Report No. 195
Finally, the Committee laid down the following propositions as applicable for inquiry under Article 124(4):
"(1) The word "misbehaviour" as applicable to judges of the Supreme Court and the High Courts, in the context of Articles 124(4) and (5) and other relevant provisions of the Constitution, means conduct or a course of conduct on the part of a judge which brings dishonour or disrepute to the judiciary as to shake the faith and confidence which the public reposes in the judiciary. It is not confined to criminal acts or to acts prohibited by law. It is not confined to acts 110which are contrary to law. It is not confined to acts connected with the judicial office. It extends to all activities of a judge, public or private.
(2) The act or omission must be wilful. The wilful element may be supplied by culpable recklessness, negligence, disregard for rules or an established code of conduct. Even though a single act may not be wilful, series of acts may lead to the inference of wilfulness.
(3) Monetary recompense would not render an act or omission anytheless 'misbehaviour' if the person intentionally committed serious and grave wrongs of a clearly unredeeming nature and offered recompense when discovered.
(4) 'Misbehaviour' is not confined to conduct since the judge assumes charge of the present judicial office. It may extend to acts or omissions while holding prior judicial office, if such act or omissions makes him unworthy of holding the present judicial office.
(5) The standard of proof is proof beyond reasonable doubt and not a balance of probabilities.
(6) The 'misbehaviour' must be held proved accordingly by the Inquiry Committee constituted under the Judges (Inquiry) Act.
(7) The judge against whom an inquiry is being held is under a constitutional obligation to cooperate with the inquiring authority and not to raise petty-fogging objections to obstruct the inquiry in which case an adverse inference may be legitimately drawn against him."
Thus, the above discussion from the Report of the Sawant Committee sufficient light on the importance of judicial independence, its vastness and hence the need for accountability and as regards to what amounts to 'misbehaviour' and as to the 'standard of proof' required in proceedings which are quasi-criminal in nature and the proof must be the 'proof beyond reasonable doubt'.
(A) The first judgment: Sub-Committee on Judicial Accountability v. Union of India, 1991 (4) SCC 699 effect of dissolution of Lok Sabha:
The first judgment was rendered on October 29, 1991 by a Constitution Bench consisting of B.C. Ray, L.M. Sharma, M.N. Venkatachaliah, J.S. Verma and S.C. Agrawal, JJ. We have already mentioned that the main issue in this case filed by the Sub-Committee on Judicial Accountability was whether on the dissolution of the 9 th Lok Sabha, the motion introduced in that Lok Sabha by 108 Members of Parliament and the admission of the Motion, lapsed.
B.C.Ray J, speaking for the Supreme Court laid down the following broad principles. He stated that the parliamentary proceeding starts only after the report is submitted by the Committee appointed by the Speaker pursuant to the Motion, that the earlier Acts of admitting the Motion, the reference to the Committee and the proceedings before the Committee were not part of the parliamentary proceeding and hence they would not lapse.
The Supreme Court also pointed out that use of the word 'Motion' at the stage of admission of Motion used in Section 3 of the 1968 Act was not to be confused with a regular Motion within parliamentary procedure and, at the initial stage before the report was submitted, a Motion only meant a "complaint or an allegation". The Court stated that the 1968 Act and the Rules framed thereunder supersede any rules made under Article 118 of the Constitution and that the latter Article deals with the rules of procedure framed by each House of Parliament.
The above are the broad conclusions arrived by the Supreme Court. We shall now refer to the relevant discussion in this case.
In the above Judgment, the Supreme Court referred (see para 16) to the fact that the rule of law was a basic feature of the Constitution, and that the independence of judiciary was an essential attribute to the rule of law. Article 124(2) and 217(1), required, in the matter of appointment of judges of the High Court and Supreme Court consultation with the Chief Justice of India and Chief Justice of the High Court. These provisions also ensured fixity of tenure of office of the judge.
The Constitution protects the salaries of the 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 discharge of his duties except on a motion for presenting the address to the President praying for the removal of a judge. Article 124(4) and 124(5) afford protection against premature determination of the tenure. Article 113124(4) says that a judge of the Supreme Court shall not be removed from his office except on the ground of "proved misbehaviour or incapacity".
All these provisions should be harmoniously construed. While so construing, the law and procedure for removal of judges in other countries could provide the background and the position in comparative view, but the solution must be found within our constitutional scheme. No doubt, a comparative idea was good for providing a proper perspective for the understanding and interpretation of the constitutional scheme. The Supreme Court then referred to the procedure in UK and in Canada and Australia.
It referred to the case of inquiry against Justice Leo Landreville of the Supreme Court of Ontario, Justice Murphy in Australia and Justice Vasta of the Supreme Court of Queensland. The Court referred to the views of Justice L.J. King, Chief Justice of the Supreme Court of South Australia (in "Minimum Standards of Judicial Independence", 1984 (58) ALJ 340) to the effect that removal by address by Parliament was extremely rare because in most cases the concerned judge would resign.
Further, as the standards of judicial conduct that have been set out generally are very high, the removal by the Legislature was a rarity. The Supreme court also referred to an article by Justice M.H. Mclelland of the Supreme Court of New South Wales ('Disciplining Australian Judges', 1990 (64) ALJ 388) wherein it was suggested that there should be legislation laying down the procedure before a tribunal, that a tribunal constituted should be under the supervisory jurisdiction of the High Court and that there should be an appeal from the tribunal to the High Court.
The Supreme Court also pointed out that in Australia, a Constitution Commission was set up for suggesting reforms and that that Commission suggested the establishing of a National Judicial Tribunal to determine what type of acts found by the Tribunal, would be amounting to 'misbehaviour or incapacity' warranting removal (see "From the Other Side of the Bar Table: An Advocate's View of the Judiciary", 1987 10 University of New South Wales Law Journal 179).
B.C.Ray J, then referred to the removal procedure in the United States for impeachment on the ground of "conviction for treason, bribery or other high crimes or misdemeanors" in the federal system. The majority of the States also have similar provisions for removal of judges of States. In some States, provision was made for removal by an address of the Governor to both Houses of Legislatures or by a Joint Resolution of the Legislatures. In some States the removal power was vested in the State Supreme Court while in some States special courts were provided to hear removal charges.
In the State of New York, the Court was known as the "Court on the Judiciary" (see Henry J Abraham, the Judicial Process, 3rd Ed, p. 45). A federal law was passed in 1932 (incorporated in Title 28 of the US Code) and that law was replaced by another Act in 1939 which made provision for Judicial Councils. That law was replaced by the Judicial Councils Reform and Judicial Conduct and Disability Act, 1980.
In this Act, Judicial Councils were empowered to receive complaints against judicial conduct which was "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". That Act prescribed an elaborate judicialised procedure for processing such complaints within the administration system of the Judicial Councils concerned and the Judicial Conference of US.
So far as States were concerned, 50 States had laws for disciplining their judges and in each, a variously constituted commission was organized in either a single tier or in many tiers depending upon the perceived desirability of separating fact finding from judgment and recommendation tasks. The Commission's recommendations would be transmitted to the State Supreme Court for its authoritative imprimatur, except in States where they were to be received by the legislatures that retained judicial removal power (see Robert J. Janosik, Encyclopedia of the American Judicial System, Vol. II., p. 575-78).
B.C. Ray J then referred (paras 27 to 32) to the directive regarding "judicial removal and discipline" contained in the Minimum Standards of Judicial Independence, passed in the Conference of the International Bar Association at its 19th Biennial Conference at New Delhi in October 1982 to the following effect:
"27. The proceedings for discipline and removal of judges should ensure fairness to the judge, and adequate opportunity for hearing.
28. The proceedings for discipline should be held in camera. The judge may however request that the hearing 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 reason 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 removal of 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." (emphasis supplied)
B.C. Ray J then referred to the First World Conference on the Independence of Judges held at Montreal on 10th June, 1983 and to the following clauses in the Universal Declaration on the Independence of Justice which concerned "discipline and removal of 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 the 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 beheld before a court or a board predominantly 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 recommendation of a court or board as referred to in 2.33(a).
2.34 All disciplinary action shall be based upon established standards of judicial conduct.
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 discipline 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 disciplinary 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."
(emphasis supplied)
B.C. Ray J then referred to para 17 to 20 of the Basic Principles on the Independence of the Judiciary, insofar as they related to discipline, suspension and removal, passed by the 37th UN Congress on the Prevention of Crime and Treatment of Offenders held at Milan during August 26 to September 6, 1985:
"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 hearing. 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 discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
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 above resolution was endorsed by the UN General Assembly on November 9, 1985 and 13th December, 1985.
The Supreme Court pointed out that prior to the commencement of the Constitution of India, Section 200(2) of the Government of India Act, 1935 required a decision of the disciplinary Committee of the Privy Council on the question of removal of a judge. That would mean that the decision was to be by a judicial body.
The Supreme Court then went into a further important aspect as to whether in India the process of removal was purely a political process or whether it was a judicious blend of the political and judicial process of the removal of judges. B.C. Ray J pointed out, after referring to views of Wrisley Brown (the Impeachment of the Federal Judiciary, (1912-1913), (Harvard Law Review 684) and of Prof. Mauro Cappelletti in his book "The Judicial Process in Comparative Perspective", (1989) that the procedure in US was political but that in India, it was a blend of political and judicial processes.
It observed "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 incapacity on a more careful examination this is not the correct conclusion."
In this context, B.C. Ray J referred to the speeches of Sir Alladi Krishnaswamy Ayyar in the Constituent Assembly of 29th July, 1947, of Mr. K. Santhanam and of the proposal of Mr. M. Ananthasayanam Ayyangar only for a judicial tribunal (which was rejected because Sir Alladi proposed a combination of judicial and political process). The proceeding was not, therefore, exclusively judicial. In other words, the inquiry part of it could be judicial while the removal part would be Parliamentary.
The Supreme Court referred to the procedure for issue of notice of motion and as to whom the Speaker or the Chairman, as the case may be, may consult before admitting the Motion. Section 3 permits consultation with 'persons'. If the motion is admitted, the Speaker/Chairman shall have to keep the motion pending and then constitute the Committee.
Under Section 6 (2), if the Report of the Committee contains a finding that the judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion referred to in subsection (1) of section 3, shall, together with the Report of the Committee, be taken up for consideration by the House or the Houses of 121Parliament in which it is pending. The Supreme Court pointed out that the effect of Section 3 and Section 6(2) is as follows:
"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 the usual effect of dissolution of the House can or should be imported".
The Supreme Court further pointed out that the procedure indicated in the 1968 Act overrides any rules made by the House under Article 118. While the latter article may enable the motion to lapse on dissolution, no such thing was contemplated by the Act of 1968 which law was passed under Article 124 (5). In India, the notion of parliamentary sovereignty was no longer applicable. This it said was clear from the observations of the Supreme Court in Special Reference No.1 of 1964 case (Keshav Singh's case, 1965 (1) SCR 413) where Gajendragadkar CJ observed:
"though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution". and
"In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign".
(emphasis supplied)
The Supreme Court then considered the meaning of the word "proved" in the clause "proved misbehaviour and incapacity" which occur in Article 124 (4). The Court explained that no motion for presenting the address referred to the Article 121 or 124(4) 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". No motion for removal of a judge would be permissible under Article 124(4) and the Houses of Parliament would not be brought into the picture "till some authority outside the two Houses of Parliament has recorded a finding of misbehaviour or incapacity".
This it said would mean that both judicial and parliamentary procedures are harmonized and blended. Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any Supreme Court judge is lifted "upon a motion for presenting an address to the President praying for the removal of a judge as hereinafter provided". The word motion and the clause as hereinafter provided are obvious reference to the motion referred to in clause (4) of Article 124 which in turn, imports the concept of Motion in regard to "proved" misbehaviour or incapacity, i.e. after it was 'proved' outside the Legislature.
The provision in Article 124(5) for the making of a law was not an enabling provision but incorporated a condition precedent on the power of removal by Parliament. The Supreme Court then held
"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 investigation and finding of proof of the misbehaviour or incapacity being statutory, is governed entirely by provisions of the law enacted under clause (5). This also harmonises Article 121.
The position would be that an allegation of misbehaviour or incapacity by a judge has to be made, investigated and found proved in accordance with the law enacted by Parliament under Article 124(5) without the Parliament being involved up to 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 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 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 124proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4)". (emphasis supplied)
The Supreme Court further pointed out that 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 the 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 restrictions 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 found proved nor has it any control over the machinery provided in the law is 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 initial allegation has been described as a motion because it is a complaint made to the Speaker or Chairman and is made by specified number of Members of Parliament.
On receiving a complaint under Section 3, if the Speaker/Chairman forms an opinion that there is a prima facie case for investigation, he will constitute the judicial Committee as prescribed; if parliamentary process and the judicial process are separate, the Parliament process starts only after the judicial body records a finding of proved misbehaviour or incapacity and reports it to the Speaker/Chairman. This is clear when clause (4) of Article 124 is construed with Article 317 in relation to the removal of members of the Public Service Commission where the word 'proved' is not used.
The use of the word motion in Section 3 to indicate the process of investigation and proof does not make it a motion in the House notwithstanding with the use of that expression in Section 3 and 6. If the allegation is not proved, the Speaker need not commence the process under clause (4) of Article 124. The Speaker is, therefore, a statutory authority under the Act, chosen because the further process is parliamentary and the authority to make the initial complaint being given to the Members of Parliament, the complaint is described as motion. The Court then observed as follows:
"Indeed, the Act reflects the constitutional 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 process of removal has no further option. The law is, indeed, a civilized piece of legislation reconciling the concept of accountability of judges and the values of judicial independence.
The Speaker, while was admitting the motion on constituting a Committee to investigate on alleged grounds of misbehaviour or incapacity does not act as part of the House. The House does not come into the picture at that stage."
(emphasis supplied)
The Supreme Court then referred to the principles of natural justice at the stage of admitting motion as follows: It stated that at the stage under Section 3 when the Speakers admits a motion, a judge is not, as a matter of right entitled to such notice. But this does not prevent the Speaker if the facts and circumstances place before him indicate that hearing is appropriate and he may give a hearing.
The Court then referred to an argument that by resort to a judicial remedy (under Article 226 or Article 32) such as the one filed in this case by the Sub-Committee on Judicial Accountability, the judge who is being investigated can be restrained from exercising judicial functions. The Supreme Court pointed out that the 'judiciary by itself' could not do so. It may be that as a matter of propriety the judge may voluntarily not function. While, under Article 317(2), there was specific provision in the Constitution for 'suspension' which precluded a Member of the Public Service Commission from functioning while inquiry was going on, there was no such power of suspension in Article 124(4). The Court observed:
"the absence of a legal provision as under Article 317(2) to interdict the judge till the process of removal under Article 124(4) is completed does not necessarily indicate that the judge shall continue to function during that period. That area is to be covered by the sense of propriety of the learned judge himself and the judicial tradition symbolized 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.
The Constitution while providing for the suspension of a Member of the Public Service Commission in Article 317(2) in a similar situation has deliberately abstained from making such a provision in case of higher constitutional functionaries, namely, the Superior Judges and the President and the Vice-President of India, facing impeachment. It is reasonable to assume that the framers of the 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." (emphasis supplied)
(The Court did not have to deal with a law, if any made under Art 124(5) which may permit non-listing of cases).
The above discussion shows that several important principles of constitutional law were laid down by the Supreme Court in the first case in the context of Article 124, 121, 217 of the Constitution and the Judges (Inquiry) Act, 1968. These principles are extremely relevant in the matter of discussion of the provisions of the Judges (Inquiry) Bill, 2005.
(B) The Second Judgment: Mrs. Sarojini Ramaswami v. Union of India (1992)4 SCC 506.
We have already set out the circumstances under which and the relief for which this petition was filed by Mrs. Sarojini Ramaswami. She mainly sought a direction that a copy of the Report of the Sawant Committee may be furnished to Justice V. Ramaswami, even before it is discussed in Parliament.
The Supreme Court, after referring to the constitutional scheme and the provisions of the 1968 Act observed that the copy of the report could not be furnished till the report was placed for consideration by Parliament and an order of removal was passed by the President. In the course of the discussion, the Supreme Court laid down various legal principles. We shall refer to them presently.
At the stage of admitting the motion under section 3(1) of the Act, the section contemplated that the Speaker/Chairman may either admit or refuse to admit the motion "after consulting such persons, if any, as may be available to him". Interpreting these words, the Supreme Court observed that in this process of consultation it was reasonable to assume that one such person to be consulted would be the Chief Justice of India, who apart from being the head of the Indian judiciary, would also be the authority involved in the choice and availability of a sitting Judge of the Supreme Court and a sitting Chief Justice of a High Court as members of the Committee constituted under section 3(2) of the Act, in case the motion is admitted by the Speaker/Chairman.
The Supreme Court referred to Judges (Inquiry) Rules, 1969 and in particular to Rule 9 and stated that where a finding was given by the Committee that the Judge was "not guilty', in case one member gave dissenting note that the Judge was "guilty", then that finding need not be placed before the House whereas in a situation where a finding of "guilt" was given by two members and one member gave a finding of "not guilty", then both the findings must be placed before the House. This was the effect of the Rules.
Where a finding of "not guilty" is given by the Committee, the entire process of removal comes to an end and it will not be permissible to start the Parliamentary procedure for removal against the Judge. It is only where a finding of "guilt" is given by the Committee and the report is placed before the House that the Parliamentary process starts. This indicates that the finding of "guilt", if any, made by the Committee is "inchoate" until the motion, if it is based on the findings of guilt, is allowed as contemplated by Art 124.
Even thereafter till the President issues an order of removal, no proceeding for judicial review can be initiated in a court of law before the order of removal, if any, passed. The reason is that even though there is a finding of "guilt" in the Report, Parliament may still not pass the motion for removal. The proceedings are statutory and judicial in nature before the Committee till the report is placed in Parliament and only then the parliamentary or political procedure starts.
The procedure, as pointed out in the earlier judgment in Sub Committee on Judicial Accountability v. Union of India, (1991)4 SCC 699 is "a judicious blend of the political and judicial processes for the removal of Judges". The different schemes for removal of Judges in other countries do not provide the answer to the problem in India though they may be of precedential value. They may be of some guidance.
Parliament does not substitute its finding for that of the Inquiry Committee. In case it decides not to adopt the motion by the requisite majority the motion for removal fails and the proceedings terminate. But in doing so, Parliament does not take the decision not to adopt the motion because it declines to accept and act on the finding of "guilt" recorded by the Committee.
This Parliament does after debating the issues on the basis of the material before it (i.e. Report and matter referred to therein). It is at that stage, i.e. the stage of consideration of the Report and materials, that the Judge concerned will be given a copy of the report and an opportunity to submit his case as to why the finding should not be accepted.
In this context, the Supreme Court referred to the procedure followed by the Parliament in Australia in the case of Mr. Justice Vasta of the Supreme Court of Queensland. In that case, the Australian Prime Minister made it clear that the Judge had to be given an opportunity during the proceedings in Parliament and that the Judge could appear personally or by his legal representative before Parliament, if he so wished. The relevant passage from the statement of the Prime Minister of Australia reads as follows:
"I believe that Mr. Justice Vasta has the righ.- and we have the duty to allow hi.- to address us, either personally or by his legal representatives, should he so wish".
The Supreme Court further pointed out that it was only after the motion was passed that the misbehaviour is "deemed to be proved" as stated in section 6(3) of the Act and till such time the findings of the Committee are inchoate.
While reiterating that the finding of "guilt" made by the Committee is not binding on Parliament, the Supreme Court also stated that while voting on the motion Parliament is not required to give any reasons if it chooses not to adopt the motion. Following are the relevant observations: (at page 553)
"Even though judicial review of the finding of "guilty" made by the Inquiry Committee may be permissible on limited grounds pertaining only to legality, yet the power of Parliament would not be so limited while considering the motion for removal in as much as the Parliament is concerned to not adopt the motion in spite of the finding of "guilty" made by the Committee on a consideration of the entire material before it which enables it to go even into probative value of the material on which the finding is based and to decide the desirability of adopting the motion in a given case the Parliament decides by voting on the motion and is not required to give any reason for its decision if it chooses not to adopt the motion."
(emphasis supplied)
From the above passage, it is clear that according to the Supreme Court, while the scope of judicial review is limited to legality of reasons in the Report, the scope of jurisdiction of Parliament, while considering the report is wider and is not confined to the legality of the reasons but can extend even to examine the probative value of the evidence, with the additional advantage that Parliament need not give any reason for not accepting the motion.
This is in contrast to any challenge to the report in a court of law where the Court has to give reasons. This was one more reason why it should be in the interest of the Judge not to challenge the Report in a Court soon after it was made and it would be more advantageous to him to account the outcome of the parliamentary process and, in case it goes against him, he can challenge the removal after the President passes the order of removal.
This is so even though the Committee may have the trappings of a Court but still its decision was an inchoate one. If the Committee decided that a Judge is "not guilty" that decision would be final and where it is so decided, it would be conclusive and then the entire process of inquiry terminates and the parliamentary process does not start and has to be closed.
The Report of a Committee being inchoate, the Inquiry Committee cannot be treated as a "Tribunal" for the purpose of Art 136 of the Constitution. The Report of the Committee holding the Judge guilty cannot be challenged at that stage before it is submitted to the Speaker/Chairman and the Act and the rules deliberately do not provide for a copy of the Report to be given to the Judge as soon as the report was filed by the Committee.
The Supreme Court explained that the submission of the Judge that judicial review should be given at the stage of the report before it is submitted to the Speaker/Chairman and not after the removal order was passed because once it was accepted by Parliament, it becomes a political question, cannot be accepted. The submission is not correct in as much as under Art 124 read with the 1968 Act the procedure is partly judicial under the statute and partly political in Parliament, after the report.
In the United States, judicial review after impeachment was barred because the procedure in the Senate is treated as political, Senate being the sole authority and the inquiry being made under the rules made by the Senate. There the inquiry by the committee is treated as part of the a political process. Such a situation was not contemplated by Art 124 read with the provisions of the 1968 Act.
The Supreme Court observed that currently the trend was that even political questions can be debated in courts in some circumstances. But where it is partly judicial by force of statute and therefore political, there was no difficulty in accepting judicial review after the removal. It stated (p. 569):
"The above discussion indicates the modern trend to accept judicial review in certain situations with the circumscribed limits even where the entire process is political since the "political question doctrine" as discussed in Powell (395 US 486 (1969) permits this course. In such cases where the entire process is political, judicial review to the extent permissible on conclusion of the political process is not in doubt.
There appears to be no reason in principle why judicial review at the end of the entire process of removal of a Judge in India, where it is a composite process of which the political process is only a part, cannot be exercised after conclusion of the entire process including the political process."
The Supreme Court then referred to Article 122 of the Constitution which prohibits the courts from inquiring into proceedings of Parliament but pointed out that in view of the provisions of Article 124(4) and (5) read with the provisions of the Judges (Inquiry) Act, 1968, and the Judges (Inquiry) Rules, 1969, the prohibition is lifted and the Judge has to be given an opportunity before the Houses of Parliament. A violation of the above principle (of natural justice) would constitute illegality and would not be immune from judicial scrutiny.
This is in accord with the principles laid down in Keshav Singh's case, 1965 (1) SCR 413. In Sub-Committee on Judicial Accountability v. Union of India, 1991 (4) SCC 699 the observations are to the following effect: "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)".
But the proceedings can be questioned only if and after the President passes an order for removal. Verma J (as he then was) summarized the law as follows (p.572-3):
"95. In sum, the position is this: Every Judge of the Supreme Court and the High Courts on his appointment is irremovable from office during his tenure except in the manner provided in clauses (4) and (5) of Article 124 of the Constitution of India. The law made by the Parliament under Article 124(5), namely, the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969 framed thereunder, is to be read along with Article 124(4) to find out the constitutional scheme adopted in India for the removal of a Judge of the Supreme Court or a High Court.
The law so enacted under Article 124(5) provides that any accusation made against a sitting judge to enable initiation of the process of his removal from office has to be only by not less than the minimum number of Members of Parliament specified in the Act, all other methods being excluded. On initiation of the process in the prescribed manner, the Speaker/Chairman is to decide whether the accusation 136requires investigation. If he chooses not to act on the accusation made in the form of motion by the specified minimum number of Members of Parliament, the matter ends there.
On the other hand, if the Speaker/Chairman, on a consideration of the materials available and after consulting such persons as he thinks fit, forms the opinion that a prima facie case for investigation into the accusation against the Judge is made out, he constitutes a Committee of judicial functionaries in accordance with section 3(2) of the Act. If the Inquiry Committee at the conclusion of the investigation made by it records a finding that the Judge is 'not guilty', the process ends with no one, not even the Parliament, being empowered to consider much less question the finding of 'not guilty' recorded by the Inquiry Committee.
If the finding made by the Inquiry Committee is that the Judge is 'guilty', then the Parliament considers the motion for removal of the Judge along with the Committee's report and other available materials including the cause, if any, shown by the Judge concerned against his removal for which he has to be given an opportunity after submission of the report to the Speaker/Chairman under section 4(2) of the Act. To be effective, this opportunity must include supply of a copy of the report to the Judge concerned by the Speaker/Chairman while causing it to be laid before the Parliament under section 4(3).
If the Parliament does not adopt the motion for removal of the Judge, the process ends there with no challenge available to any one. If the motion for removal of the Judge is adopted by the requisite majority by the Parliament 137culminating in the order of removal by the President of India under Article 124(4) of the Constitution, then only the Judge concerned would have the remedy of judicial review available on the permissible grounds against the order of removal.
The statutory part of the process, by which a finding of guilty is made by the Inquiry Committee, is subject to judicial review as held in Sub-Committee on Judicial Accountability but in the manner indicated herein, that is, only in the event of an order of removal being made and then at the instance of the aggrieved Judge alone. The Inquiry Committee is statutory in character but is not a Tribunal for the purpose of Article 136 of the Constitution."
(emphasis supplied)
After stating so, the learned judge observed that the above view is in complete accord with the opinion of the majority in Sub-Committee on Judicial Accountability v. Union of India that the statutory part of the process of removal of a judge is subject to judicial review.
The third Judgment: Krishnaswamy v. UOI. 1992 (4) SCC 605
We have already pointed out that one Krishnaswamy who was a Member of Parliament filed Writ Petition 149 of 1992 in the Supreme Court praying for quashing the proceedings of the Justice Sawant Committee.
Simultaneously, one Raj Kanwar also filed WP 140 of 1992 stating that the Justice Sawant Committee violated Article 145(3) of the Constitution.
Both the writ petitions challenged the earlier judgments on SubCommittee on Judicial Accountability and sought a fresh consideration of the points decided in that case.
The Supreme Court rejected these contentions on preliminary grounds that the petitioners have no locus standi. This was the view of the majority. There was also a minority judgment but it is not necessary to deal with it in view of the opinion of the majority.
The Fourth judgment: Lily Thomas v. Speaker Lok Sabha, (1993) 4 SCC 234
The petitioner Ms. Lily Thomas moved the Supreme Court under Article 32 seeking a declaration that the Motion of Impeachment against Justice V. Ramaswami of the Court moved in the Lok Sabha for his removal from the office of Judge, should be deemed to have been carried by construing the expression, 'supported by a majority' in Article124(4) in such a manner that any member who abstained from voting should be deemed to have supported the Motion. It was also claimed that the Supreme Court may recommended for repeal of Article 124(4) as it had been rendered unworkable and non-functional and that it should be substituted by an appropriate provision.
The petition was dismissed and, in that context, the Supreme Court held that the proceedings for address are partly judicial and partly political in character. The statutory process appears to start when the Speaker acts under the 1968 Act and comes to an end when the Judges Committee appointed by the Speaker submits its report to the Speaker. The debate on the Motion thereafter in Parliament and discussion and the voting is political in nature. The right to vote implies a right also to remain neutral. Hence those Members who abstained cannot be considered to have voted in favour of the motion for removal.
These are the Constitutional principles laid down by the Supreme Court in the four cases relating to Justice v. Ramaswami and have to be borne in mind while dealing with the provisions of the Bill of 2005.
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