Since I had assured the learned Attorney General, the Law Minister, the president of the Bar Association and other that I will look into it, I thought I must covey to you result of my looking into it.
 

THE JUDGES (INQUIRY) ACT, 1968 ( 51 OF 1968 )   to topÝ

An Act to regulate the procedure for the investigation and proof of the misbehavior or incapacity of a Judge of the Supreme Court or of a high Court and for the presentation of an address by parliament tot he president and for matters connected therewith.

Be it enacted by parliament in the Nineteenth Year of the Republic of India as follow:-

1) Short title and commencement –

(1) This Act may be called the Judges (inquiry) Act, 1968.

(2) It shall come into force on such date* as the Central Government may, by notification in the Official Gazette, appoint.

2) Definition – In this Act, unless the context other wise requires,-

(a) "Chairman" means the Chairman of the Council of States;

(b) "Committee" means a Committee constituted under Section 3;

(c) "Judge" means a Judge of the Supreme Court or of the High Court and includes and Chief Justice of India and the Chief Justice of a High Court;

(d) "Prescribed" means prescribed by rules made under this Act;

(e) "Speaker" means the Speaker of the House of the People.

3) Investigation into misbehavior or incapacity of Judge by committee –

(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;

(b) in the case of a notice given in the Council of states, by not less that 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;

(b) 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;

Provided that where notices of a motion referred to in subsection (1) are given on the same day in both Houses of Parliament, 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 constituted jointly by the Speaker and the Chairman;

Provided further that where notices of a motion as aforesaid are given in the Houses of Parliament on different dates, the notice which is given later shall stand rejected.

(3) The Committee shall frame definite charges against the Judge on the basis of which the investigation is proposed to be held.

(4) Such charges together with a statement of the gourds on which each such charge is based shall be communicated to the Judge and he shall be given a reasonable opportunity of presenting a written statement of defence within such time as may be specified in this behalf by the Committee.

(5) where it is alleged that the judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the Committee may arrange for the medical examination of the Judge by such Medical Board as may be, appointed for the purpose by the Speaker or, as the case may be, the Chairman or, where the Committee is constituted jointly by the speaker and the Chairman, by both or them for the purpose and Judge shall submit himself to such medical examination within the time specified in this behalf by the Committee.

(6) The Medical Board shall undertake such medical examination of the judge as may be considered necessary and submit a report tot he committee stating therein whether the in capacity is such as to render the Judge unfit to continue in office.

(7) If the Judge refuses to undergo medical examination considered necessary by the Medical Board, the Board shall submit a report tot he Committee stating therein the examination which the Judge has refuse to undergo, and the committee may, on receipt of such report, presume that the Judge suffers form such physical or mental incapacity as is alleged in the motion referred to in subsection(1).

(8) The Committee may, after considering the written statement of the Judge and the medical report, if any, amend the charges framed under sub-section (3) and in such a case, the Judge shall be given a reasonable opportunity of presenting a fresh written statement of defence.

(9) The Central Government may, if required by the speaker or the Chairman, or both, as the case may be, appoint an advocate to conduct the case against the Judge.

(4) Report of Committee;-

(1) Subject to any rules that may be made in this behalf, the Committee shall have power to regulate its own procedure in making the investigation and shall give a reasonable opportunity to the Judge of cross-examining witnesses, adducing evidence and of being heard in his defence.

(2) At the conclusion of the investigation, the Committee shall submit its report to the Speaker, or as the case may be, to the chairman, or where the Committee has been constituted jointly by the Speaker and the Chairman, to both of them, therein its findings on each of the charges separately with such observations of the whole case as it thinks fit.

(3) The Speaker or the Chairman, or, where the Committee has been constituted jointly by the Speaker an the Chairman, both of the, shall cause the report submitted under sub-section (2) to be laid, as soon as may be, respectively before the House of the People and the council of States.

5) Powers of Committee;-

For the purpose of making any investigation under this Act, the Committee shall have the power of a civil court, while trying a suit, under the Code of Civil procedure, 1908 (5 of 1908), in respect of the following matters, namely-

(a) summoning and enforcing there attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on oath;

(d) issuing commissions for the examination of witnesses or documents;

(d) such other matters as may be prescribed

6) Consideration of report and procedure for presentations of an address for removal of Judge:

(1) If the report of the Committee contains a finding that the Judge is not guilty of any misbehavior or does not suffer from any incapacity, than no further steps shall be taken in either House of parliament interrelation to the report and the motion pending in the House or the Houses of Parliament shall not be proceeded with.

(2) If the report of the committee contains a finding that the Judge is guilty of any misbehavior or suffers form any incapacity, then, the motion referred to in sub-section(1) of section 3 shall together, with the report of the Committee betaken up for consideration by the House or the Houses of Parliament in which it is pending.

(3) If the motion is adopted by each House of Parliament in accordance with the provisions of clause (4) of article 124, or, as the case may be, in accordance with that clause read with article 218 of the Constitution, then the misbehavior or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the president by each House of parliament in the same session in which the motion has bee adopted.

7) Power to make rules. –

(1) There shall be constituted a Joint Committee of both House of Parliament in accordance with the provisions hereinafter contained for the purpose of making rules to carry out the purposes of this Act.

(2) The Joint Committee shall consist of fifteen members of whom ten shall be nominated by the Speaker and five shall be nominated by the Chairman.

(3) The Joint Committee shall elect its Chairman and shall have power to regulate its own procedure.

(4) Without prejudice to the generality of the provisions of sub-section

(1) the Joint Committee may make rules to provide for the following among other matters, namely:-

(a) the manner of transmission of a motion adopted in one House to the other House of Parliament;

(b) the manner of presentation of an address to the President for the removal of a judge;

(c) the travelling and other allowances payable to the members of the committee and the witnesses who may be required to attend such Committee;

(d) the facilities which may be accorded to the Judge for defining himself;

(e) any other matter which has to be, or may be, provided for by rules or in respect of which provision is, in the opinion of the Joint Committee, necessary.

(5) Any rules made under this section shall not take effect until they are approved and confirmed both by the Speaker and the Chairman and are published in the Official Gazette, and such publication of the rules shall be conclusive proof that they have been duly made.

THE JUDGES (INQUIRY) RULES 1969.  to topÝ G.S.R. 2168 – In exercise of the powers conferred by sub-section (4) of section7 of the Judges (Inquiry) Act, 1968 (51 of 1968), the Joint Committee constituted under sub-section (1) of that section, hereby makes of following rules, the same having been approved and confirmed by the Chairman of the Council of States and the Speaker of the House of the People, as required by sub-section (5) of that section, namely:- (1) Short title and commencement – (1) These rules may be called the Judges (Inquiry) Rules, 1969. (2) They shall come into force on the date of their publication in the official Gazette.

(6) Where the majority of the members of the Inquiry Committee makes a finding to the effect that the Judge is not guilty of any misbehavior or that he does not suffer from any incapacity and the third member thereof makes a finding to the contrary, the Inquiry Committee shall not disclose the finding made by such third member to parliament or to any other authority, body or person.

SUB-COMMITTEE OF JUDICIAL ACCOUNTABILITY vs. UNION OF INDIA  to topÝ

B. C. RAY, L.M. SHARMA , M. N. VENKATACHALIAH, J.S. VERMA AND S.C.AGRAWAL. JJ.

Writ petition (Civil) No. 491 of 1991 with Transfer Petition (Civil) No. 278 of 1991 with Writ Petition (Civil) Nos. 541:542 and 560 of 1991, D/- 29-10-1991.

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 gourds on which removal is sought have lapsed upon the dissolution of the 9^th Lok Sabha. The general rule is that no House of Parliament can seek to bind its successor. All pending businesses at the time of dissolution of House lapse. A motion for removal of a Judge is just another motion and perishes with the expiry of the term of the earlier dissolution of House.

The question whether the motion for the removal 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 justifiable before Court.

The constitutional process of removal of a Judge, both in its substantive and procedural aspects, is a political proves 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, 1968, acts in an area outside the Court’s jurisdiction There is nothing in the Judges (Inquiry) Act, 1968 which detracts from this doctrine of lapse. On the contrary, the provisions of ‘Act’ are consistent with this constitutional position.

Art. 124(5) pursuant to which the Judges (Inquiry) Act, 1968, is a mere enabling provision. Prior ‘proof’ of misconduct is not a condition precedent before the bar under Art. 121 against the discussion of the conduct of Judge is lifted.

The action of the Speaker in admitting the notice of motion without reference to the House and constituting a committee for investigation without the support of the decision of the House is ultra virus Articles 100(1), 105, 121 and the Rules made under Art. 118 of the Constitution.

The provisions of the Judges (Inquiry) Act, 1968 can be read consistently with the Constitutional Scheme under the aforesaid Articles. But if the provisions of the Act are so construed 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 unconstitutional.

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 opportunity, admittedly, was afforded tot he judge of being heard before the decision was taken.

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 Judges sterling and unsullied reputation and integrity 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 misbehavior and restrain the Judge from judicial functioning.

The Speaker’s decision is vitiated by mala fides and oblique and collateral motives.

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, respectively, do not have the requisite standing to sue and the writ petitions are, accordingly, not maintainable at their instance.

At all events, even if the Speaker is held to be statutory authority acting under the Statute and no as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the Court, any judgement rendered and writ issued by this Court have the prospect of being anfractuous in view of the undisputed constitutional position that, in the ultimate analysis, the decision to adopt or turn down the motion is exclusively with in the power of the House and the court would have no jurisdiction over that area.

(A) Constitution of India, Arts. 124, 118 – Removal of Supreme Court Judge – Motion by members of Parliament – Does not lapse on dissolution of House of parliament – Courts retain jurisdiction to so declare.

Supreme Court Judge – Removal – Motion in House of Parliament – Jurisdiction of Court.

The effect of Arts. 124(5) and 118 and Ss.3,4 of the Act is that the motion shall be kept pending till the committee constituted for the purpose of making an investigation into grounds on which the removal of Judge is prayed 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 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 of efficacy than rules made by the House for itself under Article 118. Such a law can, and under the present statute does 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 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 and operation of the Rules under Article 118. 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" in S. 3 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. Therefore the plea that such a motion lapses with the dissolution of the House of Parliament is not tenable. (Para 31)

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 can be said that under the law such a motion does not lapse and the Courts retain jurisdiction to so declare. (para 32)

(B) Judges (Inquiry) Act (1968), S. 3 – Supreme Court Judge – Removal – Motion by members of Parliament – Process up to point of admission of motion, constitution of committee and recording of findings by Committee – Not proceedings in House of Parliament – Matter up to that point cannot be said to remain outside the court’s jurisdiction.

B. C. Ray, J. (for himself and on behalf of M. N. Venkatachaliah, J.S. Verma and S.C. Agrawal, JJ.) (Majority view): - The constitutional process for removal of a Judge up to 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. Up to that point he matter cannot be said to remain outside the Court’s jurisdiction. (Para 55)

Making of the allegation, initiation of the proceedings, investigation and proof of the misbehavior or incapacity of a Judge are governed entirely by the law enacted by Parliament under clause (5) of Art. 124and when that stage is reached, parliament comes into the picture and the motion for removal of the Judge on the ground of proved misbehavior or incapacity is moved for presentation of the address to the president in the manner prescribed. The matter not being before 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 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 necessarily be outside parliament and not within it. In other words ,proof which involves a discussion of the conduct of the Judge must be 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 judicial process. The policy appears to the that the entire stage up to proof of misbehavior 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 Parliament and not within it. If, this be so, it is a clear pointer that 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 misbehavior or incapacity has been proved. The Judges (Inquiry) Act, 1968 enacted under Article 124(5) itself indicates that 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 expressions used in the Act, particularly section 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 described 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 tot he ‘Speaker/Chairman’ on receiving such a complaint if the Speaker/Chairman forms the opinion that there is a prima facie case for investigation, he will constitute the judicial committee as prescribed; and if the finding reached is ‘guilty’ then the Speaker/Chairman commences the Parliamentary process in accordance with Article 124(4) for removal of the Judge and the bar in Article 121 is lifted (Para 39)

L. M. Sharma, J. (Minority view):-

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 jurisdiction, which may result in issuance of contradictory directions. Besides, the Court cannot be expected to pass orders in the nature o 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. Therefore, 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. (Para 104)

(C) Judges (Inquiry) Act (1968), S. 3 – Constitution of India, Arts. 124, 121, 118 – Supreme Court Judge – Removal – Prior proof of misconduct in accordance with law made under Art. 124(5) – Is condition precedent for lifting bar under Art. 121 against discussing conduct of Judge in Parliament – Field relating to removal of Judge – Covered by Art. 124 – Rules made under Art. 118, not applicable.

Per B. C. Ray (for himself and on behalf of M. N. Venkatachaliah, J.S. Verma and S.C. Agrawal, JJ.) (Majority view):- In case of removal of Supreme Court Judge 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 parliament, Article 124(4) really becomes meaningful only with a law made under Article 124(5). Without such a law the constitutional schemes and process for removal of a Judge remains inchoate. (Para 55)

It is not the law enacted under Article 124(5), which abridges or curtails the parliamentary process or exclusivity of its jurisdiction but the Constitutional Scheme itself which by enacting clauses (4) and (5) simultaneously indicated that the stage of clause (4) is reached and the process there under commences only when the alleged misbehavior or incapacity of the Judge is proved in accordance with the law enacted under clause (5)

It is only then that the need for discussing a Judge’s conduct in parliament arises and, therefore, the bar under Article 121 is lifted. In short, the point of time when the matter comes first before parliament in the Constitutional Scheme, Article 121 provides that the bar is lifted. The over view created difficulties by restricting discussion in Parliament on a motion, which would be before it. The suggestion to develop a convention t avoid discussion at the 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 unproved for and the field left to a convention to be developed later, while enacting these provisions with extreme care and caution in a written Constitution is extremely unlikely. This indicate 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 c. when the misbehavior 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 Parliament’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 process under clause (4) commences, culminating in the result provided in it. (Paras 41, 42)

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 distinguished 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. (Para 43)

If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) ‘on ground of proved misbehavior or incapacity’ it presupposes that misbehavior 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 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 interlay governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha. (Para 44)

The significance of the word ‘proved’ before the expression ‘misbehavior 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 misbehaviou’ while in clause (4) of Article 124, it is ‘the ground of proved misbehaviour or incapacity’. 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 Parliament under clause (5) of Article 124. In view of the fact that the adjudication on the ground of misbehaviour under Article 317 (1) is to be by the Supreme Court, in the case of a Judge who is a higher constitutional functionary, the requirement of judicial determination of the ground is re-informed by the addition of the word "proved" in Article 124 ( 4) the and requirement of law for this purpose under Article 124 (5). (Para 45)

Use of the word ‘may’ in clause (5) of Art. 124 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. 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 Parliament to regulate even the procedure 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’. If the word ‘may’ in Article 124(5) is given any other meaning that sub-Article would render itself, to be treated by parliament, as superfluous, redundant and otiose. The power to prescribe a procedure for the exercise of power under Article 124 (4) could otherwise also e available to be House. The law envisaged under Article 124(5) is not such a law; but one which would effectuate the constitutional policy and philosophy of the machinery for removal of Judges. The use of the word ‘may does not, therefore, necessarily indicate that the whole of clause (5) is an enabling provision leaving it to Parliament to decide whether to enact a law even for the investigation and proof of the misbehavior or incapacity or not. (Paras 46, 47)

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 tot he 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 the both the Houses. The motion and its consideration and adoption by the House would be outside the ambit of such law and it would be regulated by the rule of procedure made under Article 118. This view is too narrow. By bridging in the rules of procedure of the House made under Article 118 it introduces an element of uncertainty and might affect independence of the judiciary.

Second view is to be preferred. It enables the entire process of removal being regulated by a law of Parliament – ensures uniformity and reduces chances of arbitrariness. Article 118 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. (Paras 49, 50)

Article 124 (5) is in the nature of a special provision 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. (Para 52)

It is not permissible to read the Act consistent with the stand that the House is not seized of the motion and does not nave anything to do with the inquiry pending before the Committee, until the report is received.(Para 95, 96)

The 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 control of the proceeding through its representative the Speaker or the Chairman. It has to be noted that "the ground of proved misbehavior 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’. (Para 100)

So long the statue enables the House to maintain its control either directly or through the Speaker, the entrustment of the investigation does not amount to abdication of power. it is a case where 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. 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 the on the other hand it is held that the Committee is an independent statutory body not subject to the control of the House directly or through the Speaker, the Act may be rendered unworkable. (Paras 101, 102)

(D) Judges (Inquiry) Act (1968), S. 3 – Validity – Act is constitutional and intra vires – Removal of Supreme Court Judge – Admission of motion and constitution of Committee for investigation of misbehaviour by Speaker of house of People – Speaker does not act as part of House.

The Speaker of House of People while admitting a motion for removal of Supreme Court Judge and constituting a Committee to investigate the alleged grounds of misbehavior 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 inter vireos. (Para 55)

The mere fact that CJ. (5) of Art. 124 does not form a part of CJ. (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 CJ. (5). It is likely that the framers of the Constitution thought of clearly demarcating the boundaries and, therefore, indicated that up to the stage of proof of misbehaviour or incapacity the field is covered by a law enacted by Parliament, the first part being covered by CJ. (5) and the latter by CJ. (4) with the only difference the Parliament was given the option to regulate even the procedure for the presentation of an address after the misbehaviour or incapacity had been proved by enacting a law to the purpose to make it more definite and consistent.

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 tot he ‘Speaker’ does not make it ‘motion in the House’ not withstanding use of that expression in S. 6 would not say that no further step is to be taken incase of a finding of ‘not guilty’. It only means that when the allegation is not proved, the Speaker need not commence the process under CJ. (4) which is started only in case it is proved. The Speaker is, therefore, a statutory authority under that 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 Art. 124 (5) cannot be a safe guide to determine the scope of Art. 124(5).

In view of the construction of the interconnection amongst Arts 118, 121, 124(4) and 124(5) the provisions of the Judges (inquiry) Act do not foul with the Constitutional Scheme. (Paras 47,48)

(E) Constitution of India, Art 124 – Supreme Court judge – Removal – Admission of motion and constitution of Committee for investigation by Speaker of House of People – Opportunity of hearing to Judge – Not necessary.

When the Speaker of House of People admits the motion for removal of Supreme Court Judge under S. 3of the Judges (Inquiry) Act, a Judge is not, as a matter of right, entitled to such notice. The scheme of the statute and the 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 Committee for investigation without affording such an opportunity does not, by itself and for that reason alone, vitiate the decision. (Para 58)

(F) Constitution of India, Art 124 – Removal of Supreme Court Judge – Inquiry into alleged misbehavour or incapacity of Judge – Grant of interim relief of restraining Judge from functioning Judicially on initiation of process – Not permissible.

Per B. C. Ray. J. (for himself and on behalf of M.N. Venkatachaliah, J.S. Verma and S. C. Agrawal JJ.) (Majority view):- During the stage of inquiry into alleged misbehavior or incapacity of Judge from discharging judicial functions cannot be granted. it is the entire Constitutional Scheme including the provisions relating to the process of removal of a Judge which are to be taken into account for the purpose of considering this aspect. There cannot be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in Cls. (4) and (5) of Art. 124 read with Art. 121. No authority can do what the Constitution by necessary implication forbids. Incidentally, 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 process under the Judges (Inquiry) Act, 1968. The Constitutional Scheme appears to be that unless the alleged misbehavior or incapacity is ‘proved’ in accordance with the provisions of the law enacted under Art. 124(5) and a motion for presetting an address for removal of the Judge on the ground of proved misbehavior or incapacity is made, because of the restriction contained in Art. 121, there cannot be a discussion about the judge’s conduct even in Parliament which has the substantive power of removal under Art. 124(4). If the Constitutional Scheme therefore is that the Judge’s conduct cannot be discussed even in 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 cannot be said 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 state for this purpose. The indication, therefore, is that interim direction of this kind during the stage of inquiry into the alleged misbehavior or incapacity is not contemplated it being alien to our Constitutional Scheme. (Para 61)

The question of propriety is, however, different from that of legality. The absence of a legal provision, like Art. 317 (2) in the case of a Mamber of Public Service Commission, to interdict the Judge faced with such an inquiry from continuing to discharge judicial functions pending the outcome of the inquiry or in the event of a finding of misbehavior or incapacity being proved till the process of removal under Art. 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 sense of propriety of the Judge himself and the judicial traditions symbolized 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 decides as an act of propriety to abstain from discharging judicial functioned during the interregnum. Since the 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 f a Member of a 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 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 embarrassment to the learned Judge and to the institutionally a manner which is conducive to the independence of judiciary and should be Chief Justice of India be of the view that in the inters of the institution of judiciary it is desirable for the learned Judge to abstain from judicial work till the final outcome under Art. 124(4), he would advise the Judge accordingly. It is further reasonable to assume that 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 tot he Chief Justice of India for this purpose (Para 62)

Per L. M. Sharma, J. :- The Supreme Court cannot pass order that the Judge of the Supreme Court sought to be removed should not be allowed to exercise his judicial powers. (Pare 106)

In the instant case the motion by members of parliament for removal of Supreme Court Judge on ground of misbehavior, etc. was admitted by the Speaker of House of People. The writ perition was filed for seeking declaration from Supreme Court that the motion does not lapse on dissolution of House of People. It was alleged that ‘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 Judgement rendered and writ issued by Supreme Court have the prospect of being anfractuous in view of the undisputed constitutional position that, in the ultimate analysis, the to be taken into account for the purpose of considering this aspect. There cannot be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in CJs. (4) and (5) of Art. 124 read with Art. 121. No authority can do what the Constitution by necessary implication forbids. Incidentally, 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 intimation of process under the Judges (Inquiry) Act, 1968. The Constitutional Scheme appears to be that unless the alleged misbehaviour or incapacity is ‘proved’ in accordance with the provisions of the law enacted under Art. 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 there striation contained in Art. 121, there cannot be a discussion about the Judge’s conduct even in Parliament which has the substantive power of removal under Art. 124(4). If the Constitutional Scheme therefore is that the Judge’s conduct cannot be discussed even in 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 cannot be said 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 statue for this purpose. The indication, therefore, is that interim direction of this kind during the stage of inquiry into the alleged misbehavior or incapacity is not contemplated it being alien to our Constitutional Scheme. (Para 61)

The question of propriety is, however, different from that of legality. The absence of a legal provision, like Art. 317 (2) in the case of a Mamber of Public Service Commission, to interdict the Judge faced with such an inquiry from continuing to discharge judicial functions pending the out come of the inquiry or in the event of a finding of misbehavior or incapacity being proved till the process of removal under Art. 124(4) is complete, does not necessarily indicate that the Judge shall continue to function during the period. That area is to be covered by the sense of propriety of the Judge himself and the judicial tradition symoblised 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 decides as an act of propriety to abstain from discharging judicial functions during the interregnum. Since the 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 317 (2) in a similar situation has deliberately abstained from making such a provision incase of higher constitutional functionaries, 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 embarrassment 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 in the interests of the institution of judiciary it is desirable for the learned Judge to abstain from judicial work till the final outcome under Art. 124(4), he would advise that Judge accordingly. It is further reasonable to assume that 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 to the Chief justice of India for this purpose. (Para 62)

Per L. M. Sharma, J. :- The Supreme Court cannot pass order that the Judge of the Supreme Court sought to be removed should not be allowed to exercise his judicial powers. (Para 106)

(G) Constitution of India, Articles 124, 32 – Removal of Supreme Court Judge – Admission of motion by Speaker of House of People – Case of malafides against Speaker – Require to be established on strong grounds – Cannot be made out merely on ground of political affiliation of Speaker.

In the instant case the motion by members of parliament for removal of Supreme Court Judge on ground of misbehavior, etc. was admitted by the Speaker of House of People. The writ perition was filed for seeking declaration from Supreme Court that the motion does not lapse on dissolution of House of People. It was alleged that ‘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 Judgement rendered and writ issued by Supreme Court have the prospect of being anfractuous 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 or in-fractiousness.

Held, the elements of in-fractiousness, it is suggested, arise in tow areas. The first is, as is posited, what should happen if the House of parliament choose to say that in there view the motion has lapsed? Would the Court then go into the legality of the proceedings of the House of Parliament and declare the decision of the House void?

The second area of the suggested source of in-fractiousness is as to the consequences of the position that the Houses of Parliament would, not-withstanding 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 Government if the House is of the view that Government is guilty of an illegal inaction on the Speaker’s decision as ultimately the House has dealt with the Committee’s report.

On the first point there is and should be no difficulty. The interpretation of the law declared by the Supreme Court that a motion under S. 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.

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 deicer 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 constitutional position and leave the different organs of the State to consider matters falling within the orbit of their respective jurisdiction and powers. (Para 70)

(J) Judges (Inquiry) Act (1968), Pre – Scope – Interpretation – Consideration of entire background as aid to interpretation – permissible – per. L. M. Sharma, J.

Per. L.M. Sharma, J. – It cannot be said that even after the passing of the 1968 Act parliament can choose either to proceed according to the said Act or to act independently ignoring the same. Once the 1968 Act was enacted, parliament is bound to follow it, but earlier it was free to proceed as it liked. However, the exercise of power under CJ. (4) Could not be said to be conditionally the enactment of a law under CJ. (5). (Paras 88, 90)