Report No. 195
The Sawant Committee Report (20th July, 1992):
We have already stated that after admitting a Motion, the Hon'ble Speaker of the Lok Sabha appointed Justice Sawant Committee under Section 3 of the Act.
The above Committee stated that under section 4 of the High Court's Act, 1861 and under section 102 of the Government of India Act, 1915, Judges of the High Courts in India held office during the "pleasure" of Her or His Majesty. However, under proviso (b) to section 220(2) of the Government of India Act, 1935 it was provided that a Judge cannot be removed from his office unless the Judicial Committee of the Privy Council on a reference being made by his or her Majesty, recommended that the Judge be removed, on the ground of misbehaviour or of infirmity of mind or body.
Under the provisions of the Constitution of India while providing for a tenure of 60 years (later amended as 62 years) for High Court Judges and 65 years for Supreme Court Judges, it was stated in clause (b) of the 2nd Proviso to Art 124(2) that a Supreme Court Judge may be removed from his office in 106the manner provided in clause (4) of Art 124.
Clause (4) of Art 124 stated that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an Address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than the 2/3rd of the Members of that House present and voting, has been presented to the President in the same session for such removal on the ground of "proved misbehaviour or incapacity".
Sub clause (5) of Art 124 provided that Parliament may, by law, regulate the procedure for the presentation of an Address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). Art 217 provided that in the case of the Judges of the High Courts, they may be removed from their office by the President in the manner provided in clause (4) of Article 124.
The Committee then referred to the provisions of the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969 and pointed out that the Judges of the Supreme Court and the High Court exercise vast powers under the Constitution and the laws and that the very vastness of the powers and the immunity granted to them required, that Judges should be fearless and independent, but they should adopt a high standard of rectitude so as to inspire confidence in the public who may seek and who may want to seek redress in the Court. While it was necessary to protect the Judges from false and malicious attacks, it was also necessary to protect the fair image of the institution of judiciary from those Judges who conducted themselves in a manner as to blur that image.
The Committee then referred to the word "misbehaviour" used in Article 124(4) and incidentally referred to the meaning of the word "misconduct" which, according to the Committee, appeared to be a stronger word but narrower than the word "misbehaviour". It then considered the meaning of the word "proved misbehaviour" used in the Constitution and stated that these words were perhaps borrowed from Section 72(ii) of the Australian Constitution. They referred to the opinions of Dr. Griffith, Solicitor General and of Mr. C.W. Pupincus QC, which were placed before the Senate in Australia in the case of alleged misbehaviour of Justice Murphy.
The Committee then referred to an article by Wrisley Brown (vol. 26 Harvard Law Review, p.684) as to what conduct would warrant impeachment of a Judge of the Federal Judiciary in USA. The Committee also referred to the cases in USA of Judge Steward F. La Motte Jr (FLA) 341 Southern Reporter (2d series 513), to the case of Judge Harry E. Claiborne (Report 9.- 688, 99th Congress 2nd Session) and to the cases of Judge Walter L Nicson Jr (10.- 36 or 101st Congress First Session), Judge Alcee L. Hastings (Report 10.- 810, 110th Congress 2nd Session) and of Judge Richard A Napolitano (317 F. Supp. 79 (1970)) and finally to the case of Stephen Chandler v. Judicial Council of 10th Circuit of the US, (398 US 74).
One of the important propositions laid down by the Committee is related to the "standard of proof" required in impeachment proceedings. The Committee referred to an article by Chief Justice Ben F. Overton of the Supreme Court of Florida, in the Chicago-Kent Law Review. In the US, the standard of proof was higher than preponderance of probabilities, namely, the standard required was "clear and convincing evidence" and that was the standard required in the case of 'misbehaviour' which was treated as an impeachable offence. The Committee felt that the standard in our country should be "proof beyond reasonable doubt". It said:
"We think that the concept of clear and convincing evidence, delectable though it may be, introduces needless sophistication and refinement. The impeachment proceeding is, in the strict sense, sui generis, neither civil nor criminal, in nature. The gravity of the charge against a judge of the Supreme Court or a High Court, the uniqueness of impeachment proceedings, and the forbidding consequence if the charges are held proved, make it practical, safe and necessary to insist upon a high degree of proof. That degree of proof is, in our view, proof beyond reasonable doubt without any further refinement".
They further added as follows:
"The Constitution, the Judges (Inquiry) Act and the Judges (Inquiry) Rules, give us an indication, however slight it may be, that an inquiry into the Act is thought to share the nature of quasi criminal proceedings. The word "investigation" usually associated with criminal cases is used both in Article 124(4) of the Constitution and the Judges (Inquiry) Act. The Committee is required by section 3(3) of the Act to frame definite 'charges' against the judge on the basis of which the investigation is proposed to be held.
Section 6 uses the words 'guilty' and 'not guilty'. Rule 7 of the Judges (Inquiry) Rules talks of 'plea of judge' and again uses the words 'guilty' and 'not guilty'. In our view, the use of the words 'investigation', 'charge', 'plea', 'guilty' and 'not guilty', all of which are ordinarily associated with criminal proceedings, do inform us of the quasi criminal nature of the proceedings".
"In fact, as far back as 1870, the Privy Council issued a Memorandum of the removal of Colonial judges where it described the proceeding for removal as quasi criminal".
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