It went on to say that the 9^th Lok Sabha was dissolved on 12-03-1991. Though the Lok Sabha was dissolved, the Speaker continued in office till the first meeting of the 10^th Lok Sabha as contemplated by the second proviso to Article 94 of the Constitution.

A copy of the Notification constituting the Committee together with the Notice of Motion dated 27-02-1991 including the explanatory note regarding evidence on the charges against Mr. Justice V. Ramaswami and the announcement made by the Speaker in the Lok Sabha on 12-03-1991were communicated to the Presiding Officer of the Committee (Mr. Justice P.B. Sawant). A few days later a copy of the audit observations as formulated taking into account the comments given by Justice V. Ramaswami and copies of annexures to the explanatory note accompanying the Notice of Motion and some other material made available tot he speaker by the signatory members of the Lok Sabha at the time of giving Notice of Motion were also forwarded to the Presiding Officer.

No request of the President of India was conveyed either to Mr. justice P.B. Sawant or Chief Justice P. D. Desai, to function as Members of the Inquiry Committee. Such a request was thought to be necessary if the time spent by the two judges in the performance of the functions as Members of the committee was to be treated as ‘actual service’ within the meaning of paragraphs 11(b)(i) and 11(b) (ii) of part D of the Second Schedule of the Constitution of India read respectively with Section 2(b)(i) of the Supreme Court judges (Conditions of Service) Act and Section 2(c)(i) of the High

(Page No. 189) Court judges (Conditions of Service) Act. On 16-04-1991 the Committee’s Secretary addressed the Department of Justice, among other things, for issuing Presidential Notifications to enable justice P.B. Sawant and Chief Justice P. D. Desai to function as members of the Committee. The Committee was scheduled to meet on 28-04-1991 to consider the situation arising from the want of a request by the President of Justice P.B. Sawant and Chief Justice P. D. Desai to function as Members of the Committee. On the evening of 25-04-1991 the Secretary General of the Lok Sabha forwarded to the Presiding officer a letter received from the Additional Secretary (Justice), Government of India, stating that Justice V.Ramaswami had made a representation to the President of India raising a fundamental question regarding the validity of the constitution of the inquiry Committee, stressing in particular that on the dissolution of Lok Sabha on 12-03-1991 the Motion had lapsed, and therefore, all other matters arising out of the Motion had also lapsed. The letter further stated that the Ministry of Law had obtained the opinion of the Attorney General who had said that consequent upon the dissolution of the Lok Sabha, the Motion had lapsed and the inquiry before the Committee could not container. The Ministry of Justice did not offer their opinion or advice in the matter but contented themselves by intimating the Attorney General’s view to the Secretary General of the Lok Sabha and the Secretary General of the Lok Sabha in turn merely forwarded the letter of the Ministry of Justice without indicating what further action was proposed by them in the matter.

At the initial stage, the Committee secured the services of Mr. F.S. Nariman, Senior Advocate, Supreme Court, to assist the Committee. Sub-sequentially, the services of

Mr. Rajinder Singh, Senior Advocate and Mr. Raju Ramachandran, Advocate, were secured to assist the Committee in investigating the case.

A body styled as the Sub-Committee on Judicial Accountability filed Writ petition in the Supreme Court of India praying, inter alia, that the Union of India be directed to take immediate steps to aid the Inquiry Committee to discharge its functions under the judges (Inquiry) Act. they complained that the President had not issued the necessary Notification to treat the time spent by Justice P. B. Sawant and Chief Justice P. D. Desai as Members of the Committee as "actual service" within the meaning of the relevant provisions of the Constitution and the Supreme Court and the High Court judges (Condition of Service) Acts.

At its meeting held on 28-04-1991, the Committee considered the entire situation then obtaining and decided that for the time being they should not take any immediate steps to commence their work in view of the pendency of the case before the Supreme Court.

The Writ Petition filed by the Sub-Committee on Judicial Accountability (Writ Petition No. 491/91) was heard by the Supreme Court along with three other Petitions. A common judgement was pronounced by the Constitution Bench of the Supreme Court on 29-10-1991. The Supreme Court,

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(Page No. 190) by majority of 4 to 1, held, inter alia, that the Motion for presenting an address for the removal of the judge did not lapse with the dissolution of the 9^th Lok Sabha and that the action of the Speaker in admitting the Motion and constituting the Committee was within his competence. The Court also upheld the virus of the judges (Inquiry) Act, 1968.

After the Supreme Court pronounced its judgement, the Ministry of Law and Justice communicated on 20-11-1991 to he Secretary General of Lok Sabha the request of the President to Justice P. B. Sawant and Chief Justice P. D. Desai to function as Members of the Committee.

Within a few days thereafter on 26-11-1991, Mr. Atul Vig, Advocate of Justice Ramaswami, addressed a letter to the Presiding Officer of the Committee demanding that the entire material on the basis of which the Hon’ble Speaker of the 9^th Lok Sabha admitted the Motion and constituted the Committee, be forwarded to him. He chose to add that in the event of his request not being granted, within a reasonable period of time, he would be left with no choice but to seek appropriate remedies. He further added that the request was without prejudice to his right to question both the constitution of the Committee and any proceeding under taken by the Committee thereafter. He sought to make it expressly clear by writing the letter that his client should not be deemed to have submitted to the jurisdiction of the Committee. A similar letter was again written by Mr. Atul Vig on 06-12-1991, reiterating that if he did not receive the material before the weekend, he would be left with no choice cut to move the Court of appropriate jurisdiction for a mandamus in that regard.

At the meeting held on 07-12-1991, the Committee considered the letters of Advocate Vig and although there was no obligation to furnish any documents to Justice Ramaswami until the framing of the charges, if any, the Committee decided to furnish to him copies of all documents received from the office of the Hon’ble Speaker of the Lok Sabha. The Secretary of the Committee forwarded the said copies of documents to Mr. Atul Vig on 07-12-1991.

The next letter on behalf of Justice Ramaswami was by Mr. Ranjit Kumar, Advocate on 11-12-1991. He requested inspection of the original documents, copies of which had been supplied, on 07-12-1991. He also wanted two sets of copies of documents to be supplied, one for the use of his Senior Counsel Mr. Kapil Sibal and another for Justice Ramaswami. Mr. Kumar was informed on the same day that the originals of the documents had been called for and that he could take inspection on their receipt. On 24-12-1991 Mr. Kumar was informed that originals of documents were received and that he should inspect the documents from 26-12-1991 onwards. Inspection was accordingly taken.

The Committee met on various days from 29-11-1991 onwards and started the scrutiny of various documents already received. It asked for and obtained further documents from the High Court of Punjab and Haryana, the Chandigarh Administration, the office of the Accountant

Briefly, the first charge   was in respect of the alleged willful abuse by Justice Ramaswami of his powers and authority as Chief Justice of the High Court of Punjab and Haryana in unauthorisedly getting purchased from favored dealers, items of furniture, furnishings and other articles value at more than RS. 13 lakh, far in excess of and wholly disproportionate to the requirements of the official residence and the office wing thereof and beyond the limits prescribed by the relevant rules for the residential portion of the official residence.

The Second charge related to the alleged purchase of 1637 sq. ft. of superior quality wall-to-wall carpet and foam for the conference room and extended office from a favored dealer at excessive price by splitting bills, whereas in fact what was alleged to have been actually found at the residence was only 1130 sq. ft. of carpet and foam. Similarly, while the floor area of the other rooms, staircase and cover verandah was 2884 sq. ft only, total carpet of the size of 3527 sq. ft. was alleged to have been purchased and what was allegedly found was only 2884 sq. ft.

The third charge related to thirteen woolen carpets allegedly purchased for use in the High Court but found in the official residence of the Chief Justice. Out of them, four carpets were alleged to have been replaced. The purchases were from favored dealers and by splitting bills.

The fourth charge was concerned with the alleged purchases from a favored dealer of sofas, sofa chairs, center tables and corner tables under different vouchers by splitting bills, which purchases were wholly did proportionate to the requirements of the office wing of the official residence. Some of them were allegedly not used in the office wing be were found elsewhere in the official residence. The fifth charge was in respect of furniture and furnishings alleged to be missing when Justice Ramaswami handed over charge of his residence. The sixth charge related to six sofa chairs which were bought and paid for but were allegedly no actually supplied at the official residence on the dates of alleged purchase. They were alleged to have been surreptitiously brought into the official residence of Justice Ramaswami, a few days before he handed over charge of his residence. The seventh charge was in respect of the alleged purchase

(Page No. 192) and supply of eighteen suit/attach cases and one brief case out of which six suit cases and a brief case were alleged to have been purchased and supplied around the time of Justice Ramaswami’s son’s marriage and six suit cases were allegedly purchased and supplied a few days before his appointment as judge of the Supreme Court of India. Out of the eighteen suit cases purchased and supplied, only thirteen were allegedly found at the residence when he handed over charge and none of them appeared to be recently purchased. The eighth charge related to the purchase of silver maces for the High Court of Punjab and Haryana at allegedly excessive price and without inviting quotations and by splitting the bills even though the judges of the High Court had opposed the purchase of the maces. The ninth charge related to the allegedly unauthorized reimbursement of telephone charges amounting to Rs. 76,150 on account of a telephone connection maintained at Justice Ramaswami’s residence at madras for the period from October 1987 to November 1989.

The tenth charge was regarding alleged excessive expenditure on the telephone at the residence of the Chief Justice at Chandigarh during Justice Ramaswami’s tenure. The amount involved was

Rs. 9.10 lakh. The eleventh charge was regarding the allegedly unauthorized taking, under the instructions of Justice Ramaswami, of two staff cars, from Chandigarh to Madras in May 1989 ostensibly for official purpose but in fact for Justice Ramaswami’s private purpose. It was further alleged that Justice Ramaswami got reimbursed petrol charges in excess of what he was entitled to under the law by sanctioning the same. The twelfth charge related to the alleged unlawful expenditure involved in the visits of two Assistant Registrars of the High Court to Madras to take the said cars to Madras and bring them back. The two Assistant Registrars who went to Madras along with the said cars returned by air. Thereafter one Assistant Registrar again went to Madras by air to fetch the two cars back. The charge also related to ten trips by air from Chandigarh to Delhi, Delhi to Madras, and back by the principal Secretary to Justice Ramaswami involving an expenditure of RS. 21,000. All the trips were alleged to have been unlawfully made under the directions of Justice Ramaswami. The thirteenth charge related to the alleged creation of a forward group of officers in the High Court with a view to help Justice Ramaswami to carry out various unauthorized acts and the out of turn promotions/confirmations given to those officers by way of reward. The charge also alleged that Justice Ramaswami directed or permitted some officers to visit various places, outside the State, for his private and undisclosed purposes at the expense of the High Court. The fourteenth charge was in respect of the alleged willful breach of the Punjab and Haryana Financial Rules in regard to various acts of omission and commission alleged in the earlier charges. In the statement of grounds on which the charges were based, the names of witnesses proposed to the examined and documents proposed to be tendered in respect of the charges were indicated at the end of the grounds in support of each charge.

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(Page No. 193) It was also mentioned there that, if felt necessary, other documents and witnesses would be called in evidence.

The charges together with the statement of grounds on which each of the charges was based were communicated to Justice Ramaswami along with the statutory notice under Section 3(4) of the judges (Inquiry) Act, read with Rule 5 of the Rules, on 14-01-1992. The notice issued to Justice Ramaswami requited him to appear before the Committee on 10-02-1992 either in person or through a pleader duly instructed and able to answer all material questions relating to the inquiry. He was also requested to produce on that day the witnesses upon whose evidence he relied and all documents upon which he intended to rely in support of his defence. He was also in formed that if he desired to present a written statement of defence, he could do soon or before

04-02-1992. He was requested to cooperate by presenting his written statement of defence and by appearing before the Committee on the prescribed date, since the Act provided for a period of three months only from the date of service of charges within which the report was to be submitted. He was also informed that the proceedings would be held in camera but the Committee would like to know whether he desired the proceedings to be conducted in public. He was further informed that the signatories to the Notice of Motion and/or their advocates would be permitted to remain present and watch the proceedings on the condition that no part of the proceedings would be divulged or published in any manner. It was made clear that anyone who applied in writing for permission to be present to watch the proceedings would, in the discretion of the Committee, be granted such permission

(Page No. 194) subject to similar conditions. Copies of all documents of which copies could be made were sent along with the charge. In the case of the remaining documents, where it was not possible to give copies because of their volume, he was offered inspection of such documents, with due notice. All the statements made in the notice communicated to Justice Ramaswami were made in pursuance of decisions taken by the Committee at its various meetings before finalizing the charges and communicating them to Justice Ramaswami.

Justice Ramaswami chose not to file a written statement of defence. Instead, on 21-01-1992 he addressed a letter to the Presiding Officer of the Committee in which he, inter alia, questioned the constitution of the committee and the authority of the Speaker to constitute the Committee. He leveled various allegations against the individual members of the Committee and finally stated:

"The present communication by me to you as Presiding Officer should not be construed as having my submitted to your jurisdiction. Indeed it is unthinkable that I would in the contest of what I have stated ever consider myself amenable to your jurisdiction".

This letter was followed by another letter dated 24-01-1992, the opining paragraph of which was as follows:

"As I have indicated in my letter on 21-01-1992 I have intention to submit to the jurisdiction of the Committee in the light of the circumstances already communicated to you".

After raising certain other issues, towards the end of the letter, he categorically stated: "I do not intend to submit to your jurisdiction." He questioned the procedure adopted by the Committee in framing charges and suggested that the Committee should have first held an inquiry, collected the documentary evidence, recorded the statements of witnesses and communicated the same to him before framing charges. He also told the Committee that if the Committee were to conduct the inquiry in the manner indicated by him in his letter he would, then, be in a position to consider whether or not he should submit to the jurisdiction of the Committee. He also added that in the event he chose to participate in the proceedings he would first have to cross-examine the Presiding Officer.

There was a third letter from Justice Ramaswami on 02-02-1992 by which, among other things, he required the Committee to accede to the demands indicated by him in his letter to enable him to choose whether to submit tot he jurisdiction of the Committee. He repeatedly used the words "in the event he chose to submit to the jurisdiction of the Committee" and reiterated the assertion in his letter that it was unthinkable that he would

(Page No. 195) in the context of what he had stated ever consider himself amenable to jurisdiction of the Committee.

The Committee was not obliged to take notice of the letters and to answer the queries raised by Justice Ramaswami. Yet the Committee by its letter dated 27-01-1992 in reply to his letters of 21^st and 24^th January, 1992, inter alia, informed him that it was inappropriate for him to enter into correspondence with the Tribunal constituted to investigate his conduct. He was also informed that he may raise all the objections as he may have in his written statement of defence because all objections can only be (and will be) judicially considered by the Committee and deal with in accordance with law.

Justice Ramaswami not having appeared before the Committee and not having submitted his written statement of defence, the Committee, as stated earlier, is not obliged to answer the issues raised and allegations made by him in his various letters. Himself a judge of the highest Court in the Country Justice Ramaswami should have realised that it was improper for him to address letters to the Tribunal constituted to Enquirer into his conduct. The Constitution, and the Statute enacted in pursuance of the Constitutional directive contained in Article 124(5) of the Constitution, have entrusted the task of inquiring into the conduct of the judge to the Committee appointed by the Speaker and it was the duty of Justice Ramaswami, who has taken an oath to uphold the Constitution and the laws, to appear before the Committee, file his written statement of defence and raise therein whatever question he considered it necessary to raise. It was the duty, which he owed to the oath which he had taken, to the Court in which he was serving, to the institution of judiciary and tot he public who had reposed such great faith and confidence in the judges and, therefore, provided them various safeguards. instead, he chose to abstain from participating in the proceedings and to address letters to the Committee asserting that it was unthinkable for him to submit to the jurisdiction of the Committee and raising technical questions of procedure as well as making wild allegations and unwarranted insinuations against the Members of the Committee.

It is clear from various letters of Justice Ramaswami that he never has the intention of submitting to the jurisdiction of the committee and was interested only in raising different kinds of objections.

Justice Ramaswami’s Counsel also addressed several letters tot he Committee in connection with the supply of copies of documents and inspection of documents, while all the time repeating that this letters should not be construed as submission to the jurisdiction of the Committee. That was the constant refrain of his letters.

The Committee explained the circumstances under which the Committee had no option but to proceed expert. It also made it clear that it would follow the principles of the Evidence Act as far as possible and be guided by the principles of natural justice. It was also made clear in the Order that

The Committee then dealt with some of the objections raised by Justice Ramaswami.

One of the objections related to he disqualification of individual Members of the Committee. He alleged that the Presiding Officer of the Committee and Chief Justice Desai were chosen by the Speaker himself and without referring the matter to the President of India and without the concurrence of the Chief Justice of India. He further alleged that the Presiding Officer being junior to him in seniority in the Supreme Court was disqualified. He also alleged that Mr. Madhu Dandavate who was the prime signatory to the Motion and the Presiding Officer hailed from the same State and that he was also an invitee at the Presiding Officer’s daughter’s wedding. He further alleged on the basis of a Press report that the Presiding Officer either directly or indirectly through his relations had been allotted a flat by Mr. A. R. Antulay, the then Chief Minister of Maharashtra in the "infamous" Pratibha Co-operative Society and that the presiding Officer had not explained the circumstances in which the said allotment was made. He also alleged that the presiding Officer was in close touch with certain political parties and its leaders as reported in a news item which appeared in Hindustan times and Times of India of December 19, 1992. He further alleged that the Presiding Officer, a couple of days before the retirement of Chief Justice K.N. Singh, had along with Justice O. Chinnappa Reddy, attended a cocktail dinner at the residence of Mr. P.P. Rao, who was the Petitioner in his capacity as the President of the Supreme Court Bar Association in the Writ Petition which supported the case of the Sub-Committee on Judicial Accountability in terms of which certain relief’s were sought against him (justice Ramaswami) as well as against the present Government.

His allegations against Chief Justice P. D. Desai, Member of the Committee, were that he was also chosen by the Speaker himself without reference to the President of India or the Chief Justice of India. he further alleged that at the time of Chief Justices Conference held after his (Justice V.Ramaswami’s) appointment as judge of the Supreme Court which was presided over by Chief Justice E.S. Venkataramiah, Chief Justice Desai in the course of the Conference openly asked Chief Justice Venkataramain as to what he found in the (Justice Ramaswami) and others who were found eligible to be judges of Supreme Court which was found lacking in Chief Justice Desai. Chief Justice Desai was thus sore about all appointments made at that time and, therefore, he had disqualified himself when his concurrence to work on the Committee was sought. He also alleged that in a news item there was a report that Chief Justice P. D. Desai had incurred an expenditure of over Rs. 17 lakh as Chief Justice of the Bombay High Court for the renovation of his residential accommodation and if that was correct, Chief Justice Desai disqualified himself from conducting the inquiry since one of the charges leveled against him (Justice Ramaswami) was the squandering of public money as Chief Justice, with respect to the renovations made to his official residence while he was Chief Justice of Punjab and Haryana High Court. He also alleged that Chief Justice Desai had made large-scale renovations in the residential accommodation occupied by him both as Chief Justice of Himachal Pradesh High Court and of Calcutta High Court. He further said that no Chief Justice of the High Court was entitled to be a member of the Inquiry Committee and conduct the proceedings against a sitting judge of the Supreme Court and, therefore, the constitution of the Committee was illegal.

The other Member of the Committee, Justice O. Chinnappa Reddy’s credentials to be a member of the Committee were also questioned by him by alleging that the third Member of the Committee should be a distinguished jurist at the time of appointment and that Justice Reddy had not been credited with any written work on the basis of which he could be considered to be a distinguished jurist.

The Committee said the allegations in their entirety were baseless. The Presiding Officer (Justice P. B. Sawant) and Chief Justice P. D. Desai were contacted by the then Speaker on telephone and requested to serve on the Committee which he proposed to constitute under Section 3(2) of the Judges (Inquiry) Act, 1968. Both of them informed him that he should first approach the Chief Justice eof India and they could agree to serve on the Committee only after consulting the Chief Justice of India. Thereafter, both Justice P.B. Sawant and Chief Justice P. D. Desai spoke to the then Chief justice of India separately and the consent to be on the Committee was conveyed by both of them to the Speaker on telephone only after the Chief Justice of India conveyed that e had no objection against the acceptance of the assignment by them. it is also understood that the Speaker had approached the chief Justice of India for the purpose. It may be mentioned that the Act does not cast any obligation on the Speaker to consult either the Chief Justice of India or the President of India, nor is there any convention, which requires him to consult them before constituting the Committee. Neither Justice P.B. Sawant nor Chief justice, P. D. Desai knew the then Speaker personally before their appointment on the committee. There was no discussion with the Speaker or with any body else, either prior to the appointment of the committee or thereafter as regards anything connected therewith.

As regards the objection that the Presiding Officer being junior to Justice Ramaswami, could not be appointed on the Committee, it may be stated that all judges are equal in status and the Chief Justice is the first among equals. Besides, the provisions of Section 3(2) of the judges (Inquiry) act, 1968 do not prescribe that a judge of the Supreme Court on the Committee should be senior tot he one whose conduct is under investigation. The said provision gives power tot he speaker to nominate either the Chief Justice or any other judge of the Supreme Court. This has necessarily to be so, otherwise there would be no inquiry against the Chief Justice if ever such inquiry became necessary. Similar will be the situation if judges senior to the judge, whose conduct is under investigation for some reason, decline to be nominated.

As regards Shir Madhu Dandavate’s attendance a the presiding Officer’s daughter’s marriage reception on 02-12-1991, the presiding officer had sent invitation for the reception to everybody whom he knew and they included men and women from all walks of life irrespective of their political ideologies and affiliations the presiding Officer and his wife had called personally on Justice Ramaswami also to invite him to the reception as they had done in the case of other brother judges.

As regards the Presiding officer’s flat in Bombay, Justice Ramaswami has got his facts all wrong. Mr. Antulay has not allotted any flat to him any where including in the so-called "infamous" pratibha Co-operative Housing Society Limited. The Presiding officer is a member of the Fore-shore Co-operative Housing Society Ltd. which has constructed a building know as "Samata". The High Court and Supreme Court judges are members of the said society, an application was made to he Government to allot and to the Society. That application was pending disposal during which period the Chief Minister-ship changed hand thrice. Finally, the lease of land was granted when Mr. Antulay was the Chief Minister. no concession is given to the Society in lease-rent which is charged on the same scale as it is done to there Societies. As far as the Presiding officer knows, the lease-rent is on the basis of the market value although there is a restriction on transfer of flat and to that extent there is a discrimination against the Society compared to the other societies where there is no such restriction. The monthly out goings of the flat is Rs. 2500, which are likely to go up.

As regards the allegation that the presiding Officer was in close touch with certain political parties and its leaders, it is obvious that Justice Ramaswami has drawn this inference on the basis of certain news-item appearing in the Hindustan Times and the Times of India dated 09-12-1991 which suggested that the Inquiry Committee sought assistance of the Sub-Committee on Judicial Accountability (‘Sub-Committee’ for short) and some MPs, in gathering relevant material for the probe. The fact is that the Sub-Committee and two of the M Ps who are signatories to the Motion had requested the Committee to allow them to participate in the proceedings. To that, the Committee had replied by its first communication that at that stage they could only forward material in their possession relating to the allegations. Subsequently, they were informed that they would not be allowed to participate directly in the proceedings but they might assist the Counsel of the committee in the conduct of the proceeding. This correspondence between the Sub-Committee and the two MPs on the one hand and this Committee on the other was forwarded to Justice Ramaswami’s Counsel. This should have clarified the position and shown to him that the newspaper reports were not correct.

As regards the attendance a the dinner a the house of Mr. P.P. Rao, Mr. Rao at the relevant time was the president of the Supreme Court Bar Association (‘SCBA’ for short). In his capacity as the president of the SCBA Mr. Rao was an invitee at the dinners hosted to the judges of the Supreme Court by the president of India. he was also an invitee whenever the judges of the Supreme Court gave dinners to welcome the new judges as well as to bid farewell to the retiring judges. On such occasions, all the judges of the Supreme Court are the hosts, justice Ramaswami has also been a host along with all other brother judges where Mr. Rao was an invitee. This being the relationship between the president of the SCBA and the Supreme Court judges, courtesy demanded that when the president of the SCBA hosted dinners in honor of the retiring judges they should not decline his invitation. At this dinners it was not only the Supreme Court judges but also many advocates of the Supreme Court are invited. Following the same convention, Mr. Rao had also given dinner on the occasion to the retired judge, Justice B. C. Ray. At this dinner judges of the Supreme Court and advocates were present. At such dinners, it is the choice of the host to serve what he deems proper and it is not obligatory on every guest to partake everything that is served. It may further be added that as explained by Mr. Rao himself, he was a party tot he Writ Petition in his then capacity as the president of SCBA do and appeared in it as the Counsel for SCBA as he was authorized by it to do so.

As regards the allegation based upon a newspaper report that Chief Justice P. D. Desai had incurred an expenditure of over Rs. 17 Lakh as Chief Justice of the Bombay High Court for the renovation of his official residence, it is apparently made without verification of facts. There was no renovation as such of the official residence. Only necessary repairs, additions and alterations ere carried out by the State Government.

It is penitent to mention in this connection that under Section 22A of the High Court judges (Conditions of Service) Act, 1954, every judge is entitled without payment of rent to the use of an official residence in accordance with such rules as may, from time to time, be made in this behalf. Rule 22A of the High Court judges Rules, 1956, inter alia, provides that each judge, who avails himself of the use of an official residence, shall be entitled without payment of rent to the use of a furnished residence throughout his term of office and that no charge shall fall on the judge personally in respect of the maintenance of such residence. It is clear, therefore, that the maintenance of his official residence is not a matter within the discretion, or power, authority and jurisdiction of the Chief Justice. Since the property is owned by the State Government, it is for them to maintain it in a proper condition. In fact, in the Bombay Chief Justice’s House, the work of repairs, maintenance, etc. is being one by the Public works Department of the State Government and on the present occasion also the work was carried out by the said Department and not by the high Court.

The allegation that large scale renovations of the official residence occupied by Chief Justice P. D. Desai, when he was the Chief Justice of Himachal Pradesh High Court as well as of the Calcutta High Court, were made by him is also leveled without verification of facts. At both the places, the buildings which are used as official residences. Of the Chief Justice are owned and maintained entirely by Government. No major repair or renovation was carried out in the Chief Justice’s House in Shimla when Chief Justice P. D. Desai was in Himachal Pradesh. Neither Chief Justice P. D. Desai nor the High Court of Himachal Pradesh incurred any expenditure on repair or renovation of that House. So far as Calcutta is concerned, there was no official residence for the Chief Justice till Chief Justice Tevatia was transferred there sometime towards the end of 1987. The first floor of a Government owned bungalow was then earmarked as Chief Justice’s residence and was occupied by him. There was tenant on the ground floor who continued to occupy the same even after Chief Justice P. D. Desai was transferred to Calcutta in November 1988. Sometime thereafter the tenant vacated and possession was taken by the State Government. The tenanted portion of the property was in a damaged condition with considerable loss of fittings, fixtures and even doors, etc. After carrying out necessary repairs and alterations the possession of the said portion was handed over to the High Court a few months before Chief Justice P. D. Desai was transferred as Chief Justice of Bombay High Court. The repairs and alterations were effected in the said portion keeping in view the fact that it was an independent unit and should continue to remain as a completely independent unit. Besides being put to use as office portion, it was contemplated at one time to provide accommodation therein for visiting judicial dignitaries in case necessity the0reforearose and it was made ready for occupation accordingly. Only the office block in the said portion was used by Chief Justice P. D. Desai occasionally and for a short period only. Necessary repairs etc. were carried out in the first floor portion and in the servants quarters also a security guard room was constructed. The expenditure for carrying out all the necessary repairs, additions, alterations, etc., in the Chief Justice’s house, which is designated as office-cum-residence and is used as such, was incurred entirely by the State Government.

It may be mentioned that Justice Ramaswami has attempted to confuse the issue by trying to make it appear that the charge against him relates to renovation of the building used as the official residence of the chief Justice of Punjab and Haryanas High Court. In fact, the expend true incurred on the construction of the new extension wing in the said building or on the repairs, if any carried out in the said official residence during his tenure, is not at all the subject matter of the inquiry. The charge against him relates to the alleged squandering of public money by him out of the grants placed at the disposal of the High Court for unauthorized purchase of items and articles such as furniture, furnishing, kitchenware, etc. and it has nothing to do with the renovation or repairs of the building by Government.

With regard to the allegation that Justice Chinnappa Reddy is not a distinguished jurist as there is no published work to his credit, may be stated that it is for the Speaker to from his opinion on the subject and it is not open to question by anybody else.

It is necessary and desirable that we should refer to the constitutional and statutory provisions and consider what is necessary to be proved and how.

Prior to the government of India Act, 1935, under the High courts Act, 1861, Section 4, and Section 102 of the Government of India Act, 1915, judges of High Courts in India held office during the "pleasure" of Her or His Majesty. That was departure from the position then obtaining in England where judges held office during ‘good behavior’. In England while tenure during pleasure was the ordinary tenure of Government servants, including those who belonged to the permanent Civil Service, tenure during good behavior was generally confined (with few exceptions) to persons holding judicial office. The words ‘pleasure’ and ‘good behavior’ in relation to tenure of office are terms of art, the difference between the two being that person holding an office during pleasure can be removed without any reason for has removal being assigned, whereas a person holding office during good behavior cannot be removed from his office, except for misconduct as would, in the opinion of a Court of Justice, justify his removal. For reasons best known to the Rulers of the day, judges of Indian High Courts were expressly declared by statute to hold office during pleasure. That was so until 1935. The Government of India Act, 1935 brought about a significant change. Section 220(2) of the government of India Act, 1935 provided that every judge of a High Court shall hold office until he attained the age of 60 years. Fixity of tenure was thus provided. However, proviso(b) to Section 220(2) enabled the removal of a judge from his office if the Judicial Committee of the Privy Council, on reference being made to them by His Majesty, reported that the judge, on the ground of misbehavior or of infirmity of mind or body, ought to be removed. By providing for the removal of the judge for misbehavior, the concept of tenure during ‘good behavior’ was introduced.

Article 124(2) of the Constitution provides for the appointment of judges of the Supreme Court and declares that a judge of the Supreme Court shall hold office until he attains the age of 65 years. Similarly Article 217 of the Constitution provides for the appointment of judges of the High Courts and declares that a judge of the High Court shall hold office until he attains the age of 62 years. Clause (b) of the second proviso to Article 124(2) provides for the removal of a judge of the Supreme Court from his office in the manner provided in clause (4). Correspondingly clause (b) of the proviso to Article 217 provides for the removal of a judge of a High Court from his office in the manner provided in clause (4) of Article 124 for the removal of the judge of the Supreme Court. Article 218 stipulates that the provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation tot he Supreme Court with the substitution of references to the High Court for reference tot he Supreme Court Article 124 (4) states:

"A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House, present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity".

Article 124(5) which is also relevant and important is as follows:

"Parliament may by law regulate procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a judge under clause (4)".

Article 125 deals with the privileges, allowances and rights in respect of leave and pension of Supreme Court judges while Article 22 (2) deals with the allowances and rights of High Court judges. The provisos to Article 125(2) and Article 221 (2) respectively prescribe that the privileges, allowances and rights in respect of leave and pension of a Supreme Court judge and the allowances and rights of a High Court judge in respect of leave and pension shall not be varied to their disadvantage after their appointment.

In 1968, Parliament enacted the judges (Inquiry) Act, the law contemplated by Article 124 (5) of the Constitution, to regulate the procedure for the investigation and proof of misbehavior or incapacity of a judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith. Section 3 (1) of the Act provides for the admission of a Motion or refusal to admit a Motion by the Speaker of the House of the People or, as the case may be, the Chairman of the Council of States, upon notice being given of a Motion for presenting an address to the President for the removal of a judge. The Notice is required to be signed if given in the House of the People by not less than 100 Members of that House of by not less than 50 Members of the Council of States if given in that House. The Speaker or, as the case may be, the Chairman, is entitled to consult such person, if any, as he thinks fit and to consider such material, if any, as may be available to him. Section 3(2) requires the Speaker or, as the case may be, the Chairman, to keep the Motion pending, if admitted, and to constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a judge in prayed for, a Committee consisting of three members, of whom – (a) one shall be chosen from among the Chief Justice and other judges of the Supreme Court,

(b) one shall be chosen from among the Chief justice 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. There are two provisos to Section 3 sub-sections (2) which are not relevant for the purposes of this case. Sub-sections (3) and (4) are important and they are as follows:

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

"(4) Such charges together with a statement of the grounds 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."

Sub-sections (5), (6) and (7) provide for the medical examination of the judge where it is alleged that he is unable to discharge the duties of his office efficiently due to physical or mental incapacity and the allegation is denied. Sub-sections (8) and (9) are again important and are as follows:

"(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."

Section 4 of the Act is also important and may be usefully extracted here :

"4. Report of the 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, stating therein its findings on each of the charges separately with such observations on the whole case as it thinks fit.

(3) The Speaker or the Chairman, or where the Committee has been constituted jointly by the Speaker and the Chairman, both of them, 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."

Section 5 invests the Committee, for the purpose of making the investigation under the Act, with the powers of a Civil Court while trying a suit under the Code of Civil Procedure in respect of summoning of witnesses etc. section 6(1) prescribes that if the report of the Committee is that the judge is not guilty of any misbehavior or does not suffer from any incapacity, no further steps should be taken in either House of Parliament in relation to the report, and the Motion pending in the House shall not be proceeded with. Section 6(2) provides that if the report of the Committee contains a finding that the judge is guilty of any misbehavior or suffers from any incapacity, then the Motion together with the report shall be taken up for consideration by the house in which the Motion is pending. Sub-section (3) of Section 6 provides that if the Motion is adopted by each House of Parliament in accordance with the provisions of Article 124 (4) or, as the case may be, in accordance with that clause read with Article 218, 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 been adopted.

Section 7 deals with the Rule making power of a Joint Committee of both Houses of Parliament to carry out the purposes of the Act.

In exercise of the powers conferred by sub-section (4) of Section 7 of the judge’s (Inquiry) Act, rules have been made by the joint Committee constituted under Section 7 (1) of the Act. Rule 5 prescribes the manner of service of notice on the judge of the charges framed against him. Rule 6 enables the judge, when he appears, to object in writing to the sufficiency of the charges framed against him and, if the object in writing to the sufficiency of the charges framed against him and, if the objection is sustained, enables the Committee to amend the charge and give the judge a reasonable opportunity of presenting a fresh written statement of defence. Rule 7 prescribes the procedure to be followed where the judge admits or denies that he is guilty of any misbehavior or that he suffers from any incapacity of if he refuses or omits or is unable to plead, or desires that the inquiry should be made. Rule 8 deals with the non-appearance of the judge and prescribes:

"If the judge does not appear, on proof of service on him of the notice referred to in rule 5, or, upon publication of such notice, the Inquiry Committee may proceed with the inquiry in the absence of the judge."

Rule 9 deals with the further procedure to be followed by the Committee in regard to the report of the inquiry. Rule 10 deals with the recording of evidence. Rule 11 deals with the facilities to be accorded to the judge for hi defence. The rest of the rules are not relevant for the purpose of the present inquiry.

So, we see that in the matter of conditions of service and removal from office, judges of the Supreme Court and the High Courts hold a special position under the Constitution. On the one hand the tenure and the conditions of service of judges of the Supreme Court and the High Courts are guaranteed by the Constitution and they cannot be removed from office except in the manner provided by the Constitution. On the other hand, every other civil servants barring the Comptroller and Auditor General of India, the Chief Election Commissioner and the members of the Public Service Commission, broadly, hold offices in terms of the law enacted by Parliament or by the appropriate legislature and in the absence of such law, in terms of the rules made by the President or the Governor, as the case may be, under the proviso to Article 309 of the Constitution, and, of course, subject to the rights given by Article 311 not to be dismissed or removed by an authority subordinate to the authority that appointed him and not to be dismissed or removed or educe in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Why are the judges placed in this privileged position, as it were and why is this special immunity given to them? The reason is obvious. The people, of India, speaking through the Founding Fathers of the Constitution, considered that for a proper and effective functioning of the apparatus of the State in a truly democratic fashion, it was a matter of fundamental importance and compelling necessity that the judiciary should be  free and independent and removed from the shadow of the legislative and executive wings of the State. The Founding Fathers invested vast powers in the judiciary which they considered indispensable if the State was to remain democratic instead of totalitarian, if the citizen was to be protected against authoritarian rule and against the infringement of the Fundamental Rights guaranteed to him by the Constitution, and if the people were to achieve the goals set forth in the preamble to the Constitution in a democratic fashion. The Supreme Court is invested with the power to issue writs or directions or orders in the nature of habeas corpus, mandamus, prohibition, quo-warrant and certiorari for the enforcement of the Fundamental Rights (Article 32) and for any other purpose (Article 139). The Supreme Court is specially entrusted with the power to enforce the Fundamental Rights guaranteed by the Constitution by making the right itself a Fundamental Right (Article 32). The Supreme Court is empowered in its discretion to grant special leave to appeal against any judgment, decree, determination, sentence or order in any case or matter passed or made by any Court or Tribunal in the territory of India (Article 136). The Supreme Court is also empowered to pass such decree, or make such order, as is necessary for doing complete justice in a matter pending before it (Article 142). The President can consult the Supreme Court and seek the Courts opinion if any question of law or fact has arisen or is likely to arise which is of a such nature and of such public importance, that the President considers it expedient to obtain the opinion of the Supreme Court (Article 143). The law declared by the Supreme Court is binding on all courts whit in the territory of India (article 141) and all authorities, civil and judicial in the territory of India re enjoined to actinide of the Supreme Court (Article 144). Truly it may be said perhaps that the Supreme Court of India is a Court which is second to none in the democratic world governed by the Rule of Law. The High Courts are also invested with the jurisdiction to issue to any person or authority including the Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warrant, certiorari or any of them for the enforcement of the Fundamental Rights or for any other purpose. These writs etc. may be issued to any person or authority including the Government (Article 226). Further, the high Courts also have general powers of superintendence over all Courts and Tribunals within their territorial jurisdiction (Article 277). Besides, both the Supreme Court and the High Courts have been declared to be the Courts of record with power to punish for contempt (Articles 129 and 215).

Such indeed was the great faith and confidence reposed by the Founding Fathers of the Constitution in the Supreme Court and the High Courts that their judges were given fixity of tenure, guarantee of conditions of service and immunity from removal from removal from the office except by following the cumbersome procedure enjoined by Articles 124(4) and (5) and the law enacted pursuant to the Constitutional directive in Article 124(5). It was in this fashion that the framers of the Constitution thought fit to secure the independence of the judiciary.

In interpreting Articles 124(4) and (5) and the provisions of the judges (Inquiry) Act and in considering any question related to the removal of a judge from office, it should never before gotten that it was to secure to the people of India fearless and independent judiciary that the judges of the superior Courts were accorded a special position in the Constitution and granted immunity from removal from office except by the process of impeachment. It may be noted that the word "impeachment" is not used in Articles 124 (4) and (5) but we have borrowed the word from other jurisdictions to describe the process of removal of a judge from office prescribed by Articles 124(4) and (5). The very vastness of the powers vested in the judiciary and the very immunity granted to them require on the one hand that judges should be fearless and independent and, on the other, that they should adopt a high standard or rectitude so as to inspire confidence in the public who may seek and who may want to seek redress in the Court. While it is necessary to protect the judges from motivated and malicious attacks, it is also necessary to protect the fair image of the institution of the judiciary from those judges who choose to conduct themselves in a manner as to blur that image.

Having noted the privileged position of judges in the constitutional structure, we may now proceed to consider what the expression "proved misbehavior" means. The word "misbehavior" is not defined in the Constitution and rightly so because it was obviously thought undesirable to confine it to a strait-jacket formula. It is an expression, which has to respond to the "felt necessities" of the situation. It is no doubt antithetical to good behavior. Indeed, the expression "misbehavior" is not a stranger to statute law in India. we come across the word "misbehavior" as far back as 1850 in the Public Servants (Inquiries) Act, 1850. Section 2 of which provides for the ordering of a formal and public inquiry if the Government is of the opinion that there are good grounds for making such inquiry into the truth of any imputation of misbehavior by any person in the service of the Government. In the case of R. P. Kapur vs. Pratap Singh Kairon, (1964) 4 S.C.R. 204, the Supreme Court of India considered the argument that the word "misbehavior" in section 2 of the Public Servants (Inquiries) Act was vague and consequently the Act was unconstitutional. They repelled the argument and held:

"Misbehavior’ by a government servant would certainly mean a lapse by him from the proper standard of conduct in the discharge of his functions as a government servant; but the appellant argues that there was  at the date of the Act in 1850 no ascertainable standard of conduct and so neither the government nor its servants could know for certain what would amount to ‘misbehavior’. This argument seems to us to be misconceived. Even in the absence of any detailed instructions or directions as to how a government servant should act and conduct himself there could never be any manner of doubt that a government servant was expected and required to act honestly and not to use his position as a government servant for enriching himself or others. Every dishonest act of a government servant, including acts by which he uses his position for enriching himself or others would clearly amount of ‘misbehavior’. We are unable therefore to accept the appellant’s argument that the word ‘misbehavior’ as used in Sec. 2 of the Inquiries Act is vague.

"It may be pointed cut in this connection that even if the appellant is correct in his argument that at the date of the Act in 1850 no ascertainable standard of conduct for government servants had been laid down this argument is not available to him after such standard was clearly laid down in the numerous Government Servants’ Conduct Rules. So far as the appellant himself is concerned he was at the date of the order made by Government in 1961 governed by the All India Services Conduct Rules, 1954. The attack on the validity of the Inquiries Act on the ground that the word ‘misbehavior’ is vague must therefore fail."

That case had come up before the Supreme Court in Appeal from a judgement of the Punjab High Court reported in 1961 (63) Punjab Law Reported 280 in which Justice Grover speaking for himself and Chief Justice Khosla had observed:

"The word ‘misbehaviour’ when employed in respect of holders of high offices has a well-understood and well-defined meaning according to the tradition and standards maintained by the members of a particular service or office."

In C. K. Daphtri vs. O. P. Gupta, AIR 1971 SC 1132, the Supreme Court appeared to think that the errors committed by a judge, even gross errors, cannot amount to misbehavior.

The word with which the civil servants in India are more familiar is "misconduct", a kinsman of "misbehavior." The word :misconduct" may appear to be stronger and narrower than the word "misbehavior" and it involves a higher degree of culpability. We do not, however desire to chase after the meaning of the word "misconduct" and proceed from there to discover the meaning of the word "misconduct" and proceed from there to discover the meaning of the word "misbehavior". We would rather try to discover the meaning of the word "misbehavior" itself. However, we may mention in passing that the word "misconduct" received judicial consideration in Union of India vs. J. Ahmed, AIR 1979 S. C. 102 and in the matter of Maqbool Ali Khan, AIR 1958 Andhra Pradesh 116 (Full Bench) etc. In J. Ahmed’s case, the Supreme Court after referring to the code of conduct under the all India Services (Conduct) Rules proceeded to state that the code of conduct was not exhaustive and that act or omissions other than those inhibited by the rules may well constitute misconduct. They also held that means area was not an essential misconduct, repeated acts may constitute misconduct. In Maqbool Ali Khan’s case, a Full Bench of the Andhra Pradesh High Court pointed out that both in law and in ordinary speech, misconduct implied an act done, willfully with a wrong intention even if the act was not inherently wrongful. In another case, the High Court of Punjab held that misconduct was a generic term meaning wrong or improper conduct, misbehavior, unlawful behavior and conduct, and it did not necessarily imply corruption (AIR 1966 Punjab 175). In Madhav Singh Vs. State of Bombay, AIR 1960 Bombay 285, and Sharada Prasad vs. Divisional Superintendent, Central Railway, AIR 1961 Bombay 150, the High Court of Bombay held that misconduct need not be confined to acts and omissions in the matter of employment and it may also be outside the course of employment.

In the case of alleged misbehavior of Justice Murphy of the High Court of Australia, the Senate obtained the opinions of Dr. Griffith, Solicitor-General of the Commonwealth and of Mr. C. W. Pincus Q. C. President, Law Council of Australia. These opinions appear to have become quite celebrated and are quoted frequently. Relying upon Todd’s "Parliamentary Government in England" and Quick and Garran’s "Annotated Constitution of Australian Commonwealth," Dr. Griffith stated:

Misbehavior is defined as breach of condition to hold office during good behavior. It is not limited to conviction in a court of law. A matter pertaining to office or a breach of the general law of the requisite seriousness in a matter not pertaining to office may be found by proof, in appropriate manner, to the Parliament in proceedings where the offender has been given proper notice and opportunity to defend himself ".

Mr. Pincus, however, thought that the simple word "misbehavior" was used not to suggest the proof of an offence. He expressed his agreement with what was stated by Wrisley Brown in an article in Vol. XXVI Harvard Law Review at p. 684 and further observed:

It is remedial, but not vindictive. The safeguard of the State is its principal object, and the punishment of the individual is left exclusively to the courts of judicature. It is a disciplinary rather than a penal measure."

The author then proceeded to consider some of the cases of impeachment, which had arisen in the United States. In particular he referred to Archabald’s case (48 Congressional Record, 9051). Article thirteen of the charges against judge Archibald was in the nature of "blanket count, charging a general course of misconduct which embodies all the various acts alleged in the other articles." The judge was convicted of article thirteen among other articles, and the author considered it:

"…… fair to conclude from the vote on the thirteenth article that judges are impeachable for a general course of misbehavior embracing a series of acts that are subversive of judicial probity or propriety chiefly because of the persistency with which they are committed. This is not to be understood as a holding that many legal naught may, collectively, become a legal unit, but, rather, that a continuation of transactions which are not seriously irregular when standing alone may become component elements of a system of misconduct sufficient to support an impeachment."

The author then pointed out that none of the articles exhibited against judge Arch bald charged an indictable offence or even a violation of positive law. Indeed, he said, most of the specific acts proved in evidence were not intrinsically wrong, and would have been blameless if committed by a private citizen. The author finally concluded his article with an appreciation of impeachment as a measure of achieving judicial discipline and said:

Mr. F. S. Nariman to whom we owe a deep debt of gratitude for his well-researched presentation of the constitutional and legal aspects, drew our attention, apart from the opinion of Dr. Griffith and Mr. Pincus and the monograph of Wristley Brown, to several cases and text books.

We will refer to a few of these cases which we consider are useful and informative.

"The degree of proof required to discipline a judge is analogous to the required in disciplining an attorney. This degree of proof must be ‘clear and convincing’. There must be more than a ‘preponderance of the evidence’, but the proof need not be ‘beyond and to the exclusion of a reasonable doubt’ Zachary v. State, 53 Fla. 94 43 So. 925 (1907) where this court reversed a judgment of disablement entered by a circuit court: state excel. Florida Bar v. Bass, 106 So. 2d 77 (Fla. 1958); Florida Bar v. Rayman, 238 So. 2d 594 (Fla. 1970)".

Canon 2, of the Code of Judicial conduct, to which the Commission made a reference contains some general principles, which may be usefully extracted here. They are:

"A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as character witness".

Judge La Motte’s case establishes that monetary recompense does not necessarily "cure" unlawful financial gain and is not sufficient to obliterate "misbehavior".

In the case of Judge Harry E. Claiborne (Report 99-688, 99^th Congress 2^nd Session), the allegation against the judge was that he had filed a false return of Income Tax. The Committee on the Judiciary who reported the case observed that good behavior expected of a judge, a high standard of public and private rectitude. Those entrusted with the duties of judicial office had the high responsibility of ensuring the fair and impartial administration of justice, which in large part rested on the public confidence in it and respect for the judicial process. Erosion of that confidence by irresponsible, improper or unlawful conduct by judges violated the public trust and must not go unchecked by the congress whose constitutional duty was to redress instances of judicial misbehavior. The committee pointed out that judge Claiborne had taken an oath like all Federal judges and Justices, faithfully and impartially to discharge and perform all the duties incumbent on him. Implicit in the oath was the requirement that Federal judges and Justices must uphold and obey the constitution and laws of the United States.

In the case of Walter L. Nixon, Jr., a judge of the United States District Court for the Southern District of Mississippi (Report 101-36 of 101^st Congress 1^st Session) the question was whether the judge could be impeached for lying to federal investigators and giving false testimony under oath to a Federal grand jury. The facts alleged had nothing to do with the performance of any judicial functions by Judge Nixon. Even so, the Committee on Judiciary found him guilty of an impeachable offence. After referring to several other impeachment cases, they said:

"Thus from an historical perspective the question of what conduct by a Federal judge constitutes an impeachable offence has evolved to the position where the focus in now on public confidence in the integrity and impartiality of the judiciary. When a judge’s conduct calls into question his or her integrity or impartiality, Congress must consider whether impeachment and removal of the judge from office is necessary to protect the integrity of the judicial branch and uphold the public trust".

The Committee in conclusion observed that the impeachment process protected society by ensuring that those favored with high positions of public trust were held accountable for their actions. Federal judges enjoyed life tenure in office and that insulated them from political pressure. That, however, did not permit abuse of office.

In the case of Judge Alcee L. Hastings (Report 100-810,110^th Congress 2^nd Session), the Committee on Judiciary noted that historical antecedents of the impeachment process were rooted in hundreds of years of English and American experience and that impeachment was the ultimate means of preserving the constitutional form of government from the depredations of those in high office who abuse or violate the public trust . Quoting Alaxander Hamiltion who characterized impeachment "as a method of National Inquest into the conduct of public men", the Committee went on to observe that the impeachment process sought to protect the institutions of government by providing for the removal of persons who are unfit to hold positions of public trust.

The case of Richard A.Napolitano (317 F. Supp.79(1970)) is another useful case on the question of the conduct of a judge during the course of the inquiry. The judge, whose removal from the office of Cook Country Circuit judge had been ordered by Illinois Courts Commission moved the United Stated District Court, Illinois, to challenge his removal on the ground that it violated the Fifth Amendment because the charge was based on the exercise of his privilege against self-incrimination. The court while rejecting his contention, made the following observations:

"The spectacle of judge invoking the Fifth Amendment is not a pretty one, for a judge owes an obligation to cooperate in promoting enforcement of the law. Unwillingness to fulfil that duty, as shown by reluctance to aid in a grand jury investigation of suspected criminal activity, may properly be considered to be evidence of a disregard for this obligation. See In Re. Sarisohn, 27 A.D. 2d 466, 280 N.Y.S. 2d 237 247 (1967), rev’d. on other grounds, 21N.Y.2d 36,286 N.Y.S 2d 255, 233 N.E. 2d 276, holding that a judge’s refusal to answer questions at a removal proceeding constitutes causes for removal".

While we are not sure that refusal to answer questions in a removal or other proceeding or seeking constitutional protection for such refusal may by itself constitute a ground for removal, the least that can be said is that a judge against whom an inquiry is made is under an obligation to cooperate and not to raise petty-fogging objections to obstruct the inquiry.

We may in this connection with advantage refer to the case of Stephens Chandler vs. Judicial Council of the 10^th Circuit of the United States (398 US 74) where the Supreme Court of the United Stated denied the motion of Stephen Chandler, the chief Judge of a United States District Court, for a mandamus against the Judicial Council. Stephen Chandler without ever appearing before the Judicial Council which he had the right ad opportunity to do, directly approached the Supreme Court for a mandamus. He gave as a reason that he was unwilling to "attend a hearing conducted by a body whose jurisdiction he challenged". The United States Supreme Court denied the motion observing:

"….. parenthetically it might be noted that Clandler might have appeared in person, or by Counsel and challenged the jurisdiction of the Council without impairing his claim that it had no power in the matter".

There is a very useful discussion of the question of misconduct of judges and standard of proof in an article in the Chicago Kent Law Review by Chief Justice Ben F.Overton of the Supreme Court of Florida. He states that a Judicial Disciplinary Commission has the responsibility to enquire, when a judicial officer-

Dealing with the question of misconduct in office and the standard of proof, he says:

" ‘Willful misconduct in office’ normally refers to cases where a judge has acted in bad faith while acting in his judicial capacity. ‘Conduct prejudicial to the administration of justice’ refers to conduct that detracts from the public esteem in which the judicial office is held by reason of misconduct not related to the judge’s official duties. Ordinarily, the ground which constitutes ‘conduct prejudicial to the administration of justice’, or conduct ‘that brings the judicial office into disrepute’ is considered to be a lesser offence than the charge of ‘willful misconduct in office’.

"There are numerous examples of conduct which would constitute misconduct in office if committed by a judge which would not be considered proper subjects for disciplinary action if committed by legislative or executive officers.

"The standard of proof which is used by most commissions in finding judicial misconduct and by State Supreme Courts in their independent review of the evidence before the commission, is that the evidence of misconduct must be ‘clear and convincing’. Other courts, however, have concluded that the findings of the commission need be established only by a preponderance of the evidence’.

So it is not merely when a judge acts in bad faith while acting in his judicial capacity but even when he misconduct himself in matters unrelated to his official duties so as to lower the public esteem of his judicial office, that a judge may be guilty of an impeachable to offence.

The standard of conduct required of a judge is higher than that of others and what may be permissible in others may not be permissible in a judge. The report of the Federal Court of India on the charges against Justice S.P.Sinha of the Allahabad High Court which led to his removal:
The judges of the Federal Court found that charge No.1 against the judge were established in respect of the judge’s decision and conduct in connection with two cases referred to as the Padranna case and Murarilal’s case and that although only two instances of judicial misbehavior during a career of four years as a judge had been proved, " they are of such a nature that his continuance in office will be prejudicial to the administration of justice and to the public interest

We may wind up the discussion on the question of "misbehavior" with a reference to the report of the Federal Court of India on the charges against Justice S.P.Sinha of the Allahabad High Court which led to his removal. The judges of the Federal Court were required to inquire into the charges against Justice Sinha under the Government of India Act, 1935 as adapted by the India (Provisional Constitution) Order, 1947 and the India (Provisional Constitution) Amendment Order, 1948. The judges of the Federal Court found that charge No.1 against the judge were established in respect of the judge’s decision and conduct in connection with two cases referred to as the Padranna case and Murarilal’s case and that although only two instances of judicial misbehavior during a career of four years as a judge had been proved, " they are of such a nature that his continuance in office will be prejudicial to the administration of justice and to the public interest". The removal of the judge from office was advised and accordingly the governor-general removed Justice Shiva Prasad Sinha from his office as a judge of the High Court of Allahabad. Copies of the Report of the Federal Court to the governor-general of India and the Governor Sinha from office are annexed hereto as Annexures ‘F’ and ‘G’. It appears, therefore, that deviation from the path of rectitude that would justify the removal of the judge from his office on the ground of judicial misbehavior should be such as would make his continuance in office prejudicial to the administration of justice and to the public interest.

The meaning of the word "proved" before the expression "misbehavior or incapacity" in clause (4) of Article 124 fell for consideration before the Supreme Court in Sub-Committee on Judicial Accountability vs. Union of India, (1991) 4 Supreme Court cases 699. It was there observed.

"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 misbehavior’ while in clause (4) of Article 124, it is, ‘the ground of proved misbehavior of 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 the Parliament under clause(5) of Article 124. In view of the fact that the adjudication of the ground of misbehavior 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 reinforced by the addition of the word ‘proved’ in Article 124(4) and the requirement of law for this purpose under Article 124(5)".

One of the questions which has also to be considered by us in whether a judge of the Supreme Court can be removed for acts or omissions as judge of the High Court. It was suggested in one of the letters of Justice Ramaswami to the Committee that the Government of India must have enquired into his conduct as a judge of the High Court and cleared him before he was appointed to the Supreme Court. This has only to be stated to be rejected. The appointing authority does not clear a person of misbehavior nor can it grant immunity in respect of acts done prior to appointment to the Supreme Court . In fact, facts may come to light only after appointment to the Supreme Court and no one can claim immunity on the ground that the appointment authority must be deemed to have cleared him. There is nothing on record to show that in the present case allegations which are the subject matter of investigation by this Committee. This contention, therefore, has no foundation either in law or facts.

Apart from the aforementioned aspect Article 124(4) of the Constitution cannot be interpreted as to confine it to the proved misbehavior as a judge of the Supreme Court. Such an interpretation would not only be not purposive but would also be destructive of the purpose and reduce the Article to an absurdity. It would lead to this absurdity that while a judge of the High Court, if he continues to be a judge of the High Court, may be removed from office for misbehavior, he cannot be removed if he is appointed to the Supreme Court. In other words, he may not be a fit person to continue as a judge of the High Court, but is good enough, to be a judge of the Supreme Court. Such an interpretation grant a blank immunity to all acts of the misbehavior prior to the appointment to the Supreme Court. It is worthy of note that Article 124 mentions as a ground for removal from office "proved misbehavior" and not "proved misbehavior in office’. It is, therefore, not confined to judicial acts of the judge while in office as a judge of the Supreme Court but includes also acts other than judicial acts and acts before appointment as a judge of the Supreme Court, all of which acts amount to misbehavior. It should further be remembered that judges of the Supreme Court are, in the main, drawn from judges of the High Courts and that the offices of the judges of the Supreme Court and the High Courts are of the same generic character. Therefore, it could never have been intended that a person, who is fit to be removed from the office of the judge of a High Court, gains immunity on appointment to the Supreme Court and he may continue as a judge of the Supreme Court despite detection of deeds of misbehavior. Nor is there anything in principle against giving a purposive interpretation to Article 124(4). In all jurisdictions elsewhere, where judges are removable by impeachment, it is well settled that acts complained of need not be acts connected with the Judge’s judicial work but may well be acts outside his judicial work but may well be acts outside his judicial duties. If that be so, there is no reason why the acts complained of, should be confined to the period after his appointment as a judge and not before when he had held other judicial office. This position also appears to be well settled. In the matter of proceedings against judge Floyd Sarishon, 21 New York Reports, 2d Series, page 36, a judge of the Country District Court was removed from office on the ground of his misbehavior as a Justice of the Peace. There are other cases also.

( See 53 American Law Reports 882 at page 930). We are, therefore, of the view that on principle, and join an interpretation of Articles 124(4) and (5), a judge of the Supreme Court may be removed from office on the ground of proved misbehavior while he was judge of High Court. The word "misbehavior" is not limited to misbehavior in the office presently held but may in appropriate case extend to misbehavior in earlier judicial office.

We may also refer to the case of Govinda Menon vs. Union of India, AIR 1967 SC 1274. A member of the Indian Administrative Service who was working as Member of the Board Of Revenue also held the statutory post of commissioner of Endowments under the Hindu Religious and Charitable Endowments Act. On account of some alleged misconduct in the performance of his statutory duty under the Hindu Religious and Charitable Endowments Act, he was suspended from service and disciplinary proceedings under the All India Services (Disciplinary and Appeal) Rules were instituted against him. He raised an objection contending that the disciplinary proceedings against him as a Member of the Indian Administrative Service were incompetent in respect of his acts or omissions while performing statutory functions under the Hindu Religious and Charitable Endowments Act. The Supreme Court overruled his objection holding that the rules did not say that the disciplinary proceedings were competent only in respect of acts or omissions committed in the discharge of duties or in the course of employment as a Government servant. It was open to the Government to take disciplinary proceeding against the officer, in respect of his acts or omissions, which constitute a reflection upon his reputation for integrity of good faith or devotion to duty as a member of the Service. The Court said:

"In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is nor reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to any activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission had some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subjected to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the Service".

One submission suggested in favor of Justice Ramaswami was that unlike the Chief Justice of a High Court, a judge of the Supreme Court has no duty to perform involving the administration of funds and, therefore, any acts or omissions, of which he may be considered guilty in regard to administering funds in his charge when in the High Court, need not be treated as misbehavior disentitling him to continue as a judge of the Supreme Court since he is no longer occupying the position where he has to adminser funds. This appears to us to be a wholly unsustainable submission. What the submission really means is that once the Chief Justice of a High Court is elevated to the Supreme Court he will have no opportunity to deal with funds and so why worry about what he did when he had the opportunity. The points is not that at all. What the Constitution and the Judges (inquiry) Act are concerned with is whether the judge is guilty of such acts of misbehavior as may render his continuance in office prejudicial to the administration of justice and the public interest; whether he may or may not have an opportunity late no indulge in a particular type of misbehavior is irrelevant.

One of the questions mooted was whether there could be any misbehavior institutions where monetary recompense would effectively set matters right. Mr Nariman suggested that where monetary recompense is possible and there may not be dishonest intention, there is no misbehavior. We are inclined to agree broadly but we would hasten to add that mere monetary recompense is not enough if the person intentionally committed serious and grievous wrongs of a clearly unredeeming nature and offered recompense only when discovered. In such a situation, dishonest intention cannot be ruled out when the act was committed. It must be borne in mind that acts of criminal misappropriation and criminal breach of trust under the Indian Penal Code are generally capable of being compensated in terms of money but monetary recompense has never been accepted as a defence to a prosecution for criminal misappropriation or criminal breach of trust. The illustration to Section 403, Indian Penal Code, makes it clear that temporary misappropriation is also criminal misappropriation.

There is then the question of standard of proof which we think should not present us with any great difficulty. It is true that in some of the Australian and American precedents, the Tribunals enquiring into the conduct of judges have refused to adopt the yardstick of proof beyond reasonable doubt applied in criminal cases. For example, the Commission of Inquiry headed by Sir Harry Talbot Gibbs (former Chief Justice of Australia) enquiring into the charges against Mr.Justice Angelo Vasta, a judge of the Supreme Court of Queensland, held that the proceedings before the commission were not criminal proceedings, the Commissioners were not required to determine the criminality of the judge’s behavior to observe that the degree of satisfaction must, of course, vary according to the gravity of the fact to be proved.

In America, "clear and convincing proof" is required. We have already quoted from the article of Chief Justice Overton of the Supreme Court of Florida in Chicago-Kent Law Review (supra) and from the proceedings of the Supreme Court of Florida in La Motte’s case (supra) and convincing proof "was explained as something more that a preponderance of the evidence but not proof beyond and to the exclusion of a reasonable doubt". Elsewhere it has been said that "clear and convincing" evidence means that measure or degree of proof which will produce in the mind of trier of facts, a firm belief of conviction as to the allegation sought to be assessed. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal".

We think that the concept of clear and convincing evidence, delectable though it may be, introduces needless sophistication and refinement. The impeachment proceeding is, in the strict sense, sui generis, neither civil nor criminal in nature. The gravity of the charge against a judge of the Supreme Court or a High Court, the uniqueness of impeachment proceedings, and the forbidding consequence if the charges are held proved, make it practical, sage and necessary to insist upon a high degree of proof. That degree of proof is, in our view, proof beyond reasonable doubt without any further refinement. The Constitution, the judges (Inquiry) Act and the Judges (Inquiry) Rules, gives us an indication, however slight it maybe, that an inquiry under the Act is thought to share the nature of quasi criminal proceedings. The word "investigation" usually associated with criminal cases is used both in Article 124(4) of the Constitution and the judges (Inquiry) Act. The Committee is required by Section 3(3) of the Act to frame definite ‘Charges’ against the judge on the basis of which the investigation is proposed to be held. Section 6 uses the words ‘guilt