control of the motion. The Speaker may consult 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
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 ques-
tion, as for example, the issue involved in the instant 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 relating 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. [95 E-H, 96A]
5.3
There is no justification for interpreting such portion of the 1968 Act, which
directed or declared the initial motion admitted by the Speaker to remain
pending in the House, as creating legal fiction limited for the purpose of
ensuring that the bar under Article 121 was not lifted prematurely. [96 B] 22 East End Dwellings Co. Ltd. And Finsbury Borough Coun- cil: 1952 A.C. 109,
referred to.
5.4 A
close reading of the entire Act indicates that the language therein was
consciously chosen to make the House seized of the matter, and consequently it
became necessary to include the provision directing the motion to remain
pending for the purpose of preventing a premature discus- sion. The Act has,
thus, very successfully respected both Articles 124 and 121 in their true
spirit, by neatly harmo- nising them. [97 B]
5.5
Parliament is in control of the matter from the very beginning till the end. By
the introduction of the Speaker and the requirement of a large number of
members of either House to initiate the matter, the House is brought in con-
trol of the proceeding through its representative, the Speaker or the Chairman.
The ground of proved misbehaviour or incapacity is necessary only for putting
the matter to vote in the House under clause (4), and is not a condition
precedent for initiating a proceeding and taking further steps in this regard. ]97
G-H, 98 A]
5.6 It
is a well established practice for a larger body to entrust investigations to a
smaller body for obvious practical reasons, and such an exercise cannot be
characte- rised 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. [98 D]
5.7 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
abdica- tion of power. It is a case where the Parliament has taken a decision
to respect the verdict of the Committee in favour of the Judge, consistently
with clause (4) and no fault can be found. 199 B] State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Anr.,
[1978] 2 SCC 102, referred to.
5.8
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 it is held that the Committee is an independent statutory body not subject
to the control of the House 23 directly or through the Speaker, then the Act
may be ren- dered unworkable. Besides, this would lower the dignity of the
Chief Justice of India by providing a machinery consist- ing of 5 or 4 Judges
to sit in ,appeal over him. 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, it will be the Parliament which
will be in control of the proceeding and not the Committee. [99 E-F, H]
6.1
When even after a verdict 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 would not have any
jurisdiction to interfere in the matter, it is not conceivable, that at the
intermediate stage of investigation the Court has got the power to intervene.
This is because, 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 jurisdic- tion, which may result in issuance of
contradictory direc- tions. 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 situation, embarrassing both
for the highest judicial and legislative authorities of the country. The
Constitution cannot be attributed with such an intention. [101 A-C]
6.2 In
the circumstances the courts, including this Court, do not have any
jurisdiction to pass any order in relation to a proceeding for removal of a Judge
of the superior courts. [101 C]
7. No
opinion is expressed 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.
[102 E]
8.
This Court cannot pass any order whether permanent or temporary on the prayer
that the respondent No. 3, the concerned Judge, should not be allowed to
exercise his judicial powers. [102 F]
9.1
Although the powers of State have been distributed by the Constitution amongst
the three limbs, i.e. the Legis- lature, 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.
[80F-G]
24 Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 347 at p. 415, referred to.
9.2
Generally, questions involving adjudication of disputes are amenable 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. [81 C]
10. It
is permissible to take into consideration the entire historical background of
the provisions of the Con- stitution and the Act as aid to interpretation. [84
C] Bengal Immunity Company v. The State of Bihar, [1955] 2 SCR 603 at 632 & 633; B. Prabhakar Rao v. State of Andhra Pradesh, [1985] Suppl 2 SCR 573, referred
to.
Heydon's
case: 76 E.R. 637; Eastman Photographic Materi- al Company v. Comptroller
General of Patents, LR. [1898] A.C. 571, referred to.
ORIGINAL
JURISDICTION: Writ Petition (Civil) No. 491 of 1991. (Under Article 32 of the
Constitution of India)
WITH TRANSFER
PETITION (CIVIL) No, 278 of 1991. (Under Article 139-A(i) of the Constitution
of India)
WITH WRIT
PETITION (CIVIL) Nos. 541,542 & 560/91 G. Ramaswamy, Attorney General,
Altar Ahmad, Addl. Solicitor General, Shanti Bhushan, Ram Jethmalani, P.P.
Rao, Kapil Sibal, P.R.Krishnan, Ms. Indira Jaisingh, Ashok Desai, Hardev Singh,
P.S. Poti, Danial Latifi, Rajinder Sachhar, M.K. Ramamurthy, R.K. Garg, S.K.
Dholakia, Santosh Hegde, V.N. Ganpule, Tapas Ray, N.B. Shetye, Jayant Bhushan,
Mohan Rao, Prashant Bhushan, Ms. Kamini Jaiswal, A.K. Srivastava, Manoj Wad,
Ms. Rashmi Kathpalia, Ms. Nina Dikshit, E.M.S. Anam, Rajiv K. Garg, N.D. Garg,
G.D. Sharma, Sudhir Walia, A.M. Khanwilkar, Mrs. Anil Katiyar, Ms. A.
Subhashini, R.S. Suri, M. Veerappa, K.R. Nambiar, Harish Uppal (appeared in
person) and P.H. Parekh for the appearing parties.
The
Judgment of the Court was delivered by B.C. RAY, J. These writ petitions raise
certain consti- tutional issues of quite some importance bearing on the
construction of Articles 121 and 124 of the Constitution of India and of the
"The Judges 25 (Inquiry) Act, 1968" even as they in the context in
which they are brought, are somewhat unfortunate.
Notice
was given by 108 members of the 9th Lok Sabha, the term of which came to an end
upon its dissolution, of a Motion for presenting an Address to the President
for the removal of Mr. Justice V.Ramaswami of this Court. On 12th March, 1991,
the motion was admitted by the then Speaker of the Lok Sabha who also proceeded
to constitute a Committee consisting of Mr. Justice P.B. Sawant, a sitting
Judge of this Court, Mr. Justice P.D. Desai, Chief Justice of the High Court of
Bombay, and Mr. Justice O. Chinappa Reddy, a distinguished jurist in terms of
Section 3(2) of The Judges (Inquiry) Act, 1968.
The
occasion for such controversy as is raised in these proceedings is the refusal
of the Union Government to act in aid of the decision of the Speaker and to
decline to notify that the services of the two sitting Judges on the Committee
would be treated as "actual-service" within the meaning of Para 11(b)
(i) of Part D of the II Schedule to the Constitu- tion. It is said that without
such a notification the two sitting Judges cannot take time off from theft
court-work.
The
Union Government seeks to justify its stand on its understanding that both the motion
given notice of by the 108 Members of the Lok Sabha for presenting an Address
to the President for the removal of the Judge concerned as well as the decision
of the Speaker of the 9th Lok Sabha to admit the motion and constitute a
Committee under the provisions of the Judges (Inquiry) Act have lapsed with the
dissolution of the 9th Lok Sabha.
Constitutional
issues of some importance, therefore, arise as to the constitutional and the
legal position and status of a Motion for the removal of a Judge under a law
made pursuant to Article 124(5) of the Constitution and as to whether the
Doctrine of Lapse would apply to such a Motion upon the dissolution of the Lok
Sabha and whether, in view of the contention that such motions for removal, im-
peachment etc. of holders of high constitutional offices are in their very
nature politically introduced, debated and decided in the Houses of Parliament
and not elsewhere, the matters arising out of or relating to a Motion for
removal of a Judge in either House of the Parliament are at all justiciable
before courts of law. It is also-urged that even if these issues have some
degree of adjudicative disposition and involve some justiciable areas, the
Court should decline to exercise jurisdiction as its decision and its writ
might become infructous in view of the fact that in the ultimate analysis, the
final arbiter whether at all any Address is to be presented rests exclusively
with the Houses of Parliament and which, are wholly outside the purview of the
Courts.
26
2. The
foregoing serves to indicate broadly the com- plexities of the constitutional
issues on which the Court is invited to pronounce and, as in all constitutional
litiga- tion, the views inevitably tend to reflect a range of policy options in
constitutional adjudications and, in some meas- ure, value judgments.
3.
Writ Petition No. 491 of 1991 is by a body called the "SubCommittee on
Judicial Accountability" represented by its convener, Sri Hardev Singh, a
Senior Advocate of this Court. Petitioner-body claims to be a Sub-Committee
consti- tuted by an "All India Convention on Judicial Accountabili-
ty" "to carry forward the task of implementing the resolu- tions of
the conventions". Writ Petition No. 541 of 1991 is by the Supreme Court Bar
Association represented by its Honorary Secretary. The Bar Association seeks to
prosecute this petition "in the larger public interest and in particu- lar
in the interests of litigant public". The two prayers common to both the
petitions are, first, that the Union of India be directed to take immediate
steps to enable the Inquiry Committee to discharge its functions under the
"The Judges (inquiry) Act, 1968" and, secondly, that during the
pendency of the proceedings before the Committee the learned Judge should be
restrained from performing judicial func- tions and from exercising Judicial
powers.
4.
Writ Petition No. 542 is by a certain Harish Uppal.
This
writ petition is more in the nature of a counter to the second prayer in the WP
No. 541/1991 and WP No. 491/1991.
Petitioner,
Sri Harish Uppal says that till the Inquiry Committee actually finds the
learned Judge guilty of the charges there should be no interdict of his
judicial func- tions and that if such a finding is recorded then thereafter
till such time as the Motion for the presentation of the Address for the
removal of the Judge disposed of by the Houses of Parliament-which petitioner
says should not be delayed beyond 180 days --- the President may ask the Judge
concerned to recuse from judical functions.
In
Writ Petition No. 560/1991 brought by Shyam Ratan Khandelwal, a practising
Advocate, the constitutional valid- ity of the Judges (Inquiry) Act, 1968 is
challenged as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Consti-
tution of India. It also seeks a declaration that
the Motion presented by 108 Members of Parliament for the removal of the Judge
has lapsed with the dissolution of the 9th Lok Sabha. It also seeks quashing of
the decision of the Speaker admitting the Motion on the ground that an opportunity
of being heard had been denied to the Judge before the Speaker admitted the
Motion and proceeded to constitute a Committee.
On the
question of the validity of The Judges (Inquiry) Act, 27 1968 the petitioner
contends that the law properly construed vests the powers of admitting a Motion
and of constituting a Committee under Section 3 in the Speaker in his capacity
as Speaker of the House and subject to the well known and well settled
principles of law. procedure and conventions of the Houses of Parliament and
the statute does not depart from these principles. On the contrary, the statute
admits of a construction which accords with the powers and privileges of the
House and that the Motion even at that stage of admis- sion would require to be
debated by the House. It is urged that if that be' the construction, which the
language of the statute admits then there should be no vice of unconstitu-
tionality in it. But if the statute is construed to vest such power exclusively
in the Speaker, to the exclusion of the House, the statute, on such
constitution would be uncon- stitutional as violative of Articles 100 (1),
105,118 and 121 of the Constitution.
4.
Transfer Petition No. 268/1991 is for the withdrawal by this Court to itself
from the High Court of Delhi, the Writ Petition (Civil) No. 1061/1991 in the
Delhi High Court where reliefs similar to those prayed for by Sri Khandelwal in
WP (Civil) No. 560/1991 are sought. The prayer for trans- fer has not yet been
granted; only the further proceedings in the High Court are stayed. But
full-dress arguments in all these matters have been heard. It is appropriate
that this writ petition should also be formally withdrawn and finally disposed
of along with the present batch of cases.
All
that is necessary is to make a formal order withdrawing WP (Civil) No.
1061/1991 from the Delhi High Court, which we hereby do.
5.
Certain allegations of financial improprieties and irregularities were made
against Justice V. Ramaswami, when he was the Chief Justice of the High Court
of Punjab & Haryana. There were certain audit reports concerning certain
items of purchases and other expenditure. The then Chief Justice of India,
Justice Sabyasachi Mukharji, took note of the reports in this behalf and of
representations submitted to him in this behalf and advised Justice Ramaswami
to abstain from discharging judicial functions until those allegations were
cleared. Thereafter, a Committee of three Judges was constituted by the then
Chief Justice of India, to look into the matter and to advise him whether on
the facts Justice Ramaswami might be embarrassed in discharging judicial
functions as a Judge of this Court. The Committee tendered its advice to the
Chief Justice. It noted that Justice Ramaswami had declined to acknowledge the
jurisdic- tion of any Committee to sit in judgment over his conduct.
The
Committee, accordingly, abstained from an inquiry on the charges but. on an
evaluation of the matter before it, expressed the view that as long as the
charges of 28 improper conduct involving moral turpitude were not estab- lished
in the various enquiries then pending the operation of the constitutional
warrant appointing him a Judge of the Court could not be interdicted.
Thereafter,
in February, 1991, 108 Members of the Lok Sabha presented a Motion to the
Speaker of the 9th Lok Sabha for Address to the President for the removal of
the learned Judge under Article 124(4) of the Constitution read with the
provisions of the Judges (inquiry) Act, 1968. On 12.3.1991 the Speaker of the
Lok Sabha in purported exercise of his powers under Section 3 of the said Act,
admitted the Motion and constituted a Committee as aforesaid to investigate the
grounds on which the removal was prayed for.
Soon
after the decision of the Speaker to admit the Motion and constitute a
Committee to investigate the charges was made, the term of the Ninth Lok Sabha
came to premature end upon its dissolution. The petitioners question the
legality of the Speaker's order and assert that, at all events, the Motion had
lapsed with the dissolution of the House. This contention is supported by the
Union of India.
They
say that the effect of dissolution of the Ninth Lok Sabha is to "pass a
sponge across the Parliamentary slate" and all pending motions lapse. The
motion for removal, it is urged, is no exception.
6. 'We
have heard Sri Shanti Bhushan, Sri Ram Jethmala- ni, Sri P.P. Rao, Sri R.K.
Garg and Ms. Indira Jaising - learned senior counsel in support of the prayers
in writ petitions Nos. 491 and 541 of 1991 filed by the Sub-Commit- tee on
Judicial Accountability and the Supreme Court Bar Association respectively; Sri
G. Ramaswamy, learned Attorney General for the Union of India; Sri Kapil Sibal
for the petitioners in writ petition No. 560/91 and transfer peti- tion No.
278/91. Sri Harish Uppal, petitioner in-person in writ petition No. 542/91 has
filed his written submissions.
The
arguments of the case covered a wide constitutional scheme relating to the
removal of members of the superior judiciary in India and tO the problems of justiciability of disputes arising
therefrom. We shall refer to the arguments when we assess the merits of these
contentions.
7. The
contentions urged at the hearing in support of the petitions which seek
enforcement of Speaker's decision as well as those urged in support of the
petitions which say that the Motion has lapsed can be summaried thus:
29
Contention A: The motion for removal of the Judge moved by 108 Members of
Parliament as well as the purported decision of the Speaker to admit that motion
and to constitute a committee to investigate into the grounds on which removal
is sought have lapsed upon the dissolution of the 9th Lok Sabha. The general
rule is that no House of Parliament can seek to bind its successor. All pending
business at the time of dissolution of House lapses. A motion for removal of a
judge is just another motion and perishes with the expiry of the term or the
earlier dissolution of the House.
The
question whether the motion for the remov- al of the judge has lapsed or not is
a matter pertaining to the conduct of the business of the House of which the
House is the sole and exclusive judge. No aspect of the matter is justiciable
before Court.
Contention
B:
The
constitutional process of removal of a Judge, both in its substantive and
procedural aspects, is a political process within the exclusive domain of the
Houses of Parliament.
The
conduct of the Speaker in regulating the procedure and business of the House
shall not be subject to the jurisdiction of any Court.
The
Speaker of the Lok Sabha in the exercise of his powers under the Judges
(Inquiry) Act, 1%8, acts in an area outside the courts' jurisdiction. There is
nothing in the Judges (Inquiry) Act, 1968 which detracts from this doctrine of
lapse. On the contrary, the provi- sions of the 'Act' are consistent with this
Constitutional position.
Contention
C:
Article
124(5) pursuant to which the Judges (Inquiry) Act, 1968, is a mere enabling
provi- sion. Prior 'proof of misconduct is not a condition precedent before the
bar under Article 121 against the discussion of the conduct of the Judge is
lifted.
Contention
D:
The
action of the Speaker in admitting the notice of motion without reference to
the House and constituting a committee for inves- tigation without the support of
the decision of the 30 House is ultra vires Articles 100(1), 105, 121 and the
rules made under Article 118 of the Constitution.
The
provisions of the Judges (inquiry) Act;
1968
can be read consistently with the Consti- tutional Scheme under the aforesaid
Articles.
But if
the provisions of the Act are so con- strued as to enable the Speaker to
exercise and perform those powers and functions without reference to and
independently of the House, then the provisions of the Act would be uncon-
stitutional.
Contention
E.
The
decision of the Speaker to admit the motion and to constitute a committee for
investigation is void for failure to comply with the rules of natural justice
as no oppor- tunity, admittedly, was afforded to the Judge of being heard
before the decision was taken.
Contention
F.' The process of
removal by means of a motion for address to the President is a political
remedy. But the fundamental right to move the Supreme Court for enforcement of
fundamental rights take within its sweep the right to access to a court
comprising of Judges of sterling and unsullied reputation and integri- ty which
is enforceable. This judicial remedy is independent of the constitutional
remedy and that the court has jurisdiction to decide as to its own proper constitution.
In exercise of this jurisdiction it should examine the grounds of the alleged
misbehaviour and re- strain the Judge from judicial functioning.
Contention
G.' The Speaker's
decision is vitiated by mala fides and oblique and collateral motives.
Contention
H.' The Supreme
Court Bar Association and the Sub-Committee on Judicial Accountability - the
petitioners in Writ Petition No. 491 of 1991 and Writ Petition No. 541 of 1991,
respective- ly, do not have the requisite standing to sue and the writ petitions
are, accordingly, not maintainable at their instance.
31
Contention L' At all events, even if the Speaker is held to be a statutory
authority acting under the Statute and not as part of the proceedings or
business of the Lok Sabha and is amenable to the jurisdiction of the Court, any
judgment rendered and writ issued by this Court have the prospect of being
infructuous in view of the undisputed constitutional position that, in the
ultimate analysis, the decision to adopt or turn down the motion is exclusively
within the power of the House and the Court would have no jurisdiction over
that area.
The
Court would, therefore, decline to exercise its jurisdiction on grounds of
infructuousness.
8.
Before we discuss the merits of the arguments it is necessary to take a
conspectus of the constitutional provi- sions concerning the judiciary and
its.independence. hi interpreting the constitutional provisions in this area
the court should adopt a construction which strengthens the foundational
features and the basic structure of the Consti- tution. Rule of law is a basic
feature of the Constitution which permeates the whole of the Constitutional
fabric and is an integral part of the constitutional structure. Inde- pendence
of the judiciary is an essential attribute of Rule of law. Articles 124(2) and
217(1) require, in the matter of appointments of Judges, consultation with the
Chief Jus- tices. These provisions also ensure fixity of tenure of office of
the Judge. The Constitution protects the salaries of Judges. Article 121
provides that no discussion shall take place in Parliament with respect to the
conduct of any Judge of the Supreme Court or of a High Court in the dis- charge
of his duties except upon a motion for presenting an address to the President
praying for the removal of the Judge as hereinafter provided. Articles 124(4)
and 124(5) afford protection against premature determination of the tenure.
Article i 24(4) says "a Judge of the Supreme Court shall not be removed
from his office except" etc. The grounds for removal are again limited to
proved misbehaviour and incapacity. It is upon a purposive and harmonious con-
struction and exposition of these provisions that the issues raised in these
petitions are to be resolved.
9. In
construing the Constitutional provisions the law and procedure for removal of
Judges in other countries afford a background and a comparative view. The
solution must, of course, be found within our own Constitutional Scheme. But a
comparative idea affords a proper perspective for the understanding and
interpretation of the Constitu- tional Scheme.
32
10. In
England a Judge of the superior courts can
be removed only on presentation of an address by both the Houses of Parliament
to the Crown. Proceedings may be initi- ated by a petition to either House of
Parliament for an address to the Crown or by a resolution for an address to the
Crown to appoint a committee of inquiry into the conduct of the person
designated, though preferably they should be commenced in the House of Commons.
Sometimes [as in Barring- tons Case (1830)], a Commission of Inquiry is
appointed and the matter is considered in the light of the report of the said
Commission. The motion for removal is considered by the entire House. In case
any enquiry is to be conducted into the allegations, it is either referred to a
Select Committee of the House or to the Committee of the whole House Opportu-
nity is given to the Judge whose conduct is impugned to make defence on public
inquiry.
The
report of the Committee and its recommendation are placed before the House
where the matter is debated.(See: Halsbury's Laws of England, 4th Ed. Vol. p.
1108).
11.
This process has been subjected to following criticism - (i) legislative
removal is coloured by political partisanship inasmuch as the initia- tion of
the process as well as the ultimate result may be dictated by political
considera- tions and process of fact-finding and deliber- ations also suffer
from party spirit.
(ii) the
government has considerable control not only on the ultimate result of the pro-
ceedings but also on parliamentary time which enables them to prevent motions
for an address from being adopted if it suits them.
(iii) the
legislative procedure is not adequate for adjudicative fact finding; and (iv)
since Parliament is the master of its own procedure, the procedures and rules
of evidence appropriate to judicial proceedings which would seem to be required
in a case of judicial removal are unlikely to be allowed in Parliament. (See:
Shetreet - Judges on Trial (1976) p. 405-407)
12.
The Justice Sub-Committee on the Judiciary consid- ered the question whether
the existing process for removal by address of the Houses should be substituted
for or sup- plemented by a new mechanism designed to meet changing needs and
conditions. The Sub-Committee, in its 1972 Report, answered the said question
in the affirmative and has pro- posed a new procedure for removal of judges.
The Sub-Commit- tee has recommended the establishment of an adhoc judicial
commission to be ap- 33 pointed by the Lord Chancellor, if he decides that the
question of removing a judge is to be investigated. The Commission should
include a majority of, and in any event not less than three, persons who hold
or have held high judicial office. Members of Parliament or persons who hold or
have held any political appointment would be excluded.
Upon
completing its inquiry the ad hoc Commission shall report the facts and
recommend whether the question of removal of a judge should be referred to the
Judicial Com- mittee of the Privy Council. If the Commission so recommend- ed,
the Privy Council would consider the matter and if it concluded that the judge
should be removed, it would so advise Her Majesty. [see: Shetreet 'Judges on
Trial', (1976); pp. 404-405].
Dr.
Shetreet has suggested a via-media and has favoured the establishment of a
Judicial Commission for removal (but not for discipline short of removal) along
the lines sug- gested by the Sub-Committee but has expressed the view that the
existing process of address should also be preserved.
[See:
Shetreet 'Judges an Trial', (1976); p. 409]. Similar view has been expressed by
Margaret Brazier. (See: Rodney Brazier 'Constitutional Texts' (1990)
pp.606-607).
13. In
Canada, under section 99(1) of the
Constitution Act of 1867, the judges of the superior courts hold office during
good behaviour, and are removable by the Governor- General on address of the
Senate and House of Commons. On petition for removal submitted in 1868 and 1874
the matter was referred to a Select Committee of the House. In a third case in
1874 the judge died before any action could be taken on motion for appointment
of a Select Committee. Recently in 1966-67, a motion for removal of Mr. Justice
Leo Landreville of the Supreme Court of Ontario was moved and in that con-
nection a Royal Commission consisting of Mr. Justice Ivan C.
Rand,
a retired judge of the Supreme Court of Canada was appointed under the
Inquiries Act R. S. C. 1952 C. 154 to conduct an enquiry. After considering the
report of the said Commission, a Joint Committee of the Houses recommended
removal but the judge resigned while Parliament was prepar- ing for his removal
by joint address. Thereafter, Judges Act was enacted in 1971 whereby Canadian
Judicial Council has been created. The functions of the said Council as set out
in s. 39(2) include making the enquiries and the investiga- tion of complaints
or allegations described in s. 40. Sec- tion 40 provides that the council may
conduct an enquiry to determine whether a judge of superior, district or county
court should be removed from office and it may recommend to the Minister of
Justice of Canada that a Judge should be removed from office. The grounds on
which such a recommenda- tion can be made are set out in s. 41(2) of the Act
and they are: (a) age or infirmity, Co) having been 34 guilty of misconduct,
(c) having failed in the due execution of his office, or (d) having been
placed, by his conduct or otherwise, in a position incompatible with the due
execution of his office. (Gall 'The Canadian Legal System' ( 1983 ); pp.
184-186).
In
1'982 the matter of Mr. Justice Thomas Berger, a Judge of the Supreme Court of
British Columbia, was investi- gated by the Canadian Judicial Council prompted
by certain remarks made by the judge. The Council concluded that the public
expression of political views in the nature of those made by Mr. Justice Berger
constituted an "indiscretion", but that they were not a basis for a
recommendation that he be removed from office and on the basis of the said
recom- mendation, no further action was taken though Mr. Justice Berger
tendered his resignation as a judge a few months later. (See: Gall.' The
Canadian Legal System, (1983) p. 189)
14.
Under section 72(ii) of the Commonwealth of Austra- lia Constitution Act, 1900,
the justices of the High Court and of the other courts created by the
Parliament cannot be removed except by the GovernorGeneral-in-Council, on an
address from both Houses of the Parliament in the same session praying for such
removal on the ground of proved misbehavior or incapacity. Similar provisions
are contained in the Constitutions of the States with regard to removal of
Judges of State Courts.
Proceedings
were initiated for removal of Mr. Justice Murphy of the High Court of Australia
in 1984 under section 72(ii) of the Commonwealth of Australia
Constitution Act. In
connection with those proceedings at first a select Commit- tee of the Senate
was appointed to enquire and report into the matter. It consisted of six
senators drawn from three political parties. The Committee by majority decision
(3: 2, one undecided) found no conduct amounting to misbehaviour under section
72(ii). In view of the split vote a second Committee of four senators from the
same three political parties was established and it was assisted by two retired
judges - one from the Supreme Court of Western Australia and the other from
Supreme Court of the Australian Capital Territory and the said Committee
recorded its finding but the judge did not appear before either of the
committees.
The
judge was also prosecuted before the Central Criminal Court of New South Wales
and was found guilty of an attempt to pervert the course of justice but the
said verdict was set aside by the Court of Criminal Appeal. Fresh trial was held
where under the judge was found not guilty. Thereafter, an ad hoc legislation,
namely, Parliamentary Commission of Inquiry Act, 1986 was enacted by the
Commonwealth Parliament and a Commission consisting of three retired judges
respec- tively of Supreme Court of Victoria, Supreme Court of Aus- tralia
Capital Territory 35 and the Federal Court and Supreme Court of South Australia
was constituted to investigate into the allegations of misbehaviour. Before the
said commission could give its report, the judge became gravely ill and the Act
was re- pealed [Lane's Commentary on the Australian Constitution, (1986) p.
373].
15. In
one other case, proceedings for removal were initiated against Mr. Justice
Vasta of the Supreme Court of Queensland and for that purpose, the Queensland
Legislature enacted the Parliamentary (Judges) Commission of Inquiry Act, 1988
whereby a commission comprised of three retired judges respectively of the High
Court of Australia, Supreme Court of Victoria and the Supreme Court of New South
Wales was constituted.
16. In
Australia, there has been criticism of the
exist- ing procedure with regard to removal of judges both by judges as well as
by lawyers. Mr. Justice L.J. King, Chief Justice of the Supreme Court of South
Australia, has ob- served:
"The
concept of removal by an address of both Houses of Parliament is itself the
subject of a good deal of criticism. Curiously, common criticism which are made
are contradictory.
One
criticism is that the necessity for the involvement of the legislature ensures
that the procedure will not be used and that the judges therefore have a
practical immunity from removal. Removal by this means is cer- tainly extremely
tare. That may be, however, because in the countries in which this proce- dure
prevails, conditions are such that a judge who commits a serious act of
judicial misconduct would certainly resign. That con- sideration, together with
the fact that stand- ards of judicial conduct are generally very high in those
countries, renders removal by the legislature a rarity. The opposite criti-
cism, however, is that there is no established procedure for the trial of a
judge whose removal by the legislature is sought. It is assumed that the
legislature would itself institute some form of inquiry at which the judge
would be able to defend himself against the accusations, but that would be a
matter for the legislature in each case. There are some who fear that a
parliamentary majority, encouraged by inflamed public feeling about an
unpopular judicial decision, might some day act to remove a judge, without due
process.
It is
at least questionable whether the system of removal by an address of both
Houses of Parliament accords to a judge the 30 degree of security which is
required by the concept of judicial independence.
[
'Minimum Standards of Judicial Independence'
1984 (58) ALl 340, at p. 345] Similarly, Mr. Justice M.H. Mclelland of the
Supreme Court, of New
South Wales has
expressed the view:
"In
lieu of measures of the kinds already discussed, some permanent, and preferably
Australia-wide, machinery should be provided by legislation for the purpose of
establishing an effective procedure for the determination by a judicial
tribunal - of the existence of misbehaviour or incapacity which could warrant a
judge's removal from office. The design of that ma- chinery should be such as
to produce as little damage to judicial independence, public confi- dence in
the judicial system, and the authori- ty of the courts, as is consistent with
its effective operation. It should also be such as to ensure to a judge both
procedural fairness and protection from public vilification or embarrassment
pending the making of the deter- mination".
(Disciplining
Australian Judges, (1896) 64 ALJ 688 at p. 401) Mr. Justice Mclelland has also
suggested that the tribu- nal should be subject to the supervisory jurisdiction
of, and an appeal should lie from the tribunal to, the High Court of Australia.
In this context, he has stated:
"Furthermore,
the protection of judicial tenure and independence which the Act of Settlement
provisions were intended to effect, has in the intervening period lost a great
deal of its strength. In 1701, the Crown, the House of Lords and the House of
Commons were three powerful but relatively independent entities. It was
necessary for a judge to incur the displeasure of all three concurrent- ly to
be at risk of removal under the parlia- mentary address procedure. The
subsequent development of the party system and cabinet government (especially
with modern ideas of strict party discipline) has radically altered the
position. In modern times, the executive government and the lower house (and
frequently the upper house, where there is one) are effectively under the
control of a single individual or cohesive group, so that now a judge may be at
risk of removal under the parliamentary address procedure if 37 he or she were
to incur the sole displeasure of that individual or group." (Disciplining
Australian Judges, (1990) 64 ALJ 3 8 8 at p. 402-3) Sir Maurice Byers, former
Solicitor General of the Commonwealth has also spoken in the same vein:
"A
federal system involves a tension between the High Court and the Parliament and
the executive. Recent years have seen this in- crease because interpretations
of the Consti- tution have become party dogma. The Court's constitutional
decisions are seen by many of the uninformed and quite a few of the informed as
bearing upon party political questions.
When,
as in the case of Mr. Justice Murphy and to a much less degree Sir Garfield
Barwick, a former political figure, hands down a judgment he attracts the
animus and often the abuse of some in Parliament. Section 72 of the Consti-
tution leaves him exposed to the attack of his opponents and the often doubtful
support of his former friends. Whether Parliament may itself decide the
judicial question of his fitness for office or "proved misbehaviour or
incapacity" is at the least doubtful. But the Court should not be exposed
to this hazard, A Commission of Judges whose membership rotates is called
for." (From the other side of the Bar Table: An Advocates' view of the
Judici- ary, (1987) 10 University of New South Wales Law Journal 179 at p.
185).
A
Constitutional Commission was set up in Australia for suggesting reforms in the Commonwealth Constitution. The said
Commission has recommended that provision should be made by amendment to the
Commonwealth Constitution for (a) extending the security of tenure provided by
section 72 to all judges in Australia, and (b) establishing a national judicial
tribunal to determine whether facts found by that tribunal are capable of
amounting to misbehaviour or inca- pacity warranting removal of a judge from
office.
(Mclelland
'Disciplining Australian Judges ', (1990) 64 ALJ 388, at p. 403) 17. In the
United States, the removal of a judge of the U.S. Supreme or a Federal judge is
governed by the provisions of the U.S. Constitution wherein Article 11(4)
provides for the removal from office of the President, Vice-President and all
civil officers of the United States on impeachment for, and conviction of,
treason, bribery or other high crimes 38 and misdemeanours. Impeachment may be
voted by a simple majority of the members of the House of Representatives,
there being a quorum on the floor and trial is then held in the Senate, which
may convict by a vote of two-thirds of the members of the Senate present and
voting, there being a quorum. With regard to state judiciary, the process of
removal is governed by the State Constitutions. Majority of the States follow
the federal pattern an4 provide for im- peachment as the normal process of
removal of appointed judges. In some States, provision is made for removal by
an address of the Governor to both Houses of legislature or by a joint
resolution of the legislature. In some States, the removal power is vested in
the State Supreme Courts while in some states, special courts are provided to
hear removal charges. In the State of New York, the Court is known as the Court on the judiciary. (See Henry J.
Abraham: The Judicial Process, 3rd Ed. p.45).
For
judicial administration at the national level, there is Judicial Conference of
the United States which consists of the Chief Justices of the United States,
the chief judges of each of the eleven numbered circuits and of the District of
Columbia and federal circuits but also, since 1957, a district judge
representative from each circuit with the exception of the federal circuit,
which lacks a trial-court tier. By an Act of the Congress passed in 1932
(incorporated in Title 28 of the U.S. Code) the Judicial Conference is charged
with the duty to make a comprehensive survey of the condition of business in
the courts; to prepare plans for assignment of judge,' to or from circuits or
districts where necessary; and to submit suggestions and recommendations to the
various courts to promote uniformity of management procedures and the
expeditious conduct of court business.
The
work of the Judicial Conference is performed in special committees which
include the special committee on judicial ethics. Another Act of Congress
passed in 1939 makes provi- sion for a judicial council for each circuit
composed of circuit judges of the circuit who is empowered to make all
necessary orders for the effective and expeditious adminis- tration of the
business of the courts within its circuit.
The
mandate of the Judicial Councils embraces the business of the judiciary in its
institutional sense (administration of justice), such as avoiding of loss of
public esteem and confidence in respect to the court system, from the actions
of a judge or other person attached to the courts. The Judicial Councils have
exercised the power of review of allegations of misconduct on the part of court
personnel, officers and judges. In view of the increased number of judges, who
can be removed only by the process of impeach- ment, Congress has enacted the
Judicial Councils Reform and Judicial Conduct and Disability Act of 1980
whereby the Judicial Councils have been explicitly empowered to receive
complaints about judicial 39 conduct opaquely described as "prejudicial to
the effective and expeditious administration of the business of the courts, or
alleging that such a Judge or magistrate is unable to discharge all the duties
of office by reason of mental or physical disability." It prescribes an
elaborate judicilised procedure for processing such complaints within the
administrative system of the councils and the Judicial Conference. Should a
Council determine that the conduct constitutes grounds for impeachment the case
may be certi- fied to the Judicial Conference of the United States which may take appropriate action
and if impeachment is deemed warranted, the Conference is empowered to transmit
the record and its determination to the House of Representa- tives.
In so
far as the States are concerned, all the fifty States have central Institutions
for disciplining their judges and in each a variously constituted commission is
organised in either a single tier or in many tiers depending on the perceived
desirability of separating fact-finding from judgment recommendation tasks.
Commission recommenda- tions are transmitted to the State Supreme Court for its
authoritative imprimatur, except in states where they are received by
legislatures that retain judicial removal power.
(See
Robert J.Janosik Encyclopaedia of the American Judicial System, Vol. II pp.575
to 578).
18.
This study of the practice prevailing in the above- mentioned countries reveals
that in Canada, Australia and the United States, the process of removal of a
judge incor- porates an investigation and inquiry into the allegations of
misconduct or incapacity against a judge by a judicial agency before the
institution of the formal process of removal in the legislature. England is the only exception where the entire
process is in Parliament but there also views are being expressed that it
should be replaced by a judicial process of investigation by a judicial
tribunal before the matter is taken up by the Houses of Parliament.
This
is also the trend of the recommendations in the resolu- tions adopted by the
United Nations General Assembly and international conferences of organisations
of lawyers.
19.
International Bar Association at its 19th Biennial Conference held at New Delhi in October 1982 adopted Minimum Standards
of Judicial Independence. Paras 27 to 32 relating to 'Judicial Removal and
Discipline' are as under:
"27.The
proceedings for discipline and removal of judges should ensure fairness to the
judge, and adequate opportunity for hearing.
40
28.
The procedure for discipline should be held in camera. The judge may however
request that the heating be held in public, subject to final and reasoned
disposition of this request by the Disciplinary Tribunal. Judgments in
disciplinary proceedings whether held in camera or in public, may be published.
29. (a)
The grounds for removal of judges should be fixed by law and shall be clearly
defined.
(b)
All disciplinary action shall be based upon standards of judicial conduct
promulgated by law or in established rules of court.
30. A
judge shall not be subject to removal unless, by of a criminal act or through
gross or repeated neglect or physical or mental incapacity, he has shown
himself manifestly unfit to hold the position of judge.
31. In
systems where the power to discipline and remove judges is vested in an
institution other than the Legislature, the tribunal for discipline and removal
of judges shall be permanent and be composed predominantly of members of the
Judiciary.
32.
The head of the court may legitimately have supervisory powers to control
judges on administrative matters."
20.
The First World Conference on the Independence of
Justice held at Montreal on June 10, 1983 adopted a UniVer- sal Declaration on the Independence of
Justice. It relates to international judges as well as national judges. The
following paragraphs deal with 'Discipline and Removal' in relation to national
judges:
"2.32
A complaint against a judge shall be processed expeditiously and fairly under
an appropriate practice, and the judge shall have the opportunity to comment on
the complaint at its initial stage. The examination of the complaint at its
initial stage shall be kept confidential, unless otherwise requested by the
judge.
2.33
(a) The proceedings for judicial removal or discipline, when such are
initiated, shall be held before a court or a board predominant- ly composed of
members of the judiciary and selected by the judiciary.
(b)
However, the power of removal may be vested in the Legislature by impeachment
or joint address, preferably upon a recommenda- tion of a court or board as
referred to in 2.33(a).
41
[Explanatory Note: In countries where the legal profession plays an
indispensable role in maintaining the rule of law and judicial independence, it
is recommended that members of the legal profession participate in the
selection of the members of the court or board, and be included as members
thereof.] 2.34 All disciplinary action shall be based upon established
standards of judicial con- duct.
2.35
The proceedings for discipline of judges shall ensure fairness to the judge and
the opportunity of a full hearing.
2.36
With the exception of proceedings before the Legislature, the proceedings for
disci- pline and removal shall be held in camera. The judge may, however,
request that the hearing be held in public, subject to a final and reasoned
disposition of this request by the Disciplinary Tribunal. Judgments in
discipli- nary proceedings, whether held in camera or in public, may be
published.
2.37
With the exception of proceedings before the Legislature or in connection with
them, the decision of a Disciplinary Tribunal shall be subject to appeal to a
court.
2.38 A
judge shall not be subject to removal except on proved grounds of incapacity or
misbehaviour, rendering him unfit to continue in office.
2.39
In the event that a court is abolished judges serving in this court shall not
be affected, except for their transfer to another court of the same
status."
21.
The Seventh United Nations Congress on the Preven- tion of Crime and the
Treatment of Offenders held at Milan from
August 26 to September
6, 1985 adopted the
Basic Prin- ciples on the Independence
of the Judiciary. Paragraphs 17 to 20 dealing with 'Discipline, Suspension and
Removal' are as under:
"17.A
charge or complaint made against a judge in his/her judicial and professional
capacity shall be processed expeditiously and fairly under an appropriate
procedure, The judge shall have the right to a fair heating. The examination of
the matter at its initial stage shall be kept confidential, unless otherwise
requested by the judge.
18.
Judges shall be subject to suspension or removal only for reasons of incapacity
or behaviour that renders them unfit to 42 discharge their duties.
19.
All disciplinary, suspension or removal proceedings shall be determined in
accordance with established standards of judicial con- duct.
20.
Decisions in disciplinary, suspension or removal proceedings should be subject
to an independent review. This principle may not apply to the decisions of the
highest court and those of the legislature in impeachment or similar
proceedings." The Congress Documents were endorsed by the U.N. General
Assembly in its Resolution 40/32 on November 9, 1985 and Resolution 40/ 146 on December 13, 1985. Resolution 40/146 dated December
13, 1985 of the General Assembly specifically welcomed the Basic Principles on
the Independence of the Judiciary and invited Government "to respect them
and to take them into account within the framework of their nation- al legislation
and practice" (para 2).
22.
Unlike the judges of the Superior courts in England, the judges in the colonies did not enjoy the security of tenure as
guaranteed under the Act of Settlement, 1700 and they held office at the
pleasure of the Crown. (See: Terrell v. Secretary of State for the Colonies and
Another, 1953(2), 482). The position was not different in India till the enactment of Government of
India Act, 1935. In Clause (b) of the proviso to sub-Section 2 of Section 200
of the said Act which related to judges of the Federal Court, it was pre-
scribed that "a judge may be removed from his office by order of the
Governor-General on the ground of misbehaviour or of infirmity of body or mind,
if the Judicial Committee of the Privy Council, on reference being made to
them, report that the judge ought on any such ground to be re- moved".
Similar provisions were made with regard to judges of the High Court in Section
220. It would thus appear that prior to the coming into force of the Constitution
of India, it was necessary to have a determination by a judicial body about the
alleged grounds of misbehaviour or infirmity of mind and body before a judge of
the Federal Court or High Court could be removed. Does the Constitution seek to
alter this position in a way, as to exclude investigation and proof of
misbehaviour or incapacity by a judicial body and to rest the power of removal
including the investigation and proof of misbehaviour or incapacity in
Parliament alone.
23.
Basically, the process of removal or impeachment of a judge is a political
process. A learned author in "The Impeachment of the Federal 43
Judiciary:' [Wrisley Brown Harward Law Review 1912-1913 684 at page 698) says:
"....
Thus an impeachment in this country, though judicial in external form and
ceremony.
is
political in spirit. It is directed against a political offence. It culminates
in a polit- ical judgment. It imposes a political forfei- ture. In every sense,
say that of administra- tion, it is a political remedy, for the sup- pression
of a political evil, with wholly political consequences.
This
results in no confusion of the political and the judicial powers. The line of
demarca- tion is clearly discernible even through the labyrinth of formal
non-essentials under which ingenious counsel in various cases have sought to
bury it. The judgment of the High Court of Parliament upon conviction of an
impeachment automatically works a forfeiture of political capacity; but this is
simply an effect of the judgment, which is to be distinguished from the
judgment itself..." Mauro Cappelletti in 'The Judicial Process in
Comparative Perspective'[Clarendon Press- Oxford 1989 at page 731 says:
"Two
main features of this accountability type can be identified; first, the fact
that ac- count has to be given to 'political' bodies, ultimately to the
legislative and/or the executive branches by means of essentially'po- litical',
non-judicial processes; second, and perhaps even more characteristically, the
fact that account has to be given not, or not primarily, for 'legal'
violations, but rather for behaviour (and this might include private,
out-of-office behaviour) which is evaluated on the basis of 'political'
criteria.
Perhaps
the best illustration of political accountability can be found in the systems
of the common law tradition. In England, judges (like any other officials) can be impeached 'before the House
of Lords, at the suit of the House of Commons', although this practice has
fallen into desuetude; moreover, higher court judges can be 'removed from
office by the Crown on an address presented to Her Majesty by both Houses of
Parliament'. The idea behind this 'address' procedure is that judges are
appointed 'during good behaviour', hence, they can be removed upon breach of
the condition.
Misbehaviour
includes such situations as 'the case of conviction upon an indictment for any
infamous offence of such a nature as to render the 44 person unfit to exercise
the office', but also 'improper exercise of the functions appertain- ing to the
office, or non-attendance, or neglect of or refusal to perform the duties of
the office'. Of course the decision of the Houses and the Crown can only be an
essential- ly political one, not a purely juridical decision, even though we
are informed that the removal procedure is subject to some extent 'to the rules
of natural justice'..."
24.
But the Constitutional scheme in India seeks to achieve a judicious blend of the political and judicial
processes for the removal of Judges. Though it appears at the first sight that
the.proceedings of the Constituent Assembly relating to the adoption of.
clauses, (4) and (5) of Article 124 seem to point to the contrary and evince
'an intention to exclude determination by a judicial process of the correctness
of the allegations of misbehaviour or inca- pacity on a more careful
examination this is not the correct conclusion. In the submissions of the
learned counsel who contend against the manifestation of an intention to bring
in a judicial element, reliance has been placed on the proceedings of the
Constituent Assembly dated July 29, 1947
relating to adoption of Clause 18 of the report of the Union Constitution
Committee relating to the Supreme Court. Shri Alladi Krishnaswami Ayyar had
moved the said clause subject to modifications and conditions in the said
clause which related to appointment and removal of judges of Supreme Court. It
was provided that "a judge of the Supreme Court of India shall not be
removed from his office except by the President on an address from both the Houses
of Parliament of the Union in the same session for such
removal on the ground of proved misbehaviour or incapacity. Further provi- sion
may be made by Federal law for the procedure to be adopted in this behalf'.
Shri K. Santhanam had moved an amendment in the said Clause relating to removal
of judges and he wanted the last sentence about further provision being made by
Federal law for the procedure to be adopted in that behalf, to be omitted. Shri
M.Ananthasayanam Ayyanagar proposed amendments suggesting two alternative
clauses in the place of the Clause with regard to removal of the judges. In one
clause, it was suggested that "a judge may be removed from office on the
ground of misbehaviour or infirm- ity of mind or body by an address presented in
this behalf by both the Houses of the legislature to the President provided
that a committee consisting of not less than 7 High Court Chief Justices chosen
by the President, investigates and reports that the judge on any such ground be
removed".
The
other alternative clause suggested by Shri M.Anantha- sayanam Ayyangar was that
"a judge of the Supreme Court may be removed from office by the President
on the ground of misbehaviour or of infirmity of mind or body, if on refer-
ence being made to it (Supreme Court) by the President, a special 45 tribunal
appointed by him for the purpose from amongst judges or exjudges of the High
Courts or the Supreme Court, report that the"'judge ought on any such
grounds to be removed." The Constituent Assembly adopted clause 18 with
the amendments as proposed by Shri Alladi Krishnaswami Ayyar and rejected the
amendments suggested by Shri M. Anantha- sayanam Ayyangar. Shri Santhanam did
not press his amendment and it was withdrawn. There is no doubt that in the
amend- ments which were suggested by Shri M.Ananthasayanam Ayyan- gar, it was
provided that there-should be investigation into the allegations of
misbehaviour or infirmity by a committee consisting of Chief Justices of the
High Courts or the special tribunal consisting of judges or ex-judges of the
High Court or the Supreme Court, but the rejection of the said amendments moved
by Shri Ayyangar does not mean that the Constituent Assembly was not in favour
of determination about the correctness of such allegations by judicial body
because Shri Alladi Krishnaswami Ayyar, while moving Clause 18 had emphasised
the word 'proved misbehaviour' and had stated:
"While
the ultimate power may rest with the two Houses, the Clause provides that the
charges must be proved. How exactly to prove the charges will be provided for
in the Feder- al law. We need not be more meticulous or more elaborate, than
the people who have tried a similar case in other jurisdictions. I chal- lenge
my friend to say whether there is any detailed provision for the removal of
judges more than that in any other Constitution in the world. The general
principle is laid down in the Constitution and later on the Federal law will
provide for adequate machinery and that is the import of the clause".....
There is sufficient safeguard in the reference "proved misbehaviour"
and we might make elabo- rate and adequate provision for the way in which ',he
guilt could be brought home to a particular judge in any Federal law that may
be passed but that is a different matter"...... "But I do not think
that in a Constitution it is necessary to provide de- tailed machinery as to
the impeachment, the charges to be framed against a particular judge. To make a
detailed machinery for all these could be a novel procedure to be adopted in any
Constitution".
(Constituent
Assembly Debates, vols. I to VI at pp. 899-900)
25.
Reference was also made to the debates of the Con- stituent Assembly dated May 24, 1949 on Article 103 of the Draft
Constitution. Shri Tajamul Hnsain moved an amendment in Clause (4) of Article
103 which related to the removal of a judge of Supreme Court and suggested an
amendment in the said clause so as to provide that "a judge of the Supreme
46 Court shall not be removed from his office except by an order of the President
passed, after a Committee consisting of all the judges of the Supreme Court had
investigated the charge and reported on it to the President and etc." The
said amendment was negatived by the Constituent Assembly.
(Constituent
Assembly Debates, vol. VIII at pp. 243 and 262). The said amendment was similar
to those moved by Shri M. Ananthasayanam Ayyangar at the stage of adoption of
Clause 18 of the report of the Union Constitution Committee noticed earlier.
The reasons which were given by Shri Alladi Krishnaswami Ayyar for opposing the
said amendments would apply to this amendment also.
26.
The proceedings in the Constituent Assembly, there- fore, do not give an
indication that in adopting Clauses (4) and (5) of Article 124 of the
Constitution, the intention of the Costituent Assembly was to exclude_
investigation and proof of misbehavior or incapacity of the judge sought to be
removed, by a judicial body. Having regard to the views expressed by Shri
Alladi Krishnaswami Ayyar, who was a member of the Drafting Committee, while
opposing the amend- ments proposed by Shri M.Ananthasayanam Ayyangar, it is
possible to infer that the intention of the Constituent Assembly was that the
provision with regard to the machinery for such investigation and proof was a
matter which need not be contained in the Constitution and it is a matter for
which provision could be made by Parliament by law.
27.
This is some of the historical material and back- ground on the topic. We may
now proceed to consider the merits of the contentions.
RE:
CONTENTION A:
28.
This contention has two aspects: whether a motion for removal of a Judge lapses
upon the dissolution of the House of Parliament and secondly, the question
whether it so lapses or not is a matter within the exclusive domain and
decision of that House itself. On the first aspect, the contention of the
learned Attorney General and Shri Kapil Sibal, learned Senior Counsel, are
similar. On the second aspect, the learned Attorney General would say that the
question whether a motion lapsed or not is to be decided on the basis of the
provisions of law guiding the matter and the House itself is not its final
arbiter. Learned Attorney General would say that the Court alone has
jurisdiction to examine and pronounce on the law of the matter.
29. On
the question of lapse reliance was placed on the classic treatise of Erskine
May's "The Law, Privileges, Proceedings and Usage 47 of Parliament"
[Twenty-first Edition, London Butterworths 1989]. A motion is described as a
"proposal made for the purpose of illustrating the decision of the
House". Accord- ing to Erskine May, certain matters may be raised by only
a substantive motion. He says:
"Certain
matters cannot be debated, except on a substantive motion which allows a
distinct decision of the House. Amongst these are the conduct of the sovereign,
the heir to the throne or other members of the Royal Family, a Governor-General
of an independent territory, the Lord Chancellor, the Speaker, the Chairman of
Ways and Means, Members of either House of Parliament and judges of the
superior courts of the United Kingdom, including persons holding the position
of a judge, such as a judge in a court of bankruptcy and a county court, or a
recorder..."
30.
'Sri Sibal placed strong reliance on the following statements in M.N.Kaul and
S.L.Shakdher in "Practice and Procedure of Parliament" as to the
effects of the dissolu- tion of the House:
"Dissolution,
as already stated, marks the end of the life of a House and is followed by the
constitution of a new House. Once the House has been dissolved, the dissolution
is irrevo- cable. There is no power vested in the Presi- dent to cancel his
order of dissolution and revive the previous House. The consequences of a
dissolution are absolute and irrevocable. In Lok Sabha, which alone is subject
to dissolu- tion under the Constitution, dissolution "passes a sponge over
the parliamentary slate". All business pending before it or any of its
committees lapses on dissolution. No part of the records of the dissolved House
can be carried over and transcribed into the records or registers of the new
House. In short, the dissolution draws the final curtain upon the existing
House".
Adverting
to the effect of dissolution on other business such as motions, resolutions
etc., the learned authors say:
"All
other business pending in Lok Sabha, e.g., motions, resolutions, amendments
supple- mentary demands for grants etc., at whatever stage, lapses upon
dissolution, as also the petitions presented to the House which stand referred
to the Committee on Petitions." Learned Attorney General urged that a
combined reading of Articles 107, 108 and 109 leads irresistibly to the
conclusion that upon dissolution 48 of the House, all bills will lapse subject
only to the exception stipulated in Article 108. It is further urged that on
first principle also it requires to be accepted that no motion should survive
upon the dissolution of the House unless stipulated otherwise under the Rules
of Procedure and conduct of business. The doctrine of lapse, it is urged, is a
necessary concomitant of the idea that each newly consti- tuted House is a
separate entity having a life of its own unless the business of the previous
House is carried over by the force of statute or rules of procedure. Both the
learned Attorney General and Shri Kapil Sibal took us through the Rules of
Procedure and Conduct of Business in Lok Sabha made under Article 118 of the
Constitution to show that invaria- bly all pending business come to an end with
the expiry of the term of the House or upon its earlier dissolution.
Shri
Ram Jethmalani for the petitioner-sub-committee referred to the conventions of
the British Parliament and urged that pending business lapses on prorogation
and as a general practice the House is usually prorogued before it is
dissolved. Learned counsel said that impeachment motions are sui generous in
their nature and that they do not lapse. It is. however, necessary to
distinguish the Indian Parliamen- tary experience under a written Constitution
from the Brit- ish conventions. Indeed, referring to the doctrine of lapse this
Court in Purushothaman Nambudiri v. The State of Kerala [1962] Suppl. 1 SCR 753 Gajendragadkar J said:
"....
In support of this argument it is urged that wherever the English parliamentary
form of Government prevails the words "prorogation" and
"dissolution" have acquired the status of terms of art and their
significance and conse- quence are well settled. The argument is that if there
is no provision to the contrary in our Constitution the English convention with
regard to the consequence of dissolution should be held to follow even in India. There is no doubt that, in
English, in addition to bringing a session of Parliament to a close prorogation
puts an end to all business which is pending consideration before either House
at the time of such prorogation; as a result any proceedings either in the
House or in any Committee of the house lapse with the session Dissolution of
Parliament is invariably pre- ceded by. prorogation, and what is true about the
result of prorogation" is, it is said, a fortiori true about the result of
dissolution.
Dissolution
of Parliament is sometimes de- scribed as "a civil death of
Parliament".
Ilbert,
in his work on 'Parliament' has ob- served that "prorogation means the end
of a session (not of a Parliament)"; and adds that "like dissolution,
it kills all bills which have not yet passed". He also describes disso-
lution as an "end of a Parliament (not merely of 49 a session) by royal
proclamation", and ob- serves that "it wipes the slate clean of all
uncompleted bills or other proceedings"..."[p.759 & 760].
After
referring to the position in England that
the dissolution of the House of Parliament brought to a close and in that sense
killed all business of the House at the time of dissolution, the learned Judge
said:
"
....... Therefore, it seems to us that the effect of cl. (5) is to provide for
all cases where the principle of lapse on dissolution should apply. If that be
so, a Bill pending assent of the Governor or President is outside cl. (5) and
cannot be said to lapse on the dissolution of the Assembly." [p. 768] "
........ In the absence of cl. (5) it would have followed that all pending
business, on the analogy of the English convention, would lapse on the dissolution
of the Legisla- tive Assembly. It is true that the question raised before us by
the present petition under Pal. 196 is not free from difficulty but, on the
whole, we are inclined to take the view that the effect of cl. (5) is that all
cases not falling within its scope are not subject to the doctrine of lapse of
pending business on the dissolution of the Legislative Assem- bly. In that
sense we read cl. (5) as dealing exhaustively with Bills which would lapse on
the dissolution of the Assembly. If that be the true position then the argument
that the Bill which was pending assent of the President lapsed on the
dissolution of the Legislative Assembly cannot be upheld." [P. 769]
31. It
is true that Purushothaman Nambudiri case dealt with a legislative measure and
not a pending business in the nature of motion. But, we are persuaded to the
view that neither the doctrine that dissolution of a House "passes a
sponge over parliamentary slate" nor the specific provisions contained in
any rule or rules flamed under Article 118 of the Constitution determine the
effect of dissolution on the motion for removal of a judge under Article 124. the
reason is that Article 124(5) and the law made thereunder exclude the operation
of Article 118 in this area.
Section
3 of the Act provides:
"3(1)
If notice is given of a motion for presenting an address to the President
praying for the removal of a Judge signed,-- (a) in the case of a notice given
in the House of the People, by not less than one hundred members of that House;
50 (b)
in the case of a notice given in the Council of States, by not less than fifty
members of that Council;
then,
the Speaker or, as the case may be, the Chairman may, after consulting such
persons, if any, as he thinks fit and after considering such materials, if any,
as may be available to him, either admit the motion or refuse to admit the
same.
(2) If
the motion referred to in sub-section (1) is admitted, the Speaker or, as the
case may be, the Chairman shall keep the motion pending and constitute, as soon
as may be, for the purpose of making an investigation into the grounds on which
the removal of a Judge is prayed for, a Committee consisting of three members
of whom -- (a) One shall be chosen from among the Chief Justices and other
Judges of the Supreme Court;
Co)
one shall be chosen from among the Chief Justices of the High Courts; and (c)
one shall be a person who is, in the opinion of the Speaker or, as the case may
be, the Chairman, a distinguished jurist;
Proviso
&) Omitted Sub-sections) as (3) to (9)) unnecessary here.
Section
6.(2) provides:
"(2)
If the report of the Committee contains a finding that the Judge is guilty of
any misbe- haviour or suffers from any incapacity, then, 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 or the Houses of
Parliament in which it is pending." The effect of these provisions is that
the motion shall be kept pending till the committee submits its report and if
the committee finds the Judge guilty, the motion shall be taken up for
consideration. Only one motion is envisaged which will remain pending. No words
of limitation that the motion shall be kept pending subject to usual effect of
dissolution of the House can or should be imported. The reason is that a law
made by the Parliament and binding on the House can provide against the
doctrine of lapse. The law envisaged in article 124(5) is Parliamentary law
which is of higher quality and efficacy than rules made by the House for itself
under Article 118. Such a law can, and under the present statute does 51
provide against the doctrine of lapse. Further, Art. 118 expressly states that
each House of Parliament may make rules "for regulating, subject to the provisions
of this Constitution".
In
State of Punjab v. Sat Pal Dang & Ors. [1969] 1
SCR 478 this Court held that the law for purposes of Article 209 (analogues to
Article 119) could even take the form of an Ordinance promulgated by the
Governor of a State under Article 213 and that wherever there is repugnance
between the Rules of Procedure framed under Article 208 (Article 118 in the
ease of Parliament), the law made under Article 209 shall prevail. In the
constitutional area of removal of a Judge, the law made under Article 124(5)
must be held to go a little further and to exclude the operation of the Rules
under Article 118. Indeed, no question of repugnance could arise to the extent
the field is covered by the law under Article 124(5).
Such a
view would indeed obviate some anomalies which might otherwise arise. Rajya
Sabha is not dissolved and a motion for presentation of address for the removal
of the Judge can never lapse there. Section 3 applies to both the Houses of
Parliament. The words "shall keep the motion pending" cannot have two
different meanings in the two different contexts. It can only mean that the
consideration of the motion shall be deferred till the report of the committee
implying that till the happening of that event the motion will not lapse. We
are of the view that the argument that such a motion lapses with the
dissolution of the House of Parliament is not tenable.
32.
The second limb of Contention A is that the question whether a motion has
lapsed or not is a matter pertaining to the conduct of the business of the
House of which the House is the sole and exclusive master. No aspect of the
matter, it is contended, is justificiable before a Court. Houses of Parliament,
it is claimed, are privileged to be the exclu- sive arbiters of the legality of
their proceedings. Strong reliance has been placed on the decision in
oft-quoted decision in Bradlaugh v. Gosserr, [1884] 12 Q.B.D. 271.
There
the exclusiveness of parliamentary jurisdiction on a matter related to the
sphere where Parliament, and not the Court, had exclusive jurisdiction even if
the matters were covered by a statute.
But
where, as in this country and unlike in England, there is a written
constitution which constitutes the funda- mental and in that sense a
"higher law" and acts as a limi- tation upon the Legislature and
other organs of the State as grantees under the Constitution, the usual
incidents of parliamentary sovereignty do not obtain and the concept is one of
'limited Government'. Judicial review is, indeed, an incident of and flows 52
from this concept of the fundamental and the higher law being the touchstone of
the limits of the powers of the various organs of the State which derive power
and, authori- ty under Constitution and that the judicial wing is the interpreter
of the Constitution and, therefore, of the limits of authority of the different
organs of the State. It is to be noted that the British Parliament with the
Crown is Supreme and its powers are unlimited and courts have no power of
judicial review of legislation.
This
doctrine is in one sense the doctrine of ultra vires in the constitutional law.
In a federal set up the judiciary becomes the guardian of the Constitution.
Indeed, in A.K. Gopalan v. The State of Madras, [1950] SCR 88 Arti- cle 13
itself was held to be ex abundante cautela and that even in its absence if any
of the fundamental rights were infringed by any legislative enactment, the
court had always power to declare the enactment invalid. The interpretation of
the Constitution as a legal instrument and its obligation is the function of
the Courts. "It is emphatically the province and duty of the judicial
department to say what the law is". In Re: Special Reference Case, [1965]
1 SCR 413 Gajendragadkar, CJ said:
".......though
our Legislatures have plenary powers, they function within the limits pre-
scribed by the material and relevant provi- sions of the Constitution.
In a
democratic country governed by a written Constitution, it is the Constitution
which is supreme and sovereig..... " But it is the duty of this Court to
interpret the Con- stitution for the meaning of which this Court is final
arbiter.
33.
Shri Kapil Sibal referred us to the following obser- vations of Stephen J. in
Bradlaugh v. Gosserr, supra:
"......It
seems to follow that the House of Commons has the exclusive power of interpret-
ing the statute, so far as the regulation of its own proceedings within its own
walls is concerned; and that even if that interpreta- tion should be erroneous,
this court has no power to interfere with it directly or indi- rectly..."
[p. 280 & 281] "....The House of Commons is not a Court of Justice;
but the effect of its privilege to regulate its own internal concerns
practically invest it with the judicial character when it has to apply to particular
cases the provi- sions of Acts of Parliament.
53 We
must presume that it discharges this func- tion properly and with due regard to
the laws, in the making of which it has so great a share. If its determination
is not in accord- ance with law, this resembles the case of an error by a judge
whose decision is not subject to appeal. There is nothing startling in the
recognition of the fact that such an error is possible. If, for instance, a
jury in a crimi- nal case gives a perverse verdict, the law has provided no
remedy. The maxim that there is no wrong without a remedy does not mean, as it
is sometimes supposed, that there is legal remedy for every moral or political
wrong..... " [p. 285] The rule in Bradlaugh v. Gossett, supra, was held
not applicable to proceedings of colonial legislature governed by the written
constitutions Barton v..Taylor, [1886] 11 AC 197 and Redillusion (Hong Kong) Ltd. v. Attorney General of Hong Kong, [1970] AC 1136.
The principles
in Bradlaugh is. that even a statutory right if it related to the sphere where
Parliament and not the courts had exclusive jurisdiction would be a matter of
the Parliament's own concern. But the principle cannot be extended where the
matter is not merely one of procedure but of substantive law concerning matters
beyond the Parliamen- tary procedure. Even in matters of procedure the
constitu- tional provisions are binding as the legislations are en- forceable.
Of the interpretation of the Constitution and as to what law is the Courts have
the constitutional duty to say what the law is. The question whether the motion
has lapsed is a matter to be pronounced upon the basis of the provisions of the
Constitution and the relevant laws. In- deed, the learned Attorney General
submitted that the ques- tion whether as an interpretation of the
constitutional processes and laws, such a motion lapses or not is exclu- sively
for the courts to decide.
The
interpretation of the laws is the domain of the courts and on such
interpretation of the constitutional provisions as well as the Judges (Inquiry)
Act, 1968, it requires to be held that under the law such a motion does not
lapse and the Courts retain jurisdiction to so declare.
Contention
A is answered accordingly.
RE:
CONTENTIONS (B), (C) AND (D):
34.
These contentions have common and over-lapping areas and admit of being deal
with and disposed of together. On tile interpretative criteria apposite to the
true meaning and scope of Articles 121, 124(4) and 124(5), indeed, three
constructional options become avail- able:
54
First: The entire power for taking all steps for the removal of a Judge,
culminating in the presentation of an address by different Houses of Parliament
to the Presi- dent, is committed to the two Houses of Par- liament alone and no
initiation of any investigation is possible without the initiative being taken
by the Houses them- selves. No law made by Parliament under Article 124(5)
could take away this power. The bar of Article 121 is lifted the moment any
Member of Parliament gives notice of motion for the removal of a Judge and the
entire allegations levelled by him would be open for discussion in the House
itself. It will be for the majority of the Members of the House t decide if and
how they would like to have the allegations investigated. Any abridging this
power is bad.
Second:
Since a motion for presenting an address to the President referred to in Arti-
cles 121 and 124 (4) has to be on ground of "proved" misbehaviour and
incapacity, no such motion can be made until the allegations relating to
misbehaviour or incapacity have first been found to be proved in some forum
outside either Houses of Parliament Law under Article 124(5) is mandatory and
until the Parliament enacts a law and makes provision for an investigation into
the alleged misbeha- viour or incapacity and regulates the proce- dure
therefor, no motion for removal of a Judge would be permissible under Article
124(4) and the House of Parliament would not be brought into the picture till
some authori- ty outside the two Houses of Parliament has recorded a finding of
misbehaviour or incapac- ity. The emphasis is on the expression 'proved'.
Third:
That Article 124(5) is only an enabling provision and in the absence of any
enactment by the Parliament under that provi- sion it would be open to either
House to entertain a motion for the removal of a Judge.
However,
it is open to the Parliament under Article 124(5) to enact a law to regulate
the entire procedure starting with the investiga- tion of the allegations
against the Judge concerned and ending with the presentation of the address by
the two Houses of Parliament.
It
would be open to the Parliament to desig- nate any authority of its choice for
investi- gating the allegations and also to regulate the 55 procedure for the
consideration of the matter in either House.
As
soon as a law has been enacted all its provisions would be binding on both
Houses of Parliament and would even override any Rules flamed by the two Houses
under Article 118 of the Constitution. It will not be permissible for either
House to act contrary to the provi- sions of such Act. The question as to when
and in what circumstances motion would be allowed to be moved in either House
of Parliament to lift the ban against the discussion of conduct of a Judge under
Article 121 would be accord- ing to such Act of Parliament.
In
regard to the first and the second alternative propo- sitions, the
deliberations of the Joint Select Committee would indicate a sharp divide
amongst the eminent men who gave evidence. Particularly striking is the sharp
contrast between the opinions of Mr. K.K. Shah and Mr. M.C. Setalvad.
The
first view would tend to leave the matter entirely with the House, which can
adopt any procedure even differing from case to case. The matter would be entirely
beyond judicial review. Then there is the inevitable' element of political
overtone and of contemporary political exacerbations arising from inconvenient
judicial pronouncements thus endangering judicial independence.
The
third view would suffer from the same infirmities except that Parliament might
itself choose to discipline and limit its own powers by enacting a law on the
subject. The law enacted under Article 124(5) might be a greatly civi- lized
piece of legislation deferring to values of judicial independence. But then the
Parliament would be free to repeal that law and revert hack to the position
reflected in the first view. The third view can always acquire back the full
dimensions of the first position at the choice of the Parliament.
35. The
second view has its own commendable features. It enables the various provisions
to be read harmoniously and, together, consistently with the cherished values
of judicial independence. It also accords due recognition to the word
"proved" in Article 124(4). This view would also ensure uniformity of
procedure in both Houses of Parliament and serve to eliminate arbitrariness in
the proceedings for removal of a Judge. It would avoid duplication of the
inves- tigation and inquiry in the two Houses. Let us elaborate on this.
56
36.
Article 121 ,and the material parts of Article 124 read as under:
"121.
Restriction on discussion in Parlia- ment. - No discussion shall take place in
Parliament with respect to the conduct of any Judge of the Supreme Court or of
a High Court in the discharge of his duties except upon a motion for presenting
an address to the Presi- dent praying for the removal of the Judge as
hereinafter provided.
124.
Establishment and constitution of Supreme Court.
(1)....................................
(2)
Every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the
Supreme Court and of the High Courts in the States as the President may deem
necessary for the purpose and shall hold office until he attains the age of
sixty-five years:
Provided
that in the case of appointment of a Judge other than the Chief Justice of India shall always be consulted:
Provided
further that - (a) a Judge may, by writing under his hand addressed to the
President, resign his office;
(b) a
Judge may be removed from his office in the manner provided in clause (4).
(4) A
Judge of the Supreme Court shall not be removed from his office except by an
order of the President passed after an address by each House of Parliament
supported by a majority of not less than two-thirds of the members of that
House present and voting has been pre- sented to the President in the same
session for such removal on the ground of proved misbehaviour or incapacity.
(5)
Parliament may by law regulate the proce- dure for the presentation of an
address and for the investigation and proof of the misbe- haviour or incapacity
of a Judge under clause (4)." Article 121 suggests that the bar on
discussion in Parliament with respect to the conduct of any Judge is lifted
'upon a motion for presenting an address to the President praying for the
removal of a Judge as hereinaf- 57 provided'. The word 'motion' and 'as
hereinafter provid- ed' are obvious references to the motion for the purpose of
clause (4) of Article 124 which in turn, imports the concept of
"proved" misbehaviour or incapacity. What lifts the bar under Article
121 is the 'proved' misbehaviour or incapaci- ty. Then arises the question as
to how the investigation and proof of misbehaviour or incapacity preceding the
stage of motion for removal on the ground of "proved" misbehaviour or
incapacity under Article 124(4) is to be carried on. Clause (5) of Article 124
provides for enactment of a law for this purpose.
37.
The seminal question is whether clause (5) is merely an enabling provision
particularly in view of the use of the word 'may' therein, or it incorporates a
condition precedent on the power of removal of the parliament. In other words,
can the function of removal under Article 124(4) be per- formed without the aid
of a law enacted under clause (5)?If it can be, then the power for
investigation and proof of misbehaviour or incapacity of a Judge must be found
in clause (4) itself and the scope of clause (5) limited only to enactment of a
law for this limited purpose if the Par- liament so desires and not otherwise.
The other view is that clause (5) contains a constitutional limitation on the
power of removal contained in clause (4) so that it can be exer- cised only on
misbehaviour or incapacity "proved" in accord- ance with the law
enacted under clause (5). In such situa- tion, the power of the Parliament
would become available only for enacting the law under clause (5) and if misbeha-
viour or incapacity is "proved" in accordance with such law.
The
motion which lifts the bar contained in Article 121 is really a motion for such
removal under clause (4) of Article 124 moved in the House after the alleged
misbehavior or incapacity has been proved in accordance with the law enact- ed
by the Parliament under clause (5) of Article 124. In this connection, the
parliamentary procedure commences only after proof of misbehaviour or
incapacity in accordance with the law enacted under clause (5), the machinery
for investi- gation and finding of proof of the misbehaviour or incapaci- ty
being statutory. governed entirely by provisions of the law enacted under
clause (5). This also harmonises Article 121. The position would be that an
allegation of misbeha- viour or incapacity of a Judge has to be made,
investigated and found proved in accordance with the law enacted by the
Parliament under Article 124(5) without the Parliament being involved upto that
stage; on the misbehaviour or incapacity of a Judge being found proved in the
manner provided by that law, a motion for presenting an address to the
President for removal of the Judge on that ground would be moved in each House
under Article 124(4); on the motion being so moved after the proof of
misbehaviour or incapacity and it being for presenting an address to the
President praying for removal of the Judge, the bar. on 58 discussion contained
in Article 121 is lifted and discussion can take place in the Parliament with
respect to the conduct of the Judge; and the further consequence would ensue
de- pending on the outcome of the motion in a House of Parlia- ment. If,
however, the finding reached by the machinery provided in the enacted law is
that the allegation is not proved, the matter ends and there is no occasion to
move the motion in accordance with Article 124(4).
38. If
it be accepted that clause (4) of Article 124 by contains the complete power of
removal and the enactment of a law under clause (5) is merely enabling and not
a consti- tutional limitation on the exercise of the power of removal under
clause (4), then some other questions arise for con- sideration. If clause (5)
is merely an enabling provision, then it cannot abridge the scope of the power
in clause (4) and, therefore, the power of a House of Parliament under clause
(4) cannot be curtailed by a mere enabling law enact- ed under clause (5) which
can be made only for the purpose of aiding or facilitating exercise of the
function under clause (4). In that situation, enactment of the enabling law
under clause (5) would not take the sphere covered by the law outside the ambit
of Parliament's power under clause (4). The argument that without enactment of
the law under clause (5), the entire process from the time of initiation till
presentation of the address to the President, including investigation and proof
of the misbehaviour or incapacity, is within the sphere of Parliament, but on
enactment of a law under clause (5) that area is carved out of the Parlia-
ment's sphere and assumes statutory character appears tenu- ous. If the
argument were correct, then clause (5), would merely contemplate a
self-abnegation.
39.
The other view is that clause (4) of Article 124 gives power to the Parliament
to act for removal of the Judge on the ground of proved misbehaviour or
incapacity in the manner prescribed if the matter is brought before it at this
stage; and for reaching that stage the Parliament is required to enact a law
under clause (5) regulating the procedure for that purpose. This means that
making of the allegation, initiation of the proceedings, investigation and
proof of the misbehaviour or incapacity of a Judge are governed entirely by the
law enacted by the Parliament under clause (5) and when that stage is reached,
the Parliament comes into the picture and the motion for removal of the Judge
on the ground of proved misbehaviour or incapacity is moved for presentation of
the address to the President in the manner prescribed. The matter not being
before the Parliament prior to this stage is also indicated by Article 121
which lifts the bar on discussion in Parliament only upon a motion for
presenting an address to the President as provided later in Article 124(4). The
bar in 59 Article 121 applies to discussion in Parliament but investi- gation
and proof of misconduct or incapacity cannot exclude such discussion. This
indicates that the machinery for investigation and proof must necessarily be
outside Parlia- ment and not within it. In other words, proof which involves a
discussion of the conduct of the Judge must be by a body which is outside the
limitation of Article 121. The word 'proved' also denotes proof in the manner
understood in our legal system i.e. as a result of a judicial process. The
policy appears to be that the entire stage upto proof of misbehaviour or
incapacity, beginning with the initiation of investigation on the allegation
being made, is governed by the law enacted under Article 124(5) and in view of
the restriction provided in Article 121, that machinery has to be outside the
Parliament and not within it. If this be so, it is a clear pointer that the
Parliament neither has any role to play till misconduct or incapacity is round
proved nor has it any control over the machinery provided in the law enacted
under Article 124(5). The Parliament comes in the picture only when a finding
is reached by that machinery that the alleged misbehaviour or incapacity has
been proved.
The
Judges (inquiry) Act, 1968 enacted under Article 124(5) itself indicates that
the Parliament so understood the integrated scheme of Articles 121, 124(4) and
124(5). The general scheme of the Act conforms to this view. Some ex- pressions
used in the Act, particularly sections 3 and 6 to suggest that the motion is
initiated in the House or is kept pending in the House during investigation can
be reconciled, if this Constitutional Scheme is accepted. Those expressions
appear to have been used since the authority tO entertain the complaint is
'Speaker/Chairman', the complaint is de- scribed as 'motion' and the complaint
can be made only by the specified number of Members of Parliament. In substance
it only means that the specified number of M.Ps. alone can make such a
complaint; the complaint must be made to the 'Speaker/Chairman'; on receiving
such a complaint if the Speaker/Chairman form the opinion that there is a prima
facie case for investigation, he will constitute the judi- cial committee as
prescribed; and if the finding reached is 'guilty' then the Speaker/Chairman
commences the parliamen- tary process in accordance with Article 124(4) for
removal of the Judge and the bar in Article 121 is lifted.
40. If
this be the correct position, then the validity of law enacted by the
Parliament trader clause (5) of Arti- cle 124 and the stage upto conclusion of
the inquiry in accordance with that law being governed entirely by statute
would be open to judicial review as the parliamentary proc- ess under Article
124(4) commences only after a finding is recorded that the alleged misbehaviour
or incapacity is proved in the inquiry conducted in accordance with the law
enacted under clause (5). For this reason the argument based on exclusivity of
Parliament's jurisdiction over 60 the process and progress of inquiry under the
Judges (in- quiry) Act, 1968 and consequently exclusion of this Court's
jurisdiction in the matter at this stage does not arise. For the same reason,
the question of applying the doctrine of lapse to the motion made to the
Speaker giving rise to the constitution of the Inquiry Committee under the Act,
also does not arise and there can be no occasion for the House to say so at any
time. If the House is, therefore, not required to consider this question since
the parliamentary process can commence only after a finding of guilt being
proved, the further question of a futile writ also does not arise. The argument
that the House can decide even after a finding of guilt that it would not
proceed to vote for removal of the Judge is not germane to the issue since that
is permissible in the Constitutional Scheme itself under Article 124(4)
irrespective of the fact whether Article 124(5) is a mere enabling provision or
a constitutional limitation on the exercise of power under Article 124(4).
41. It
is not the law enacted under Article 124(5) which abridges or curtails the
parliamentary process or exclusive- ly of its jurisdiction but the
Constitutional Scheme itself which by enacting clauses (4) and (5)
simultaneously indi- cated that the stage of clause (4) is reached and the
proc- ess thereunder commences only when the alleged misbehaviour or incapacity
is proved in accordance with the law enacted under clause (5).
42. It
is only then that the need for discussing a Judge's conduct in the Parliament
arises and, therefore, the bar under Article 121 is lifted. in short, the point
of time when the matter comes first before the Parliament in the Constitutional
Scheme, Article 121 provides that the bar is lifted. The other view creates
difficulties by restricting discussion in Parliament on a motion which would be
before it. The suggestion to develop a convention to avoid discus- sion at that
stage or to prevent it by any other device adopted by the Speaker after
admitting the motion, does not appear to be a satisfactory solution or
explanation. That this obvious situation could have been left unprovided for
and the field left to a convention to be developed later, while enacting these
provisions with extreme care and cau- tion in a written Constitution, is
extremely unlikely. This indicates that this area is not left uncovered which
too is a pointer that the stage at which the bar in Article 121 is lifted, is
the starting point of the parliamentary process i.e. when the misbehaviour or
incapacity is proved; the stage from the initiation of the process by' making
the allegation, its mode, investigation and proof are covered by the law
enacted under clause (5); in case the allegation is not proved, the condition
precedent to invoke the Parlia- ment's jurisdiction under clause (4), does not
exist, which is the reason for section 6 of 1968 Act saying so; and in case it
is proved, the 61 process under clause (4) commences, culminating in the result
provided in it.
43. In
Part V of the Constitution relating to 'The Union', Article 124 is in 'Chapter
IV - The Union Judiciary' while Articles 118 and 119 relating to Parliament's
power to make rules or enact a law to regulate its procedure and the conduct of
its business are in 'Chapter II - Parliament' under the heading 'Procedure
Generally' wherein Article 121 also finds place. The context and setting in
which clause (5) appears along with clause (4) in Article 124 indicate its
nature connected with clause (4) relating to curtailment of a Judge's tenure,
clause (4) providing the manner of removal and clause (5) the pre-requisite for
removal distin- guished from Articles 118, 119 and 121, all of which relate to
procedure and conduct of business in Parliament. Article 124(5) does not,
therefore, operate in the same field as Article 118 relating to procedure and
conduct of business in Parliament.
Accordingly,
the scheme is that the entire process of removal is in two parts the first
parts under clause (5) from initiation to investigation and proof of
misbehaviour or incapacity is covered by an enacted law, Parliament's role
being only legislative as in all the laws enacted by it; and the second part
only after proof under clause (4) is in Parliament, that process commencing
only on proof in accordance with the law enacted under clause (5) Thus the
first part is entirely statutory while the second part alone is the
parliamentary process.
44.
The Constitution intended a clear provision for the first part covered fully by
enacted law, the validity of which and the process thereunder being subject to
judicial review independent of any political colour and after proof it was
intended to be a parliamentary process. It is this synthesis made in our
Constitutional Scheme for removal of a Judge.
If the
motion for presenting an address for removal is envisaged by Articles 121 and
124(4) 'on ground of proved misbehaviour or incapacity' it presupposes that
misbehaviour or incapacity has been proved earlier. This is more so on account
of the expression 'investigation and proof used in clause (5) with specific
reference to clause (4). This indicates that 'investigation and proof' of
misbehaviour or incapacity is not within clause (4) but within clause (5).
Use of
the expression 'same session' in clause (4) without any reference to session in
clause (5) also indicates that session of House has no significance for clause
(5) i.e., 'investigation and proof' which is to be entirely governed by the
enacted law and not the parliamentary practice which may be altered by each Lok
Sabha.
62
45.The significance of the word 'proved' before the expression 'misbehaviour or
incapacity' in clause (4) of Article 124 is also indicated when the provision
is compared with Article 317 providing for removal of a member of the Public
Service Commission. The expression in clause (1) of Article 317 used for
describing the ground of removal is 'the ground of behaviour' while in clause
(4) of Article 124, it is, 'the ground of proved misbehaviour or incapaci- ty'.
The procedure for removal of a member of the Public Service Commission is also
prescribed in clause (1) which provides for an inquiry by the Supreme Court on
a reference made for this purpose. In the case of a Judge, the procedure for
investigation and proof is to be in accordance with the law enacted by the
Parliament under clause (5) of Article 124. In view of the fact that the
adjudication of the ground of misbehaviour under Article 317 (1) is to be by
the Su- preme Court, in the case of a Judge who is a higher consti- tutional
functionary, the requirement of judicial determina- tion of the ground is
re-inforced by the addition of the word 'proved' in Article 124(4) and the
requirement of law for this purpose under Article 124(5).
46.
Use of the word 'may' in clause (5) indicates that for the 'procedure for
presentation of address' it is an enabling provision and in the absence of the
law the general procedure or that resolved by the House may apply but the
'investigation and proof' is to be governed by the enacted law. The word 'may'
in clause (5) is no impediment to this view.
47. On
the other hand, if the word 'shall' was used in place of 'may' in clause (5) it
would have indicated that it was incumbent on the Parliament to regulate even
the proce- dure for presentation of an address by enacting such a law leaving
it no option even in the matter of its procedure after the misbehaviour or
incapacity had been investigated and found true. 'Sometimes, the legislature
uses the word "may" out of deference to the high status of the
authority on whom the power and the obligation are intended to be conferred and
imposed.' (See: State of Uttar
Pradesh v. Joginder
Singh, [1964] 2 SCR 197 at 202. Indeed, when a provision is intended to
effectuate a right--here it is to effectuate a constituational protection to
the Judges under Article 124 (4)---even a provision as in Article 124 (5) which
may otherwise seem merely enabling, becomes mandatory.
The
exercise of the powers is rendered obligatory. In Fred- eric Guilder julius v.
The Right Rev. The Lord Bishop of Oxford; the Rev. Thomas Tellsson Carter, [1879-80] 5 A.C. 214 at p. 24zt, Lord
Blackburn said:
,.The
enabling words are construed as compulsory whenever the object of the power is
to effectuate a legal right...." 63 In Punjab Sikh Regular Motor Service, Moudhapura v. The Regional Transport
,Authority, Raipur & Anr, [1966] 2 SCR 221, this Court referring to the
word 'may' in Rule 63 (a) in Central Provinces and Berar Motor Vehicles Rules,
1940, observed:
"....On
behalf of the appellant attention was drawn to the expression 'may' in Rule 63.
But in the context and the language of the rule the word 'may' though
permissive in form, must be held to be obligatory. Under Rule 63 the power to
grant renewal of the counter-signa- ture on the permit in the present case is
conferred on the Regional Transport Authority, Bilaspur. The exercise of such
power of renew- al depends not upon the discretion of the authority but upon
the proof of the particular cases out of which such power arises. 'Ena- bling
words are construed as compulsory when- ever the object of the power is to
effectuate a legal right'. (See: Julius v. Bishop of Oxford, 5 A.C. 214, 244)...." If the
word 'may' in Article124 (5) is given any other meaning that sub-Article would
render itself, to be treated by the Parliament, as superfluous, redundant and
otiose. The power to prescribe a procedure for the exercise of power under
Article 124 (4) could otherwise also be available to the House. The law
envisaged under Article 124(5) is not such a law; but one which would
effectuate the constitution- al policy and philosophy of the machinery for
removal of Judges.
The
use of the word 'may' does not, therefore, neces- sarily indicate that the
whole of clause (5) is an enabling provision leaving it to the Parliament to
decide whether to enact a law even for the investigation and proof of the misbehaviour
or incapacity or not.
The
mere fact that clause (5) does not form a part of clause (4) itself, as appears
to have been considered at one stage when the constitution was being drafted,
does not reduce the significance or content of clause (5). It is likely that
the framers of the Constitution thought of clearly demarcating the boundaries
and, therefore, indicated that upto the stage of proof of misbehaviour of
incapacity the field is covered by a law enacted by the Parliament, the first
pan being covered by clause (5) and the latter by clause (4) with the only
difference that the Parliament was given the option to regulate even the
procedure for the presentation of an address after the misbehaviour or inca-
pacity had been proved by enacting a law for the purpose to make it more
definite and consistent.
64
48.
Similarly, use of word 'motion' to indicate the process of investigation and
proof in the Judges (Inquiry) Act, 1968 because the allegations have to be
presented to the 'Speaker' does not make it 'motion in the House' not-
withstanding use of that expression in Section 6. Otherwise, section 6 would
not say that no further step is to be taken in case of a finding of 'not
guilty'. It only means that when the allegation is not proved, the Speaker need
not commence the process under clause (4) which is started only in case it is
proved. The Speaker is, therefore, a statutory authority under the Act chosen
because the further process is parliamentary and the authority to make such a
complaint is given to Members of Parliament. Moreover, to the enact- ment under
Article 124(5) cannot be a safe guide to deter- mine the scope of Article
124(5).
If
this construction of the inter-connection amongst Articles 118,121, 124 (4) and
124 (5) is the proper one to be placed on them, as indeed we so do, the
provisions of the Judges (Inquiry) Act do not foul with the Constitutional
Scheme.
49. On
scope of the law under Article 124(5), the idea of regulating procedure for (i)
Presentation of the address;
(ii)
Investigation and proof of misbehaviour or incapacity admit of two possible
options of interpretation. The idea of "Presentation of the address"
may be confined to the actual presentation of address by both Houses of the
Parliament; or may be held to cover the entire process from initiation by the
motion in the House till the final act of delivery of the address. If the first
view is correct the law under Article 124(5) would apply at the stage of
investigation and proof of misbehaviour or incapacity and at the final stage of
presentation of address after the motion is adopted by both the Houses. The
motion and its consideration and adop- tion by the House would be outside the
ambit of such law and it would be regulated by the rule of procedure made under
Article I 18. This view is too narrow. By bringing in the rules of procedure of
the House made under Article 118 it introduces an element of uncertainty and
might affect inde- pendence of the judiciary.
50.
Second view is to be preferred. It enables the entire process of removal being
regulated by a law of Par- liament - ensures uniformity and reduces chances of
arbi- trariness. Article I 18 is a general provision conferring on each House
of Parliament the power to make its own rules of procedure. These rules are not
binding on the House and can be altered by the House at any time. A breach of
such rules amounts to an irregularity and is not subject to judicial review in
view of Article 122.
51.
Article 124(5) is in the nature of a special provi- sion intended to regulate
the procedure for removal of a Judge under Article 124(4) which 65 iS not a
part of the normal business of the House but is in the nature of special
business. It covers the entire field relating to removal of a Judge. Rules made
under Article 118 have no application in this field.
52.
Article 124(5) has no comparison with Article 119.
Articles
118 and 119 operate in the same field viz. normal business of the House. It
was, therefore, necessary to specifically prescribe that the law made under
Article 119 shall prevail over the rules of procedure made under Article 118.
Since Article 118 and 124(5) operate in different fields a provision like that
contained in Article 119 was not necessary and even in the absence of such a
provision, a law made under Article 124 (5) will override the rules made under
Article 118 and shall be binding on both the Houses of Parliament. A violation
of such a law would constitute illegality and could not be immune from judical
scrutiny under Article 122(1).
53.
Indeed, the Act reflectS the constitutional philoso- phy of both the judicial
and political elementS of the process of removal. The ultimate authority
remains with the Parliament in the sense that even if the Committee for
investigation records a finding that the Judge is guilty of the charges it is
yet open to the Parliament to decide not to present an address to the President
for removal. But if the Committee records a finding that the Judge is not
guilty, then the political element in the process of removal has no further
option. The law is, indeed, a civilised piece of legislation reconciling the
concept of accountability of Judges and the values of judicial independence.
54.
Indeed, the dissenting note of Dr. L.M. Singhvi, in the Report of the Joint
Committee on the Judges (Inquiry) Bill, 1964 brings into sharp focus the thrust
of the report of the majority. It is to be recalled that the 1964 Bill vested
the power to initiate the process of removal with the Executive. That was found
objectionable and inconsistent with the idea of judicial independence. However,
as to the nature of the authority which was the repository of the power to
investigate, the dissenting opinion, by necessary implication, emphasises the
majority view which ultimately became the law. Dr. Singhvi in his dissent says:
"10.
The present Bill seeks to provide only the modality of a tribunal clothed in
the nomenclature of a Committee. The Committee contemplated in the Bill may
well be consid- ered a tribunal or an "authority" within the meaning
of Articles 226 and 227 of the Consti- tution, rendering itS work subject to
judicial review and supervision. What is more, the Parliament is not left with
any choice in the matter and procedure of parliamen- 66 tary committee has been
wholly excluded. With this I am not in agreement.
11. In
both these matters in respect of which I have dissented from my esteemed
colleagues in the Joint Select Committee, there appears to be an imprint on the
provisions of the Bill of the now defunct Burmese Constitution, which provided
that a notice of such resolution should be signed by not less than one-fourth
of the total membership of either Chamber of Parliament and further that the
charge would be investigated by a special tribunal (S. 143 of the Burmese
Constitution). In the Burmese case, the special tribunal was to consist of the
President or his nominee and the Speakers of the Chamber of Nationalities and
the Cham- ber of Deputies. I feel that the Burmese analogue is neither
inspiring nor instructive, and that the more highly evolved procedures of other
democratic constitutions which have been tried and tested for centuries would
have served us better".
55.
Our conclusions, therefore, on contentions B, C and D are as under:
The
constitutional process for removal of a Judge upto the point of admission of
the motion, constitution of the Committee and the recording of findings by the
Committee are not, strictly, proceedings in the Houses of Parliament. The
Speaker is a statutory authority under the Act. Upto that point the matter
cannot be said to remain outside the Court's jurisdiction. Contention B is
answered accordingly.
Prior
proof of misconduct in accordance with the law made under Article 124(5) is a
condition precedent for the lifting of the bar under Article 121 against
discussing the conduct of a Judge in the Parliament. Article 124 (4) really
becomes meaningful only with a law made under Article 124(5). Without such a
law the constitutional scheme and process for removal of a Judge remains
inchoate. Contention C is answered accordingly.
The
Speaker while admitting a motion and constituting a Committee to investigate
the alleged grounds of misbehaviour or incapacity does not act as part of the
House. The House does not come into the picture at this stage. The provisions
of the Judges (inquiry) Act, 1968 are not unconstitutional as abridging the
powers and privileges of the House. The Judges (inquiry) Act, 1968 is
constitutional and is intra vires. Contention D is disposed of accordingly.
67
RE:
CONTENTION (E)
56. It
is urged by Shri Sibal that having regard to the serious consequences that flow
from the admission of a motion by the Speaker and the decision to constitute a
Committee for investigation, it is incumbent upon the Speak- er to afford an
opportunity to the Judge of being heard before such a decision is taken. It is
urged that such decision has momentous conseqences both to the Judge and to the
judicial system as a whole and that any politically motivated steps to besmear
a Judge will not merely affect the Judge himself but also the entire system of
administra- tion of justice. If a motion brought up with collateral and oblique
motives, it would greatly advance the objects and purposes of Judges (Inquiry)
Act, 1968 if the Judge con- cerned himself is heard before a decision to admit
a ,"notion which has shattering consequences so far as the Judge is
concerned is taken. The minimum requirements of natural justice, appropriate in
the context, says learned counsel, require that the Judge should have an
opportunity of being heard.
57.
Shri Jethmalani, on the contrary, contended that it would be highly
inappropriate that the Speaker should issue notice to a Judge and call upon him
to appear before the Speaker. That apart, Shri Jethmalani said at that stage of
the proceedings where the Speaker merely decides that the matter might bear
investigation no decisions affecting the rights, interests or legitimate
expectation can be said to have been taken. Shri Jethmalam sought to point out
that these proceedings could not be equated with disciplinary or penal
proceedings. The Speaker does not decide anything against the Judge at that
stage.
Referring
to the nature and purpose of such preliminary proceedings Corpus Juris Secundum
(Vol. 48A) says:
"As
a general rule, disciplinary or removal proceedings relating to Judges are sui
generis and are not civil or criminal in nature; and their purpose is to
inquire into judical conduct and thereby maintain standards of judicial
fitness".
[p.614]
As to the stage at which there is a need for notice and opportunity to the
Judge to be heard the statement of the law is:
"The
general rule is that before a Judge may be disciplined, as by removal, he is
entitled to notice and an opportunity to defend even though there is no statute
so requiring.
Ordinarily,
68 the right to defend is exercised in a trial or hearing, as considered infra
51. More specifi- cally the Judge is entitled to notice of the particular
charges against him. In addition, notice of the charge should be given suffi-
ciently in advance of the time for presenting a defence to permit proper
preparation of a showing in opposition". (pp. 613-614) But negativing the
position that the Judge would be entitled to notice even at the preliminary
stage it is stated:
"Investigations
may be conducted into matters relating to judicial conduct as a preliminary to
formal disciplinary proceedings.
A
judiciary commission may conduct an investi- gation into matters relating to
judicial conduct as a preliminary to formal discipli- nary proceedings, and a
court may, under its general powers over inferior courts, appoint a special
commissioner to preside over a prelim- inary investigation. A court rule
providing that a Judge charged with misconduct should be given a reasonable opportunity
in the course of a preliminary investigation to present such matters as he may
choose, affords him more protection than is required by constitutional
provisions". [p. 615]
58.
The position is that at the stage of the provisions when the Speaker admits the
motion under section 3 of the Judges (Inquiry) Act, a Judge is not, as a matter
of right, entitled to such notice. The scheme of the statute and rules made
thereunder by necessary implication, exclude such a right. But that may not
prevent the Speaker, if the facts and circumstances placed before him indicate
that hearing the Judge himself might not be inappropriate, might do so.
But a
decision to admit the motion and constitute a Commit- tee for investigation
without affording such an opportunity does not, by itself and for that reason
alone, vitiate the decision. Contention E is disposed of accordingly.
RE:CONTENTION
(F)
59.
The substance of this contention as presented by the learned counsel for the
petitioner, "Sub-Committee" -- argued with particular emphasis by
Shri R.K. Garg --is that the constitutional machinery for removal of a Judge is
merely a political remedy for judicial misbehaviour 69 and does not exclude the
judicial remedy available to the litigants to ensure and enforce judicial integrity.
It is urged that the right to move the Supreme Court to enforce fundamental
rights is in itself a fundamental right and that takes within its sweep, as
inhering in it, the right to an impartial judiciary with persons of impeccable
integrity and character. Without (his the fundamental right to move court
itself becomes barren and hollow. It is urged that the court itself has the
jurisdiction -- nay a duty -- to ensure the integrity and impartiality of the
members composing it and restrain any member who is found to lack in those
essential qualities and attainments at which public confidence is built.
It is
true that society is entitled to expect the high- est and most exacting
standards of propriety in judicial conduct. Any conduct which tends to impair
public confidence in the efficiency integrity and impartiality of the court is
indeed forbidden. In Corpus Juris Secundum (Vol. 48A) refer- ring to the
standards of conduct, disabilities and privi- leges of Judges, it is observed:
"The
State which creates a judicial office may set appropriate standards of conduct
for a Judge who holds that office, and in many jurisdictions, courts acting
within express or implied powers have adopted or have followed certain canons
or codes of judicial conduct.
The power
of a particular court in matters of ethical supervision and the maintenance of
standards for the judiciary may be exclusive.
Guidelines
for judicial conduct are found both in codes of judicial conduct and in general
moral and ethical standards expected of judi- cial officers by the community.
Canons or codes are intended as a statement of general principles setting forth
a wholesome standard of conduct for judges which will reflect credit and
dignity on the profession and illsolar as they prescribe conduct which is malum
in so as opposed to malum prohibitum they operate to restate those general
prinici- ples that have always governed judicial con- duct.
Although
these canons have been held to be binding on judges and may have the force of
law where promulgated by the courts, except as legislatively enacted or
judicially adopted they do not of themselves have the force and effect of
law". [pp. 593-594] the nature of prescribed conduct it is stated:
70
"A Judge's official conduct should be free from impropriety and the
appearance of impro- priety and generally, he should refrain from participation
in activities which may tend to lessen public respect for his judicial office.
It is
a basic requirement, under general guidelines and canons of judicial conduct,
that a Judge's official conduct be free from impropriety and the appearance of
impropriety and that both his official and personal beha- viour be in
accordance with the highest standard society can expect. The standard of
conduct is higher than that expected of lay people and also higher than that
expected of attorneys. The ultimate standard must be conducted which constantly
reaffirms fitness for the high responsibilities of judicial office and judges
must so comfor'. themselves as to dignify the administration of justice and
deserve the confidence and respect of the public. It is immaterial that the
conduct deemed objectionable is probably lawful albeit unjudicial or that it is
perceived as lowhu- mored horseplay.
In
particular, a judge should refrain from participation in activities which may
tend to lessen public respect for his judicial office and avoid conduct which
may give rise to a reasonable belief that he has so participated.
In
fact even in his private life a judge must adhere to standards of probity and
propriety higher than those deemed acceptable for oth- ers. While a judge does
have the right to entertain his personal views on controversial issues and is
not required to surrender his rights or opinions as a citizen his right of free
speech and free association are limited from time to time by his official
duties and he must be most careful to avoid becoming involved in public
controversies". [pp. 594~596]
In
Sampath Kumar & Ors. v. Union of India & Ors, [1985 ] 4 S.C.C. 458,
dealing with the qualifications, accomplish- ments and attainments of the
members of the Administrative Tribunal, which were intended to substitute for
the High Courts, this court emphasised the qualities essential for discharging
judicial functions.
60.
But we are afraid the proposition that, apart from the constitutional machinery
for removal of a Judge, the judiciary itself has the jurisdiction and in
appropriate cases a duty to enquire into the integrity of one of its members
and restrain the Judge from exercising judicial functions is beset with grave
risks. The court would then indeed be acting as a tribunal1 for the removal of
a Judge.
Learned
counsel supporting the proposition 71 stated that the effect of restraining a
Judge from exercis- ing judicial functions is not equivalent to a removal be- cause
the conditions of service such as salary etc. of a Judge would not be impaired.
But we think that the general proposition that the court itself has such a
jurisdiction is unacceptable. It is productive of more problems then it can
hope to solve.
61.
The relief of a direction to restrain the Judge from discharging judicial
functions cannot be granted. It is the entire Constitutional Scheme including
the provisions relat- ing to the process of removal of a Judge which are to be
taken into account for the purpose of considering this aspect. It is difficult
to accept that there can be any right in anyone running parallel with the
Constitutional Scheme for this purpose contained in clauses (4) and (5) of
Article 124 read with Article 121. No authority can do what the Constitution by
necessary implication forbids. Inciden- tally, this also throws light on the
question of interim relief in such a matter having the result of restraining
the Judge from functioning judicially on initiation of the process under the
Judge (Inquiry) Act, 1968. The Constitu- tional Scheme appears to be that
unless the alleged misbeha- viour or incapacity is 'proved' in accordance with
the provisions of the law enacted under Article 124(5) and a motion for
presenting an address for removal of the Judge on the ground of proved
misbehaviour or incapacity is made, because of the restriction contained in
Article 121, there cannot be a discussion about the Judge's conduct even in the
Parliament which has the substantive power of removal under Article 124(4). If
the Constitutional Scheme therefore is that the Judge's conduct cannot be
discussed even in the Parliament which is given the substantive power of
removal, till the alleged misconduct or incapacity is 'proved' in accordance
with the law enacted for this purpose, then it is difficult to accept that any
such discussion of the conduct of the Judge or any evaluation or inferences as
to its merit is permissible according to law elsewhere except during investigation
before the Inquiry Committee constituted under the statute for this purpose.
The indication, therefore, is that interim direction of this kind during the
stage of inquiry into the alleged misbehaviour or incapacity is not
contemplated it being alien to our Constitutional Scheme.
62..The
question of propriety is, however, different from that of legality. The absence
of a legal provision, like Article 3 17(2) in the case of a Member of Public
Service Commission, to interdict the Judge faced with such an inquiry from
contining to discharge judicial functions pending the outcome of the inquiry or
in the event of a finding of misbehaviour or incapacity being proved till the
process of removal under Article 124(4) is complete, does not necessarily indicate
that the Judge shall continue to function during that period. That area is to
be covered by the 72 sense of propriety of the learned Judge himself and the
judicial tradition symbolised by the views of the Chief Justice of India. It
should be expected that the learned Judge would be guided in such a situation
by the advice of the Chief Justice of India, as a matter of convention unless
he himself decides as an act of propriety to abstain from discharging judicial
functions during the interregnum. Since the learned Judge would continue to
hold the office of a Judge unless he resigns or is removed, an arrangement to
meet the situation has to be devised by the Chief Justice.
The
Constitution while providing for the suspension of a Member of a Public Service
Commission in Article 3 17 (2) in a similar situation has deliberately
abstained from making such a provision in case of higher constitutional
function- aries, namely, the Superior Judges and President and Vice- President
of India, facing impeachment. It is reasonable to assume that the framers of
Constitution had assumed that a desirable convention would be followed by a
Judge in that situation which would not require the exercise of a power of
suspension. Propriety of the desirable course has to be viewed in this
perspective. It would also be reasonable to assume that the Chief Justice of
India is expected to find a desirable solution in such a situation to avoid
embarrass- ment to the learned Judge and to the Institution in a manner which
is conducive to the independence of judiciary and should the Chief Justice of
India be of the view that the interests of the institution of judiciary it is
desirable for the learned Judge to abstain from judicial work till the final
outcome under Article 124(4), he would advise the learned Judge accordingly. It
is further reasonable to assume that the concerned learned Judge would
ordinarily abide by the advice of the Chief Justice of India. All this is,
however, in the sphere of propriety and not a matter of legal authority to,
permit any court to issue any legal directive to the Chief Justice of India for
this purpose.
Accordingly
Contention F is rejected.
RE:CONTENTION
(G)
63.
This relates to the mala fides alleged against the Speaker. The averments in
this behalf are identical in both Raj Birbal's and Sham Ratan Khandelwal's
peti- tions. We may notice the relevant averments:
"It
is, therefore, disconcerting to note that the Speaker acted contrary to
Constitutional practice. It is assumed that this high Consti- tutional
functionary would have known of the well settled and established constitutional
practice in regard to the fact that motions lapse with the dissolution of the
House. The action of the Speaker, therefore, in admitting the motion in the
manner that he did, smacks of mala fides and, therefore, de- 73 serves to be
struck down.
The
action of the Speaker is mala fide on yet another count. The Speaker has not
resigned from the primary membership of the Janta Dal.
The
petitioners verily believe that the first signatory to the motion is the
erstwhile Prime Minister of India Shri V.P. Singh who happens also to be the
leader of the Janta Dal. The signatories to the said motion, the petition- ers
verily believe, belong mostly to the Janta Dal, though the details of this fact
are not precisely known to the petitioners. The Speak- er, as has been
indicated earlier, ought to have allowed parliament to look into the matter and
discuss as to whether or not the motion ought to be admitted. The Speaker ought
to have at least tabled the motion in the House to ascertain the views of the
Members of parliament belonging to various Houses. The Speaker, to say the
least, ought to have transmitted all materials to Justice Ramaswami and sought
a response from him before attempt- ing to admit the motion. The Speaker ought
to have dealt with the motion much earlier and transmitted to Justice
Rammaswami all the materials as well as the views that might have been
expressed to him in the course of his consultations which enabled him to come
to a decision. The Speaker in the very least ought to have ascertained the
wishes of the House in this regard. The Speaker ought not to have decided to
admit the motion in the manner he did on the last evening of the 9th Lok Sabha
amidst din and noise, when what he spoke was also not entirely audible in the
House. The Speaker is a high Constitutional functionary and ought to have
exercised his functions in the highest traditions of the office of this high
constitutional function- ary. The Speaker ought also not to have dealt with the
motion, the prime movers of which are members of his own party. 'the Speaker
ought to have disqualified himself in this regard and placed the matter for the
discussion of the House. The conduct of the Speaker in this entire episode was
unbecoming of a high Con- stitutional functionary. The action of the Speaker is
mala fide and deserves to be struck down on this count alone." The
averments as to mala fides are intermixed with and inseparable from touching
the merits of certain constitu- tional issues. Indeed, mala fides are sought to
be impugned to the Speaker on the grounds that he did 74 not hear the Judge,
did not have the motion discussed in the House etc. We have held these were not
necessary.
64.
But a point was made that the Speaker not having entered appearance and denied
these allegations on oath must be deemed to have admitted them. It appears to
us that even on the allegations made in the petition and plea of mala fides
which require to be established on strong grounds, no such case is made out. A
case of mala fides cannot be made out merely on the ground of political
affiliation of the Speaker either. That may not be a sufficient ground in the
present context. At all events, as the only statutory au- thority to deal with
the matter, doctrine of statutory exceptions or necessity might be invoked.
Contention G cannot therefore be accepted.
RE
:CONTENTION (H)
65.
This pertains to the locus standi of "Sub-Committee on the Judicial
Accountability" and the Supreme Court Bar Association to maintain the
proceedings. If this is true, then the petitioners in Transfer Petition No. 278
of 1991 and other writ petitions challenging the Speaker's decision would not
also have the necessary standing to sue. The law as to standing to sue in
public interest actions had under- gone a vast change over the years and
liberal standards for determining locus standi are now recognised. The matter
has come to be discussed at considerable care and length in S.P. Gupta &
Ors. etc. v. Union of India & Ors. etc. etc.,
[1982] 2 SCR 365. The present matter is of such nature and the constitutional
issues of such nature and importance that it cannot be said that members of the
Bar, and particularly the Supreme Court Bar Association have no locus standi in
the matter. An elaborate re-survey of the principles and prece- dents over
again is unnecessary. Suffice it to say that from any point of view the
petitioners satisfy the legal equip- ments of the standing to sue. We,
therefore, reject the Contention H.
66. We
are constrained to say that certain submissions advanced on the prayer seeking
to restrain the learned judge from functioning till the proceedings of the
committee were concluded lacked as much in propriety as in dignity and courtesy
with which the learned judge is entitled. The arguments seemed to virtually
assume that the charges had been established. Much was sought to be made of the
silence of the Judge and his refusal to be drawn into a public debate. If we
may say so with respect, learned judge was entitled to decline the invitation
to offer his explanation to his detractors, No adverse inference as to
substance and validity of the 75 charges could be drawn from the refusal of the
learned judge to recognise these forums for his vindication. While the members
of the bar may claim to act in public interest they have, at the same time, a
duty of courtesy and particular care that in the event of the charges being
found baseless or insufficient to establish any moral turpitude, the judge does
not suffer irreparably in the very process. The ap- proach should not incur the
criticism that it was calculated to expose an able and courteous judge to
public indignity even before the allegations were examined by the forum
constitutionally competent to do so. We wish the level of the debate both in
and outside the Court was more decorous and dignified. Propriety required that
even before the charges are proved in the only way in which it is permitted to
be proved, the Judge should not be embarrassed. The constitutional protection
to Judges is not for theft person- al benefit; but is one of the means of
protecting the judi- ciary and its independence and is, / therefore, in the
larger public interest. Recourse to constitutional methods' must be adhered to,
if the system were to survive. Learned Judge in his letter to the
Registrar-General which he de- sired to be placed the Court had, indeed,
expressed deep anguish at the way the petitioners had been permitted them-
selves to sit in judgment over him and deal with him the way they did.
RE:
CONTENTION (I)
67.
This argument suggests that the court should, having regard to the nature of
the area the decision of the court and its writ is to operate in, decline to
exercise its jurisdiction, granting it has such jurisdiction. It is urged that
any decision rendered or any writ issued might, in the last analysis, become
futile and infructuous as indeed the Constitution of and investigation by the
committee are not, nor intended to be, an end by themselves culminating in any
independent legal consequences but only a proceeding prelim- inary to and
preceding the deliberations of the House on the motion for the presentation of
an address to the President for the removal of a Judge. The latter, it is
urged, is indisputably with in the exclusive province of the Houses of
parliament over which courts exercise no control or juris- diction. The
constitution of and the proceedings before the committee are, it is urged,
necessarily sequential to and integral with the proceedings in the Houses of
Parliament.
SinCe
the committee and its investigations have neither any independent existence nor
separate legal effect-otherwise than as confined to, and for the purposes and
as part of the possible prospective proceedings in the Houses of Parlia- ment,
the court should decline to exercise jurisdiction on a matter which is of no
independent legal consequence of its own and which, in the last analysis, falls
and remains entirely in an area outside the courts' jurisdiction. It is urged
76 that both from the point of view of infructuousness, propri- ety and
futility, the court should decline the invitation to interfere even though that
part of the proceedings pertain- ing to the constitution of the committee might
not strictly be within the exclusive area of Parliament. Courts, it is urged,
would not allow its process to expect in a matter which will eventually merge
in something over which it will have no jurisdiction.
68.
The elements of infructuousness, it is suggested, arise in two areas. The first
is, as is posited, what should happen if the Houses of Parliament choose to say
that in their view the motion has lapsed? Would the court then go into the
legality of the proceedings of the Houses of Par- liament and declare the
decision of the House void? The second area of the suggested source of
infructuous- ness is as to the consequences of the position that the Houses of
Parliament would, notwithstanding the report of the committee, be entitled to
decide not to present an address to the President to remove the Judge. It is,
it is said, for the House of Parliament to discipline the Govern- ment if the
House is of the view that Government is guilty of an illegal inaction on the
Speaker's decision as ulti- mately the House has dealt with the committee's
report.
69. On
the first point there is and should be no diffi- culty. The interpretation of
the law declared by this court that a motion under section 3(2) of the Judges
(inquiry) Act, 1968, does not lapse upon the dissolution of the House is a binding
declaration. No argument based on an assumption that the House would act in
violation of the law need be entertained. If the law is that the motion does
not lapse, it is erroneous to assume that the Houses of Parliament would act in
violation of the law. The interpretation of the law is within the exclusive
power of the courts.
70. So
far as the second aspect is concerned, what is now sought by the petitioners
who seek the enforcement and implementation of the Speaker's decision is not a
direction to the committee to carry out the investigation. Such a prayer may
raise some issues peculiar to that situation. But here, the Union. Government has sought to interpret the legal
position for purposes of guiding its own response to the situation and to regulate
its actions on the Speaker's decision. That understanding of the law is now
found to be unsound.
All
that is necessary to do is to declare the correct constitutional position. No
specific writ of direction need issue to any authority. Having regard to the
nature of the subject matter and the purpose it is ultimately intended to serve
all that is necessary is to declare the legal and constitu- 77 tional position
and leave the different organs of the State to consider matters falling within
the orbit of their re- spective jurisdiction and powers. Contention I is
disposed of accordingly.
71. In
the result, for the foregoing reasons, Writ Petition Nos. 491 and 541 of 1991
are disposed of by the appropriate declarations of the law as contained in the
judgment.
Writ
Petition Nos. 542 and 560 of 1991 are dismissed.
Transfer
Petition No. 278 of 1991 is allowed. Writ Petition No. 1061 of 1991 is
withdrawn from the Delhi High Court. The transferred writ petition is also
dismissed.
SHARMA,
J. I have gone through the erudite Judgment of my learned Brothers, and I
regret that I have not been able to persuade myself to share their views. In my
opinion, all these petitions are fit to be dismissed.
The
stand of the petitioners in W.P. (C) Nos. 491 of 1991 and 541 of 1991 is that
the inquiry with respect to the alleged misbehaviour of Mr. Justice V.
Ramaswami, the third respondent in W.P. (C) No. 491 of 1991, which was referred
to a Committee under the provisions of the Judges (inquiry) Act, 1968 ought to
proceed and accordingly the Union of India must take all necessary steps.
2. The
main arguments on their behalf have been ad- dressed by Mr. Shanti Bhushan, Mr.
Ram Jethmalani and Mr. R.K.Garg, all appearing for the petitioners in W,P. (C)
No. 491 of 1991, which has been treated as the main case. Al- though in
substance their stand is similar, they are not consistent on some of the points
debated during the heating of the case. They have been supported in general
terms by Ms. Indira Jaising and Mr. P.P. Rao, the learned counsel representing
the Supreme Court Bar Association, the peti- tioner in W.P. (C) No. 541 of
1991, and for the sake of convenience the petitioners in these two cases shall
be hereinafter referred to as the petitioners. The opposite point of view has
been pressed by Mr. Kapil Sibal, on behalf of Mrs. Raj Birbal, the petitioner
in T.P. (C) No. 278 of 1991, Mr. V.R.Jayaraman intervenor in W.P. (C) No. 491
of 1991 and Mr. Shyam Ratan Khandelwal, the petitioner in W.P.(C) No. 560 of
1991; and in view of their stand, they shall be referred to as respondents in
this judgment.
3. The
Committee for the investigation into the alleged misbehaviour of the third
respondent was constituted on 12.3.1991 under the provi- 78 sions of the Judges
(inquiry) Act, 1968 (hereinafter re- ferred to as the Act) by Shri Rabi Ray,
the then Speaker of the Lok Sabha, not a party in W.P. (C) Nos. 491 of 1991 and
541 of 1991, but impleaded by Mr. Shyam Ratan Khandelwal as respondent No. 1 in
W.P. (C) No. 560 of 1991. The Lok Sabha was dissolved the very next day, i.e.
13.3.1991.
4. Mr.
Attorney General appearing on behalf of the Union of India has contended that
this Court should affirm the views expressed by the Union of India in its
affidavit that on dissolution of the last Lok Sabha, the Motion against the
third respondent lapsed and the matter cannot proceed further.
5.
According to the case of the petitioners, once the Committee was constituted,
the entire inquiry must be com- pleted in accordance with the provisions of the
Act, and the stand of the Union Government that the Motion in this regard
lapsed on the dissolution of the House is fit to be reject- ed. The Union
Government, in the circumstances, is under a duty to act in such manner by way
of providing funds et cetera, that it may be practically possible for the
Commit- tee to complete its task. Since the obligation to act ac- cordingly,
arises under the Act, this Court has full author- ity to enforce the
performance of the statutory duty; and having regard to the circumstances in
the present case it is appropriate to exercise that power.
The
petitioners further pray that in the meantime the third respondent should not
undertake to dispose of judicial matters, and since he has not himself
refrained from so doing, no judicial work should be allotted to him. The Chief
Justice of India has also been impleaded as a party respond- ent but this Court
while issuing Rule Nisi after hearing learned counsel for the parties, did not
consider it expedi- ent to issue notice to the Chief Justice. A prayer for
interim direction in this regard was also rejected. During the hearing of the
cases another application to the same effect was filed and was heard at
considerable length and ultimately rejected by a reasoned order.
6. Mr.
Sibal, the learned counsel for the respondents has challenged the
maintainability of the writ petitions, on the ground that the matter is not
justiciable. It was fur- ther argued that since the Speaker proceeded to admit
the Notice of Motion initiated by 108 Members of the Lok Sabha without
reference to the House, the order of the Speaker was void, and the constitution
of the Committee is ultra vires.
The
Speaker's order has been challenged also on the grounds of violation of
principles of natural justice and mala fides. So far as the effect of the
dissolution of the 79 last Lok Sabha is concerned the respondents have
supported the stand of the Union Government that the Motion has lapsed, but
consistent with their plea. of non-justiciabili- ty, Mr. Sibal has indicated
that it is for the House to decide this issue.
Long
arguments were addressed by the learned counsel for the parties on the correct
interpretation of Article 124(4) and (5) and the Act, and Mr. Sibal has
contended that if the construction suggested by him of the provisions of the
Act are not accepted, the Act has to be struck down either in its entirety or
in part as ultra vires the Constitution.
In
W.P. (C) No. 560 of 1991 Mr. Shyam Ratan Khandelwal has, inter alia, prayed for
declaring the Judges (Inquiry) Act, 1968 and the Rules framed thereunder as
ultra vires Article 121 and 124(5) of the Constitution; for quashing the
decision of the Speaker; and, for issuing a Writ of Mandamus to the Committee
not to embark upon or proceed with the inquiry. He also wants a declaration
that the Chief Justice of India cannot withhold allocation of work to the third
respondent for discharging his judicial functions, and seeks for consequential
directions in this regard. During the course of his argument, Mr. Sibal, in
reply to a query from the Bench, clarified the position that if his plea of
non- justiciability is accepted, all the petitions may have to be dismissed.
7. It
is appropriate that the point relating to the jurisdiction of this Court, and
for that matter of any court in India, is considered first. If the stand of the respond- ents is correct on
this issue, it may not be necessary to deal with the other questions raised by
the parties. In support of his argument, Mr. Sibal has relied upon the
provisions of Article 122(2) of the Constitution read with Article 93, and has
urged that the present matter relates to the conduct of the business of the Lok
Sabha and is included within the functions of regulating its procedure, and as
such the Speaker who is a Member and officer of the Parlia- ment cannot be
subjected to the jurisdiction of any Court in respect of the exercise of those
powers. The questions whether the Motion on the basis of which the present
inquiry by the Committee has been ordered has lapsed or not and whether the
inquiry should further proceed or not are for the House to determine, and its
decision will be final.
Reference
was also made to Article 100, but the learned counsel clarified his stand that
in the present context a special majority as indicated in Article 124(4) will
have to be substituted for a simple majority mentioned in Article 100(1). It
has been contended that the Speaker was not free to take a decision by himself
to refer the matter to the Committee for inquiry and that too without hearing
the Judge concerned; and in any event his order is subject to any decision 80
to the contrary of the House arrived at, at any stage.
Emphasis
was laid on the concept of Separation of State powers amongst its three wings,
and it was claimed that all matters within the House including moving of
motions, ad- journment motions and debates are beyond the purview of judicial
scrutiny. Counsel said that it does not make any difference that in the present
case it is the Union Govern- ment, which has taken a decision for itself on the
disputed issue; and the petitioners cannot use this as an excuse for
approaching the Court. The Court should refuse to entertain the writ petitions
on this ground, as it cannot be persuaded to do indirectly what it cannot do directly.
The crux is that the matter is in the exclusive domain of the Parlia- ment.
8.
Although in my final conclusion I agree with the respondents that the courts
have no jurisdiction in the present matter, I do not agree with Mr. Sibal's
contention based on an assumption of the very wide and exclusive juris- diction
of the Parliament in the general terms, as indicated during his argument. His
stand that the Speaker could not have taken a decision singly also does not
appear to be well founded. He strenuously argued that since the matter relat-
ing to the removal of a Judge is from the very beginning within the exclusive
control of one of the Houses of the Parliament every decision has to be taken
by the entire House and if necessary a debate will have to be permitted.
As a
result, the bar on discussion in the House on the Judges' conduct will
disappear from the initial stage it- self, but that cannot be helped. He relied
upon the inter- pretation of Mr. M.C.Setalvad on clauses 4 & 5 of Article
124 as stated by him before the Joint Committee on the Judges (inquiry) Bill,
1964 (being Bill No. 5 of 1964 which was ultimately dropped) and his view that
the desired object of avoiding debate on the conduct of a Judge in the Parlia-
ment can be achieved only by the Speaker carefully exercis- ing his discretion
after taking into account the impropriety of such a debate.
9.
Although the powers of State has been distributed by the Constitution amongst
the three limbs, that is the Legis- lature, 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 involving adjudication of
disputes is sub- ject to several exceptions. Let us consider a case in which an
individual citizen approaches the Court alleging serious violation of his
fundamental rights resulting in grave and irreparable injury, arising as a
consequence of certain acts, and the decision of 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 courts.
Similarly
a Member of Parliament or of a State Legislature who 81 may have a just
grievance in matters covered by Article 122(2) or 212(2) 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 theft 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
differ- ent 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 citi- zens, 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 threatened area must be shifted to some
safe place before starting of the war.
The
examples can be multiplied. Generally, questions involv- ing adjudication of
disputes are amenable to the jurisdic- tion of the courts, but there are
exceptions, not only those covered by specific provisions of the Constitution
in ex- press terms, but others enjoying the immunity by necessary implication
arising from established jurisprudential princi- ples involved in the
Constitutional scheme. 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 been
excluded from the purview of the courts under our Constitution.
10.
Judicial power of the State in the comprehensive sense of the expression as
embracing all its wings is dif- ferent from the judicial power vested or
intended to be vested in the courts by a written Constitution. The issue which
arises in the present case is whether under the Con- stitutional 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 courts or in any event of
this Court. On a close examination of the Constitution it appears to me that a
special pattern has been adopted with respect to the removal of the members of
the three organs of the State---The Executive, the Legislature and the Judici-
ary--at the highest level, and this plan having been con- sciously included in
the Constitution, has to be kept in mind in construing its provisions. The
approach appears to be that when 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 other than where the problem
has arisen, to be decided.
82
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 func- tions in accordance with the advice tendered by the
Council of Ministers, the matter relating to his impeachment has been entrusted
by Article 61 to the Parliament. In the constitution of the two Houses of the
Parliament and the Legislatures of the States, the people of 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 the matter to the rele- vant
House itself, the Constitution has provided for a different machinery, not
within the control of the Legisla- ture. The decision on such a dispute is left
to the Presi- dent, and he is not to act on the advice of the Council of
Ministers, but in accordance with the opinion of the Elec- tion Commission
which has been held by this Court to be a Tribunal falling squarely within the
ambit of Article 136 of the Constitution in All Party Hill Leaders Conference
v.M..A. Sangma, [1978] 1 SCR 393 at 411. Thus, the power to decide a dispute is
not to be exercised by the Legislature, but lies substantially with the courts.
Consistent with this pattern clause (4) of Article 124 in emphatic terms
declares that a Judge of the Supreme Court or the High Court shall not be
removed from his office except on a special majority of the Members of each
House of Parliament. Both the Execu- tive and the Judiciary are thus excluded
in this process.
The
provisions of the Constitution and the Act and relevant materials which ,viII
be discussed later all unmistakably indicate this Constitutional plan.
12.
The scheme, as mentioned above, which according to my reading of the
Constitution has been adopted, cannot be construed as lack of trust in the
three organs of the State.
There
are other relevant considerations to be taken into account while framing and
adopting a written constitution, which include the assurance to the people that
the possibil- ity 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 in 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 him- self unfit to hold the office, they are of a nature which relates
chiefly to the injuries done immediately to the society itself. Any proceeding
for their removal will, 83 for this reason seldom fail to agitate the passions
of the whole community 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- istration of public affairs speak for themselves.
13.
Mr. Sibal has further relied on Hamilton stating that "the awful 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 entrusted to the parlia- ment and further in that
spirit the 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 republic no
man can be born with a right to public office, Under such a system of gov-
ernment, office, whether elective or appointive, is in a sense a political
privilege. The grant of this privilege flows from the political power of'the
people, and so, ulti- mately must it be taken away by the exercise of the
politi- cal 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 inappropri- ateness of the Supreme Court of
United States of America to be entrusted with the power of impeachment 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 execu- tion 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 indispens- able towards
reconciling the people to their decision". I am not sure whether these are
the.precise considerations which appealed to the framers 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 function- aries in three vital limbs
of the State, received special treatment by the Constitution. My conclusion is
further supported by the materials discussed below.
14.
Learned counsel for the parties referred to the historical background of the
relevant provisions of the Constitution and the Act, as also to the
constitutional provisions of several other countries, as aid to the inter-
pretation of the legal position in relation to removal of Judges of the
superior courts. Mr. Sibal laid great emphasis on the evidence of Mr. 84
Setalvad and several other persons before the Joint Commit- tee on the Judges
(inquiry) Bill, 1964. His argument is that the Bill was dropped as a result of
the opinion expressed before the Joint Committee, and consequently another Bill
was drafted which was ultimately adopted by the Parliament as the 1968./Act.
The provisions of the earlier Bill, objec- tions raised thereto, and the fact
that the Act of 1968 was passed on a subsequent Bill, reconstructed immediately
after the decision to drop the original 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 behalf of the peti- tioners as supporting their
stand. In my view, it is permis- sible to take into consideration the entire
background as aid to interpretation. 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 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
question, it is not only legit- imate 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 con- clusion".
In B.
Prabhakar Rao v. State of Andhra Pradesh, [1985] Suppl. 2 SCR 573, the observa-
tions at p. 591, quoted below, are illuminat- ing:- "Where internal aids
are not forthcoming, we can always have recourse to external aids to discover
the object of the legislation. Exter- nal aids are not ruled out. This is now a
well settled principle of modern statutory con- struction. Thus 'Enacting
History' is rele- vant: "The enacting history of an Act is the surrounding
corpus of public knowledge rela- tive to its introduction into Parliament as a
Bill, and subsequent progress through, and ultimate passing by, Parliament. In
particular it is the extrinsic material assumed to be within the contemplation
of Parliament when it passed the Act." Again "In the period im- 85
mediately following its enactment, the history of how an enactment is
understood forms part of the contemporanea expositio, and may be held to throw
light on the legislative inten- tion. The later history may, under the doc-
trine 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 admin- istering an Act, or by any other authority
concerned with the Act, may be taken into account as persuasive authority on
the meaning of its provisions". Justice may be blind but it is not to be
deaf. Judges are not to sit in sound proof rooms.
Committee
reports, Parliamentary debates, Policy statements and public utterances of
official spokesmen are of relevance in statu- tory interpretation. But 'the
comity, the courtsey and respect that ought to prevail between the two prime
organs of the State, the legislature and the judiciary', require the courts to
make skilled evaluation of the extra textual material placed before it and
exclude the essentially unreliable. "Nevertheless 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 legisla- tor'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 superan- nuation, the agitation consequent upon it, and the agreement that
followed the agitation were all taken into considera- tion. I, accordingly,
propose to briefly state the relevant background of both the Constitutional
provisions and of the Act.
15. At
the time of framing of the Constitution of India, the Constitutions 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 terms similar to section 72(ii)
of the Commonwealth of Australia COnstitution Act (1900) except the last
sentence in the following terms:- "Further provision 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 suggestion to entrust the matter
to the Supreme Court or a Committee of a 86 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 position 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."
16.
Before further considering the Debates and the other steps in flaming of the
Constitution, it may be useful to appreciate the relevance and importance of
the point which has an impact on the controversial issue before us. Accord- ing
to the petitioners, the question relating to the 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 being in the picture earlier, does not
have any control over the Committee, which is to function purely as a statutory
body, and, therefore, amenable to the jurisdiction of this Court. If this stand
is correct, what was the position 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 misbeha- viour 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 enactment 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 power 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.
17.
Mr. Sibal was emphatic in claiming that clause (5) was enabling in nature, and
clause (4) could not be inter- preted as dependent on clause (5). He relied on
Mr. Setal- vad'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 the leading case Writ
Petition (C) No. 491 of 1991, has been that clause (5) was merely enabling, but
not in the sense as stated by Mr. Setalvad in 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 either to proceed according to the said Act or to act
independently ignoring the same. Mr. Shanti Bhushan said that this is not
permissi- ble. Once the 1968 Act was enacted, the Parliament is bound to follow
it, but earlier 87 it was free to proceed as it liked. He, however, was quite
clear in his submission that the exercise of power under clause (4) could not
be said to be conditional on the enact- ment 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.
18.
The other learned advocates appearing for the peti- tioners 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 Commit- tee
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 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 ini- tially of the view as Mr. Shanti
Bhushan on the co-relation of clause (4) and (5), but after some discussion, he
recon- sidered 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 Parliament was bound to proceed in accordance with the provisions
of the Act.
19.
Now coming back to the Debates, Mr. Santhanam sug- gested an amendment for
including more details to which the answer of Sir Alladi was as follows:
"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 provision for the removal of Judges more than that in any other
Constitution in the world".
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 Legisla-
ture will abuse that power". He rejected the idea of making 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 procedure to
be adopted in any Con- stitution. You will not find it in any Constitution, not
even in the German Constitution which is particularly de- tailed, 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 of Judges". Some
members strong- ly suggested that the Supreme Court of India or a number of
sitting Judges of the Court should be 88 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 judg- ment over
a Chief Justice of the Supreme Court. Are you really serious about enhancing
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 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.
Although
as was clear from the statements of Sir Alladi as also the language used, the
intention of the Sub-commit- tee 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 including the entire provisions in
one single clause, they were divided and put in two separate clauses and while
so doing, the language was slightly changed to emphasise the limited scope 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 today. There is no indica- tion of any limitation on the power of
the Parliament to decide the manner in which it will obtain a finding on
misbehaviour 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- mand.
In the present context, there does not appear to be any reason to assume that
it has been used in its extraordi- nary meaning. It is significant to note that
while fixing the tenure of a Judge in clause (2) of Article 124, proviso Co)
permits the premature removal in the manner provided in clause (4) without
mentioning clause (5) at all. The signif- icance 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 a 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 conditional on the enactment of a law
under clause (5), and the reason for inserting 89 clause (5) in Article 124
was, as indicated by Sir Alladi, merely for elaborating the provisions.
20.
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 Arti- cle.
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 importance 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, irrespec- tive 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
Commit- tee is within the control of the House of the Parliament so as to
exclude an outside interference by any other authori- ty, including the courts.
21. 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 construction of the other
provisions of the Constitution and of the Act on Article 121, the Act provides
useful assist- ance; and its importance has been greatly enhanced in view of the
points urged in the arguments of the learned counsel for the parties before us.
All the learned advocates for the petitioners 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 90 this premise that the writ petitions
of the petitioners have been filed and the reliefs are prayed for. Mr. Sibal
repre- senting the respondents has halfheartedly challenged the Act, making it
clear at the same time that if his interpre- tation 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 there-
under and if the Act itself goes, the reference to the Committee of Inquiry
itself will have to be held as nonex- istent 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 ques- tion as to 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.
22.
The Judges (inquiry) Act, 1968 is a short enactment containing only seven
sections. Section 1 gives the title and the date of commencement, Section 2
contains definitions and Section 7 deals with power to make rules. The
expression "motion" which has not been defined in the Act is signifi-
cant in the scheme and naturally, therefore, has been sub- ject of considerable
discussion during the hearing of these cases. The Lok Sabha Rules flamed under
Article 118 of the Constitution deal with "motions" in Chapter XIV.
There are separate rules of procedures for conduct of business adopted by the
Rajya 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 presenting an address to the Presi-
dent for the removal of a Judge, signed, in the case of a notice given in the
Lok Sabha, by not less than 100 members, and in the case of a notice given in
the Rajya Sabha, by not less than 50 members of the House, the Speaker or the
Chair- man, as the case may be, after consulting such persons as he deems fit,
as also such relevant materials 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 understood 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 into account.
Rule
185 states that notice of "motion" shall be given in writing
addressed to the Secretary General and its' admissi- bility should satisfy the
conditions detailed in Rule 186.
Rule
187 directs the 91 Speaker to examine and decide the admissibility of a
"mo- tion" or a part thereof. Rule 189 says that if the Speaker
admits notice of a "motion" and no date is fixed for discus- sion of
such "motion", it shall be notified 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 (1)
is admitted, the Speaker "shall keep the motion pending" and
constitute a Committee for investigation into the allegations 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.
23.
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"
which has to remain pending, as directed by Section 3(2) is outside the House
and the Speak- er while admitting it acts as a statutory authority and not qua
Speaker of the Lok Sabha, as is the case of the peti- tioners before us, the
petitioners will not have any base to build their case on. If the Speaker has
admitted the "mo- tion" in the capacity as the Speaker and
consequently, therefore, representing the House, and has constituted a
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 de- claring that it remains
pending in the House. Section 6 deals with the matter from the stage when the
report of the Committee is ready and sub-section (1) 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 (1) of Section 2 shall,
together with a report of the Committee, be taken for consideration by the
House or the Houses of Parliament in which it is pending".
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 corroborated by
the language used in Proviso to Section 3 (2) which deals with cases where no-
tices 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 92 both
Houses" and where such "motion"has been admitted "in both
Houses", the Committe shall be constituted jointly by the Speaker and the
Chairman. The rule making power dealt with in Section 7 is in the usual terms
enumerating some of the subject matters without prejudice to the generality of
the power, and permits the Joint Committee of both Houses of Parliament to
frame the rules, and accordingly, the Judges (Inquiry) Rules, 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 subrule (1) and the
motion shall be put to vote together in each House of 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 consist- ently 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.
24.
The scope of the Act and the Rules is limited to the investigation in pursuance
of a "Motion" admitted by the Speaker. At the Conclusion of the
investigation the Commit- tee has to send the report to the Speaker (or the
Chairman as the case may be) along with a copy of the original Mo- tion. 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:
"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 contemplate is the
original Motion to be taken up for consideration by 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 remains on which the Act would
operate. The concept of the original Motion 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
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 of 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 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 if the 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 Constitution 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 terms and spirit, and as a matter of fact there is no
complaint of any misuse during the last more than 41 years. The question,
however, is whether it will not be feasible for the Speaker to maintain the
discipline, if the Motion on admission becomes 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 matter 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
pendency of the motion in the House, therefore, cannot be a ground to violate
Article 121.
26. Mr
Sibal, however, claimed that the members of the House are entitled to express
their opinion on the proposed endictment from 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 121. I am afraid, the statements of
Mr. Setalvad, referred to above, have not been properly appeciated by either
side. The modified 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 substantially vested the power of removal of a Judge in the
Executive, and kept the Parliament out of the picture until the receipt of a
report on the 94 alleged misbehaviour or incapacity. If that Bill had been
passed, the effect would have been that the entire proceed- ing beginning with
the initiation of the inquiry and con- cluding with the report would have
remained completely outside the House, an interpretation which is being
attempt- ed by the present petitioners before us, on the present Act too. The
objection to the entrustment of the power to the Executive was mainly on the
ground 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 considera- tion) the Parliament would be completely
kept out until a finding of another body was received by the House and this
would militate against the constitutional scheme. In this background when his
attention was drawn to the bar of Arti- cle 121 he replied that it was possible
to prevent a prema- ture discussion in the Parliament, by the Speaker
exercising his authority with discretion. He referred to the Lok Sabha Rules in
this context and furher recommended for the Speaker to be vested with larger
powers. He was emphatic that the President should not be entrusted with the
matter, even at the initial stage, and that it should be left in the hands of
the Speaker 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 of the
Parliament which could exercise its powers through the respective
representatives Speaker and the 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 from the original Bill of 1964. The report of
the JointCommittee (presented on 17th May, 1966) sets out the observations of the Committee with regard to
the principal changes proposed in the Bill. Para-
graph 17 of the Report dealing with clause (2) states that the expression
"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 jurisdiction of
the Supreme Court & the High Courts". With respect to clause (3), the
following observa- tions of the Committee are relevant:
"The
Committee are of the view that to ensure and maintain the independence of the
judici- ary, 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 proceed- ing against a Judge should be made in Parlia-
ment by a notice of a motion. The Committee 95 also feel that no motion for
presenting an address to the President 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 members of that House and
in the case of a motion in Rajya Sabha, by not less than fifty members of that
House. Fur- ther, the Committee are of the opinion that the Speaker or the
Chairman 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 Judges of the
Supreme Court, Chief Justice of the High Courts and distinguished Jurists,
respective- ly".
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 Joint-Committee was
drafted and adopted. Mr. Setalvad's opinion is relevant as an important step in
this history of legislation and can be referred to as such.
27.
The wider proposition put forward by Mr. Sibal that the House was seised of the
matter so effectively as to entitle every member to 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 provisions 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 consequence will be to deprive the
Parliament of the control of the motion. When the Speaker exercises authority
either under the Lok Sabha Rules or under the.1968 Act, he acts on behalf of
the 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 another matter that he may con- sult
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 consulta- tion, which the Act permits, is private in nature, not
amounting to 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 96 relating 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.
28:
Mr. Shanti Bhushan strenuously contended 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 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 reference 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 Presi- dent's direction. The petitioners are trying to put an
interpretation on the present Act that may lead to the same conclusion, that
is, that the Parliament does not come in the picture until the receipt of the
report from the Commit- tee. This is wholly inconsistent with the original 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 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 banned; and before this stage is reached there is no
occasion for relying upon Article 121 to prevent a discussion. The situation,
there- fore, does not require the aid of any legal fiction. The consequence of
accepting the argument of Mr. Shanti Bhushan will be to render the aforesaid
provisions of the statute wholly superfluous. Also, had it been a case of a
legal fiction as suggested, it would attract the observations of Lord Asquith
in East End Dwellings Co. Ltd And Finsbury Borough Council: 1952 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 of affairs had
in fact existed, must inevita- bly have flowed from or accompanied it; and 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 affairs. The alternative
sug- gestion of Mr. Shanti Bhushan that the motion, on its admis- sion, having
served its purpose, is completely exhausted, 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 there. fore does not
remain in existence any further, no problem about the lifting of the bar under
Article 121 arises for being solved with the help of a legal fiction.
An
attempt was made by mr. Shanti Bhushan to derive some support 97 from that part
of clause (4) of Article 124 which requires the voting in the two Houses to
take place in the same session. The provision appears to me to be absolutely
irrel- evant. The clause does not require that the entire proceed- ing with
respect to the removal of a Judge commencing with the notice 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 com- pletely
demolishes the petitioners' case, was consciously chosen to make the House
seised of the matter, and conse- quently it became necessary to include the
provisions di- recting 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 harmonising
them.
29.
Let us consider another argument of the petitioners that by reason of the
expression "on the ground of proved misbehaviour or incapacity" 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
unassociated 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 representative
capacity. 1 do not find this con- struction 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
independ- ently of the Parliament, the Speaker and the Chairman. If that could
be permissible it would lead to the Parliament being reduced to a helpless
spectator, dependent on the statutory authority, to act on or to ignore a
complaint.
This
would be in complete violation of the intention of the Constitution to vest the
power to remove a Judge exclusively in the Parliament. It must, therefore, be
held that the Parliament is in control of the matter from the very begin- ning
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 98 House is brought in control of the proceeding through its
representative the Speaker or the Chairman. It has to be noted that "the
ground of proved misbehaviour or incapacity" is necessary only for putting
the matter to vote in the House under clause (4), and is not a condition
precedent for initiating a proceeding and taking further steps in this regard.
30. 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 under 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 manner in
which it may become possible to do so. It is true that the Parliament can exer-
cise its power without formally framing a law. The House in question could in
the absence of a law, decide on the proce- dure 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 investiga- tions to a smaller body for
obvious practical reasons, and such an exercise cannot be characterised as
indulging in abnegation of authority. It could have asked a Parliamentary
Committee to enquire into the allegations or employed any other machinery for
the purpose. The ratio in State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Anr., [1978] 2 SCC 102, is
attracted here. In that case the Administrative Committee of the High Court,
constituted under the Rules of the Court resolved that the District Judge
should be retired compulsorily from the service, 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
Government this Court reversed the decision holding 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 pre- scribe 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 99 makes it imperative that the rules are flamed 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 entrust- ment of the investigation does not amount
to abdication of power. It is a case where the Parliament has taken a deci- sion
to respect the verdict of the Committee in favour of the Judge, consistently
with clause (4) and no fault can be .found.
31. It
has 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 holds that the Motion has lapsed, and the Committee does not
have any duty to perform, the pro- ceeding 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 investiga- tion. If the petitioners are right, then what happens if a
member of the Committee becomes unavailable by any reason whatsoever or another
member renders himself unfit to be on the Committee, say by reason of his
apparent and gross bias, against or in favour of the Judge concerned, coming to
light after the formation of the Committee ? 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 Committee is an independ- ent statutory body not subject to the
control of the House directly or through the Speaker, as the petitioners
suggest, the Act may be rendered unworkable. Besides, this would impute to the
Parliament to have done exactly what the Constituent Assembly refused to do by
accepting Sir Alla- di's impassioned appeal, referred to above in para- graph
19, not to lower the dignity of the Chief Justice of India by providing 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 inquiry
in the alleged misbehaviour of a member of a Public Service Commission, a
constitutional functionary but lower in rank than the Supreme Court, to the
Supreme Court without associ- ating 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, it will be the parliament which
will be in con- trol of the proceeding and not the Committee.
100
32. Mr
Jethmalani was fervent in his exhortation to construe the Constitution and the
Act in a manner which will protect the independence of the judiciary from the
politi- cians, and this, according to him, is possible only if this Court comes
to an affirmative conclusion on the question of justiciability. There cannot be
two opinions on the necessi- ty 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 available materials unmistakably show that great care
was taken by the framers the Constitution to this aspect and the matter was
examined 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 the High
Court and Supreme Court Judges, it was considered adequate for the maintenance
of their independence to adopt and enact the Constitution as we find it. I do
got 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 Par- liament or their
representatives, the Speaker and the Chair- man, shall not be acting in the rue
spirit of the Constitu- tional provisions. Similarly, the task of enacting a
law under clause (5) was taken up seriously by consid- ering every relevant aspect,
and the process took several years before the Act was passed. do not propose to
deal with this point any further beyond saying that the mandate of the
Constitution is binding on all of us, and I would close by quoting the
following words from Hamilton:
"If
mankind were to resolve to agree in no institution of government, until every
part of it had been adjusted to the most exact stand- ard of perfection,
society would soon become a 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 projector to renounce his infal- lible criterion
for the fallible criterion of his more conceited neighbour? To answer the
purpose of the adversaries of the Constitu- tion, 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".
33. It
has not been suggested on behalf of the petition- ers or by anybody else that
it is open to the Court to examine the legality of a final decision taken by
the Par- liament under clause (4). Even after a verdict against the Judge is
returned by the Committee, the Parlia- ment 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 intervene ? The answer is in the
negative for more than one reason. If the control of the House continues on the
proceeding throughout, which can he 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 he 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 situation, embarassing both for
the highest judicial and legislative authorities of the country. The
Constitution cannot he attributed with such an intention. I, therefore, hold
that the courts including the Supreme Court do not have any jurisdiction to
pass any order in relation to a proceeding for removal of a Judge of the
superior courts.
34.
Reference was made by the learned counsel for the parties to the Constitutions
of several other countries, but I do not consider it necessary to discuss them
excepting the Australian Constitution as they do not appear to be helpful at
all. As has been mentioned earlier the language of Arti- cle 124 (4) is similar
to section 72(ii) of the Common- wealth of Australia Constitution Act (1900),
except-with this difference that the Australian Constitution Act.does not
specifically provide for any law to he made for regulat- ing the procedure and
investigation. However, the constitu- tional 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 occa- sions including at page 415 in Smt. Indira
Gandhi v. Raj Narain, [1976] 2 SCR 347, relented to above in paragraph 9.
Reference
has been made by P.H. Lane in his 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 difference amongst
the members of the Select Committee of the Senate appointed 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 adhoc legislation was passed
under the name of Parliamentary Commission of Inquiry 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 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 of 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 powers there have been
exclusively vested in the courts by section 71 of the Constitution Act of 1900.
Lane has at page 372 of his book opined that sec- tion 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 provi- sions of the Constitution Act, and analysed the roles
of Parliament and Court with his comments. I do not 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 relevant, 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 refused to do so,
related to a 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.
35. In
view of the above findings this Court cannot pass 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 F writ petitions are
dismissed. The prayer for transfer of Writ Petition No. 1061 of 1991 in
Transfer 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 dis- posed of.
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