IN THE SUPREME COURT OF INDIA
Justice. J.S. Verma, Justice. N.M. Kasliwal, Justice.K. Ramaswamy, Justice.K. Jayachandra Reddy & Justice S.C. Agrawal.
Writ Petition (Civil) Nos. 149 & 140 of 1992. D/d.
Versus
Reported in. (1992)2 SCC 341 = AIR 1993 SC 1407 = 1992 (2) SCALE 311 = 1992 (2) JT 63.
JUDGMENT
J.S. Verma, J. - Both these writ petitions under Article 32 of the Constitution were heard together and are disposed of by this common judgment since they involve for decision substantially the same points. In Writ Petition No. 149 of 1992, the petitioner M. Krishna Swami is a member of the Tenth Lok Sabha from Tamil Nadu while in Writ Petition No. 140 of 1992, the petitioner Raj Kanwar is an advocate of District Karnal in Haryana. Both these petitions are stated to have been filed in public interest and relate to the proceedings for the removal from office of Mr. Justice V. Ramaswami of the Supreme Court of India initiated by the notice of motion given to the Speaker by 108 members of the Ninth Lok Sabha. It is unnecessary to state further facts herein and it would suffice to say that both these petitions are a sequel to the decision in Sub-Committee on Judicial Accountability v. Union of India and Others - (1991) 4 SCC 699 - and - and were filed prior to Writ Petition No. 514 of 1992 - Mrs. Sarojini Ramaswami v. Union of India & Ors. - which has been disposed of by us earlier today by a separate judgment pronounced therein giving all relevant facts.
2. Petitioner Raj Kanwar (in Writ Petition No. 140 of 1992) alleges that notice of motion by 108 members of the Ninth Lok Sabha, its admission by the then Speaker of Lok Sabha and constitution of the Inquiry Committee under Section 3(2) of the Judges (Inquiry) Act, 1968 are unconstitutional being violative of Article 124(4) of the Constitution. It is also asserted in that Writ Petition that the judgment in Sub-Committee of Judicial Accountability is violative of Article 145(3) of the Constitution and hence void ab- initio. On this basis, the relief sought in Writ Petition No. 140 of 1992 is as under:-
"(a) issue appropriate writ, order or direction quashing.
(1) the notice of motion for presentation of an address to the President for the removal of Mr. Justice V. Ramaswami of Supreme Court of India;
(2) its admission by the then Speaker of Lok Sabha; and
(3) the formation of the Inquiry Committee under the Judges (Inquiry) Act, 1968 as being void ab-initio."
3. In Writ Petition No. 149 of 1992, the petitioner M. Krishna Swami claims sufficient interest to file the writ petition as a member of the Tenth Lok Sabha and as an advocate of Madras Known to Mr. Justice V. Ramaswami for long. In this petition, it is alleged that certain illegalities in the procedure adopted by the Inquiry Committee prejudicial to Mr. Justice V. Ramaswami have rendered the inquiry invalid. On the basis of the illegalities in procedure, alleged in the petition, the relief sought is for quashing the proceedings of the Committee as invalid. This is the alternative prayer in the petition while the primary relief claimed in the petition is substantially the same as in the other petition to quash the notice of motion admitted by the Speaker of the Ninth Lok Sabha and the charges framed by the Committee against Mr Justice V. Ramaswami. Another prayer made to hold that the Inquiry Committee is disqualified to conduct the inquiry was given up at the hearing by Shri Sibal accepting the position that the allegation of bias against the Committee could be examined only at the instance of Mr. Justice V. Ramaswami who is not even a party in either of these writ petitions. In substance, the primary relief claimed in both these two writ petitions is for reconsideration of the earlier Constitution Bench decision in Sub-Committee on Judicial Accountability and for accepting the view expressly rejected in the majority opinion therein. In Writ Petition No. 149 of 1992, the alternative prayer for quashing the proceedings of the Inquiry Committee on the ground of illegality in the procedure adopted by it for conducting the inquiry is alleged to be based on the decision in Sub-Committee on Judicial Accountability which held that the proceeding relating to inquiry conducted by the Committee is statutory in nature subject to judicial review.
4. Subsequently, on the conclusion for the investigation by the Inquiry Committee, Smt. Sarojini Ramaswami, wife of Mr. Justice V. Ramaswami, filed Writ Petition No. 514 of 1992 praying for a direction to the Inquiry Committee to supply a copy of its report of Mr. Justice V. Ramaswami before submitting it to the Speaker under Section 4(2) of the Judges (Inquiry) Act, 1968 to enable the learned Judge to seek judicial review of the finding of 'guilty', if any, against him made in the report of the Committee. We have disposed of that writ petition by a separate judgment pronounced earlier today. We are, therefore confining the decision of these petitions only to the points raised herein which survive for decision.
5. We had concluded the hearing of these writ petitions before the hearing was commenced in Writ Petition No 514 of 1992, but at the request of Shri Kapil Sibal, senior counsel appearing for the petitioner in Writ Petition No. 149 as well as in Writ Petition No. 514, we deferred the decision in these writ petitions till now. In Writ Petition No. 149, we have heard Shri Kapil Sibal for the petitioner, the Attorney General of India for the Union of India and Shri F.S. Nariman for the Inquiry Committee. In addition, we have also heard Shri Shanti Bhushan and Shri Jitendra Sharma who represented the interveners viz. Sub-Committee on Judicial Accountability and Supreme Court Bar Association. Raj Kanwar, petitioner in Writ Petition No. 140 of 1992 was directed to file the written submissions which have been considered it unnecessary to hear petitioner Raj Kanwar orally also in addition to his written submissions since his case is the same which was urged by Shri Kapil Sibal as one of his contention and to some extent advanced also by the Attorney General of India. The constraint of time because of which the hearing in these matters was required to be concluded early impelled us to adopt this course, particularly on account of the fact that Writ Petition No. 140 of 1992 was tagged on to Writ Petition No. 149 of 1992 to be heard alongwith Writ Petition No. 149 of 1992 which was treated as the main matter by Order dated 23.3.1992.
6. It may now be mentioned that Writ Petition No. 149 of 1992 came up for hearing first before a Division Bench of three learned Judges which by its order dated 27.2.1992 on hearing Shri Kapil Sibal for the petitioner mentioned his contention and directed as under:-
"Having regard to the importance of the questions raised in the petition, we direct the Registry to place the papers before the learned Chief Justice of India for constituting a Constitution Bench to hear this petition".
These contentions were mainly for reconsideration of the earlier Constitution Bench decision in Sub-Committee on Judicial Accountability. This order is reported in JT 1992(2)SC 63. This is how this petition came to be listed before a Constitution Bench for being heard by us. The order in Writ Petition No. 140 of 1992 for tagging with Writ Petition No. 149 of 1992 was made thereafter on 23.3.1992 because of the identity of subject matter of the two petitions.
7. When the hearing commenced before us, the question of maintainability of these writ petitions for the reliefs claimed herein in the absence of Mr. Justice V. Ramaswami and tenability of the plea of reconsideration of the earlier decision at the instance of these petitioners who were not parties thereto and are not directly affected thereby arose for consideration. On 6.5.1992 after Shri Kapil Sibal, learned senior counsel for the petitioner had been heard for some time on the preliminary question relating to maintainability for the petition, he sought time `to consider further whether the petitioner should move an application for impleading Mr Justine V. Ramaswami as a party.' The matters were adjourned to the next day at the request of Shri Sibal. On 7.5.1992, Shri Sibal informed us that the petitioner does not want to implead Mr Justice V. Ramaswami as a party and that he had decided to pursue the writ petition as framed in its present form. In the other writ petition (W.P. No. 140) also, Mr. Justice V. Ramaswami is not a party and the petitioner's stand is the same; and, therefore, the question of maintainability of these writ petitions for the reliefs claimed herein in the absence of Mr. Justice V. Ramaswami as party is common to both of them. These matters were, therefore, heard on the question of maintainability indicating that in case these petitions are held to be maintainable for the reliefs claimed herein in the absence of Mr. Justice V. Ramaswami as a party, then the matters may be heard further on merits.
8. We have reached the conclusion that both these petitions must be dismissed on this preliminary ground and, therefore, the question of hearing these petitions further does not arise.
9. In view of the fact that the petitioners in both these writ petitions have persisted in pursuing the writ petitions without impleading Mr. Justice V. Ramaswami as a party, in spite of ample opportunity given by us for the purpose at the commencement of the hearing and even thereafter till its conclusion, there is now no question of giving any further opportunity to the petitioners for this purpose. Shri Sibal took the definite stand on instructions of the petitioner that Mr. Justice V. Ramaswami would not be impleaded as a party in the writ petition and that the Court itself may give him notice if it so desires. We do not find any reason why the Court should suo motu issue notice to Mr. Justice V. Ramaswami when the petitioner persisted in not impleading him even though the reliefs claimed are for the benefit of the learned Judge alone. Even otherwise we do not consider it appropriate to examine any of the questions raised in these petitions at the instance of these petitioners in view of our decision in Writ Petition No. 514 of 1992, the learned Judge himself having not chosen to do so.
10. There can be no doubt and it is rightly not disputed that the decision on merits of the points raised in these writ petitions, assuming they could be considered and decided on merits in these circumstances, would directly affect the interest of Mr. Justice V. Ramaswami in the proceedings for his removal from office which he is facing. In case the decision on merits is adverse to the interest of Mr. Justice V. Ramaswami, it would be open to him to contend that he is not bound by the decision to which he is not a party irrespective of the merit of that contention. Moreover, there appears to be no cogent reason to examine the merits of the points raised in the petitions professedly for the benefit of Mr. Justice V. Ramaswami when the learned Judge himself has not chosen to raise the same.
11. It was strenuously urged by Shri Sibal, supported by the learned Attorney General, as well as the petitioner Raj Kanwar that declaration of law on the subject can be made in the absence of the learned Judge as a party with which declaration he would be bound; and that in view of the high office held by the learned Judge, it was consistent with the dignity of that office that he should not be a petitioner or even a party in a case filed in the Court in which he himself is a Judge. We are unable to appreciate or accept this argument.
12. The points raised in these petitions in the context of clauses (4) and (5) of Article 124 of the Constitution and the law enacted under Article 124(5) are bound to arise only in the context of a holder of the high office of a Judge of the Supreme Court or a High Court and at a time when he faces proceedings for his removal so that the decision thereon is bound to affect the interest of the concerned Judge. If the occasion for requiring a judicial adjudication arises in this context at a time when a particular Judge is facing proceedings for his removal from office as in the present case, the reason advanced by learned counsel for not even impleading him as a party in the petition appears to be tenuous. Anyone facing such a proceeding and wanting to challenge it has to do it himself. It is not possible to predict the outcome of the decision on merits of the points raised in these petitions and, therefore, the likelihood of a conclusion adverse to the interest of the learned Judge being a possibility, an effective adjudication of the same in his absence is not feasible which alone is a sufficient reason to decline consideration of the points raised in the petitions in these circumstances. We may mention that the learned Judge was a party in the earlier proceedings. Sub-Committee on Judicial Accountability v. Union of India and others, (1991) 4 SCC 699.
13. Shri Sibal submitted that the order dated 27.2.1992 by a Division Bench directing that the papers be placed before the learned Chief Justice of India for constituting a Constitution Bench to hear this petition after mentioning the contentions of Shri Sibal requires that we must decide those contentions on merits and we cannot dispose of the writ petition on this preliminary point without going into the merits of those contentions. Without expressly saying so, the suggestion of Shri Sibal is that we have no option in the matter in view of the aforesaid order dated 27.2.1992 by a Division Bench except to decide these contentions on merits. We may here mention that the contentions of Shri Sibal mentioned in the order dated 27.2.1992 are mainly for reconsideration of the decision in Sub-Committee on Judicial Accountability and amount to reagitating the very same points which were considered and rejected by majority in the earlier Constitution Bench decision. Apart from the question whether reconsideration of that decision can be sought in this manner, we have no doubt that the order dated 27.2.1992 made by the Division Bench could not bind even that Bench much less a larger Bench in the manner suggested by Shri Sibal when the reference to a Constitution Bench is to hear the petition as a whole and not merely decide certain questions of law without even issuing Rule. In our opinion, the course we have adopted was available to that Division Bench itself even after making the order dated 27.2.1992 if it had heard the matter thereafter instead of referring the petition for hearing by a Constitution Bench. This contention does not merit any further consideration.
14. The two main preliminary points which arise in these petitions are : (1) Tenability of the plea for reconsideration of the decision in Sub-Committee on Judicial Accountability v. Union of India and others, (1991)4 SCC 699 - at the instance of the petitioners; and (2) Maintainability of the petitions for reliefs claimed for the benefit of Mr. Justice V. Ramaswami without impleading him as a party.
15. We have already indicated the impropriety of considering and deciding the question of grant of reliefs claimed in the petitions for the benefit of Mr. Justice V. Ramaswami in his absence even as a party. Ordinarily, it is the person aggrieved and directly affected who must seek the relief himself unless disabled from doing so for a good reason which permits someone else to seek the relief on his behalf. In that situation also the claim is made in substance by the person affected even though the form be different and it is so stated expressly. The only reason given for the learned Judge not doing so, by Shri Sibal, has not considered by us earlier and not found sufficient to support his submission. We may also mention that in a similar situation Mr. Justice Murphy of the High Court of Australia, the apex court of that country, while facing proceedings for his removal from office, had bought an action for injunction to restrain the proceedings against him in his own name. The judgment of the High Court of Australia in that matter is Murphy v. Lush and others - (1986)65 ALR 651. That case is referred only to indicate that the grievance in a similar situation was made by the concerned Judge of the apex court himself and not by someone else even without impleading him. We may also add that subsequently in Writ Petition No. 514 of 1992, the petition was filed by the wife of the learned Judge wherein the learned Judge gave a writing to the effect that the writ petition was in substance for and on his behalf with the decision in which he would be bound. There is nothing on record in these petitions to indicate a similar stand by the learned Judge. Moreover, if the subsequent writ petition for his benefit is filed by his wife in this manner, there is no reason why the learned Judge would not adopt the same method to raise the points involved in these petitions, if he was so advised.
16. The plea for reconsideration of the earlier judgment in Sub-Committee on Judicial Accountability at the instance of the present petitioners is made placing strong reliance on A.R. Antulay v. R.S Nayak and another, (1988) 2 SCC 602. In our opinion, the decision in Antulay is of no assistance to the petitioner in the present case. In the first place, it is not the learned Judge Mr. Justice V. Ramaswami who has asked for reconsideration of that decision, assuming he could do so by a petition under Article 32 of the Constitution instead of by a review petition, since Mr. Justice V. Ramaswami was a party in that matter. On the other hand, it was Antulay himself who had challenged by a petition under Article 32 the decision rendered against him by this Court. In addition, the settled principles for reconsideration of a decision which have been once again reiterated in Union of India and another v. Raghubir Singh (Dead) by LRs. etc. - (1989)2 SCC 754 - clearly indicate that the plea for reconsideration is not to be entertained merely because the petitioner chooses to reagitate the points concluded by the earlier decision in Sub-Committee on Judicial Accountability. In The Keshav Mills Co. Ltd. v. Commissioner of Income-tax, Bombay North - (1965) 2 SCR 908, it was pointed out that interest of public good should be the guide and there must be compelling reasons for reconsideration of a decision of this Court for public good. We do not find any good much less public good being served in reopening those questions which are concluded by a decision of the Constitution Bench in Sub-Committee on Judicial Accountability particularly when the plea is not even made by the concerned Judge himself and the attempt to reagitate those points is related to the same learned Judge facing the same proceedings for his removal. Antulay's case is also distinguishable for the reason that therein the result of the earlier decision against him challenged by Antulay in the petition under Article 32 had the effect of conferring jurisdiction on a Court contrary to the specific statutory provision; and the error in the earlier judgment to this effect was considered to be sufficient for Antulay himself to challenge that decision by an independent writ petition instead of a review petition. Moreover, judgment of Mishra, J. as well as that of Mukharji, J. as their Lordships were then, give a clear indication that the decision therein was not intended to be a precedent and was confined to the peculiar facts and circumstances of that case. This distinction is sufficient to hold that Antulay does not permit these petitioners to claim reconsideration of the earlier decision in these circumstances.
17. Shri Sibal contended that the petitioners not being a party to the earlier decision in Sub-Committee on Judicial Accountability, the remedy of review of that decision is not available to them. In our opinion, this argument instead of supporting their claim for seeking reconsideration of the judgment, actually negatives it. If they are not entitled to seek review, as they were not parties in the earlier proceeding in which the judgment was rendered and the person directly affected remains the same learned Judge who was a party then but not now, these petitioners cannot have the right which they seek to assert when the context remains the same. Moreover, we deem it inappropriate to consider these questions at their instance in these circumstances.
18. The written submissions of petitioner Raj Kanwar are in substance no addition to the points urged by Shri Sibal and, therefore, do not require any separate consideration. We might, however, mention that petitioner Raj Kanwar persisted in claiming to be also heard orally in addition, which we refused for the reasons given. We must add that the petitioner Raj Kanwar appears to be a busy body who has filed the petition for no ostensible public purpose. He has described himself as an advocate practising in the District of Karnal without indicating the reason for his persistence in repeating the same challenge in his individual capacity when Shri Kapil Sibal, Senior Advocate has argued at length the point he raises, on behalf of Member of Parliament and Advocate of Madras claiming a personal relationship with the learned Judge for long and the Supreme Court Bar Association and the Sub-committee on Judicial Accountability have appeared as interveners before us.
19. We would have refrained from making these observations but for the fact that petitioner Raj Kanwar after the conclusion of the hearing in which he was permitted to file written submissions which we have taken into account, chose to adopt the extraordinary course of an application to the Chief Justice of India to make the wholly unjustified grievance that he was not orally heard. As an advocate he should have known that such an application is untenable apart from being misconceived. He should have appreciated that public interest was served better by early conclusion of the hearing rather than its prolongation to enable every individual, who so desired, to address us orally. We are also of the opinion that in a matter of this kind, it was not only unnecessary but also inappropriate to permit the hearing being covered into a debate for participation of every individual in the name of public interest. We do not think that the persistence of Raj Kanwar is in public interest.
20. The view we are taking of the role of petitioner, Raj Kanwar, in Writ Petition (Civil) No. 140 of 1992 is in consonance with the decision in S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, wherein this aspect was considered at length. In his petition as well as in written submissions all that he said was to seek relief on merits on the points raised which are concluded by the earlier Constitution Bench decision without even showing as to how he is entitled to make the claim. Later he added that the absence of the Judge is immaterial and the points be decided without any relief being granted to anyone.
21. The basis of the right claimed by the petitioner, Raj Kanwar, has to be found in some principle to amount to the right of the kind he claims. There is no special injury to him alleged and, therefore, the right he claims is no better than that available to every other advocate in the country. If the mere membership of the Bar can provide the foundation for the right which Raj Kanwar asserts to maintain a separate petition then on principle every advocate in the country would be entitled to file a separate petition, and as he claims also entitled to be heard orally even though it may only be at best repetition of the same arguments which Shri Kapil Sibal, Senior Advocate advanced at length. Since it cannot be visualised that every Advocate as an individual can claim such a right in public interest, it cannot be doubted that the claim made by petitioner, Raj Kanwar to this effect and his insistence on being orally heard when he had nothing additional to contribute, as is evident from his petition and the written arguments, is clearly misconceived. It is necessary that this tendency is curbed in public interest to avoid wastage of courts' time and abuse of its process.
22. It is beneficial in this context to reproduce certain portions from the decision in S.P.Gupta. The opinion of Bhagwati, J. as he then was, on this aspect reflects the opinion of the Bench and he stated as under :
``But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others ...
xxx xxx xxx
Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is, that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.''
(Paras 24-25, pages 219-220)
xxx xxx xxx
``We have taken a broad and liberal view in regard to locus standi and held that any public-spirited advocate acting bona fide and not for private gain or personal profit or political motivation or any other oblique consideration, may file a writ petition in the High Court challenging an unconstitutional or illegal action of the Government or any other constitutional authority prejudicially affecting the administration of justice and in such writ petition he may claim relief not for himself personally but for those who are the direct victims of such unconstitutional or illegal action, because granting such relief to them would repair the injury caused to administration of justice. But the persons for whom the relief is sought must be ready to accept it; they must appear and make it known that they are claiming such relief; it cannot be thrust upon them unless they wish it.
xxx xxx xxx
The Court does not decide issues in the abstract. It undertakes determination of a controversy provided it is necessary in order to give relief to a party and if no relief can be given because none is sought, the Court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. The Court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such misuse or abuse of power. The Court cannot take upon itself the role of a commission of inquiry - a knight errant roaming at will with a view to destroying evil wherever it is found.'
(Para 57, pp. 264-265)
23. Venkataramiah, J. stated thus :
``It has, however, to be made clear that it cannot be said that lawyers only because they have a right to practice in a court have `locus standi' to file petitions in respect of every matter concerning judges, courts and administration of justice. There are many such matters in which they have no `locus standi' to ask for relief .......
But for the active participation of these two persons, the petitions
regarding relief concerning them individually would have probably become liable
to be dismissed on the ground that the lawyers have no `locus standi' to make
these prayers.'' 24. In S.P. Gupta while widening the `locus standi' in matters of public
interest, the limitations to prevent abuse of the process of court were also
indicated and the case of only those judges was examined who were parties before
the Court.
25. We have dealt with this aspect at some length and also referred to the
decision in S.P. Gupta since in the present context it has become necessary to
reiterate the same to disabuse the mind of persons, like Raj Kanwar, who insist
that they have such a right in the abstract. Petitioner Raj Kanwar could have
served the public interest better if he had assisted Shri Kapil Sibal in the
main petition, assuming he had something additional to say. The assertion of
petitioner Raj Kanwar that he has any such right in the abstract is
misconceived.
26. Even though the hearing in these petitions had concluded before we heard
Writ Petition No. 514 of 1992, yet we deferred the decision of these writ
petitions till now on the express request made by Shri Kapil Sibal not to decide
these matters before deciding Writ Petition No. 514 of 1992.
27. We add that on a reconsideration of the matter in the light of the
exposition of law made by Brother K. Ramaswamy in his separate opinion
circulated to us, we regret our inability to concur with him in the area of his
disagreement. On the points decided by us, leaving open the points which do not
arise at this stage for our consideration for the reasons we have given,
preferring to follow the salutary practice of not deciding any question, much
less a constitutional one, unless it is necessary to do so, we would prefer to
reserve our opinion on the remaining questions for the occasion, if any, in the
future when they arise for decision.
28. For the aforesaid reasons, both these writ petitions fail and are
dismissed on the above preliminary grounds without going into the points raised
on merits herein which do not arise for consideration at the instance of the
petitioners at this stage on the conclusion we have reached. In view of our
conclusion to dismiss these writ petitions, it is unnecessary to decide the
pending I.As., including those for impleadment, which are accordingly disposed
of. No costs.
K. Ramaswamy, J.
Writ petition (C) No. 140 of 1992
29. I am in complete agreement with my learned brother Verma, J. in his
consideration of the writ petition of the petitioner. Therefore, there is
nothing useful for me to add. The writ petition is accordingly dismissed but
without costs.
Writ Petition (C) No. 149 of 1992
30. I have had the benefit of reading the draft judgment proposed by my
learned brother Verma, J. With all due regards and personal respect to my
learned and esteemed brethren, it is my misfortune for my inability to tread
their path. Therefore, I have chosen to plough my lone farrow, since the matter
is of great significance and the questions to be decided bear wider
significance.
31. The short sift of the facts pertinent to the points posed are that on
February 27, 1991 a notice of motion signed by 108 members of the 9th Lok Sabha
was presented to the Speaker to initiate proceedings against Hon'ble Mr Justice
Veeraswami Ramaswami, a sitting Judge of this Court, alleging commission of
financial irregularities in the discharge of his administrative duties as Chief
Justice of the Punjab and Haryana High Court. The Speaker admitted the motion on
March 12, 1991 and constituted a Committee comprising of Sri Justice P.B. Sawant,
a sitting Judge of this Court, as Presiding Officer and Sri Justice P.D. Desai,
the Chief Justice of the Bombay High Court and Sri Justice O. Chinnappa Reddy, a
retired Judge of this Court, distinguished jurist as members under Section 3(2)
of Judges (Inquiry) Act 41 of 1968 (for short `the Act'). The 9th Lok Sabha was
dissolved on March 13, 1991. The Sub-committee on Judicial Accountability filed
a writ petition in this Court under Article 32 of the Constitution and a host of
writ petitions ensured, which were disposed of by a Constitution Bench reported
in the Sub-committee on Judicial Accountability v. Union of India, for
short `SCJA' in which this Court declared that the motion admitted by the
Speaker of the 9th Lok Sabha is valid; his action under the Act is outside the
Parliament; it did not lapse and directed the Union of India to notify his
constituting the Committee under Section 3(2) of the Act. Pursuant thereto, a
notification was issued by the Central Government. The Secretary to the
Committee issued notice in Form I of the Judges (Inquiry) Rules, 1969 (for short
`the Rules') on January 14, 1992 communicating definite charges and requested
Mr. Justice V. Ramaswami to put in his written statement of defence on or before
February 4, 1992 and to appear either in person or through counsel on February
10, 1992 along with his evidence. At request, George Fernandez, Jaswant Singh,
SCJA and the petitioner was permitted only to assist the Advocate of the
Committee to prove the case against the Judge and to keep secrecy of the facts
and the proceedings. The petitioner's insistence to prove the innocence of the
Judge was not acceded to. So he filed the writ petition.
32. When the matter came up for admission before a Bench of three judges on
February 27, 1992 to which one of us (K.J. Reddy, J.) was a member, having heard
counsel the learned Sri Sibal, formulated the following five questions and
having regard to the importance of those questions raised, referred the matter
of the Constitution Bench.
(1) Sub-section (1) of the Judges (Inquiry) Act, 1968, mandates that the
Speaker of the House of People small either admit or refuse to admit a motion
for presenting an address to the President of India for the removal of Judge of
the Supreme Court of India only ` after ' considering such materials, if any, as
may be available to him and failure to comply with the said sine-qua- non, viz
consideration of available material before admitting the motion, vitiates his
decision for non-application of mind. In the present case since the then
Speaker, respondent No. 3 is not shown to have applied his mind to the available
material before admitting the motion, his decision to admit the motion and
constitute the Committee comprising respondents Nos. 4,5 & 6 is
unsustainable in law.
(2) Sub-section (2) of section 3 of the Judges (Inquiry) Act, 1968, invests
the Speaker with the power to constitute a Committee for the purpose of making
an investigation into the grounds on which the removal of the Judges is sought,
but such power must be exercised consistent with the established practice and
norms and consistent with the idea of independence of judiciary, after
consultation with the Chief Justice of India. In the present case all the three
Committee members were directly approached by the Speaker, respondent No. 3, who
thereby departed from the well established practice and hence the constitution
of the Committee clearly vitiated in law.
(3) Although sub-section (1) of Section 4 of the Judges (Inquiry) Act
empowers the Committee to regulate its own procedure in making the
investigation, which procedure must be consistent with the rules of natural
justice, the committee has not outlined any procedure for investigation and the
procedure it has hitherto followed in framing charges without undertaking any
preliminary investigation to ascertain if there is sufficient prima facie
material for framing a charge and in refusing to provide the concerned Judge
with copies of documents sought on unsustainable grounds and in permitting third
parties to assist the Committee through its counsel against the Judge and in not
permitting the petitioner to assist the Committee to establish the innocence of
the judge, the Committee has completely mutilated the `sui juris' character of
the investigation and thereby rendered the proceedings illegal and wholly
inconsistent with the principles of natural justice.
(4) If the provisions of sub-sections (3) and (4) of section 3 are read to
mean that they empower the Committee to frame charges without holding a
preliminary investigation at which the concerned Judge may participate, the said
two sub-sections would be rendered ultra vires Article 124(5) of the
Constitution.
5. When the Constitution Bench decided the case Sub-Committee on Judicial
Accountability v. Union of India & Ors. [(1991)4 SCC 699] the proceeding
which took place in House of People were not before it, which proceedings now
available, clearly indicate that the Speaker himself was alive to the fact that
he was constitutionally obliged to place the notice before the House and his
decision on the admission of the notice was depend on the collective wisdom of
the House.
In view of this factual aspect reflected in the proceeding of the House, the
decision of the Constitution Bench needs reconsideration.
The Secretary of the Committee and the interveners exchanged their respective
pleading and evidence on record. We have had the benefit of the arguments of all
the learned counsel and also requested them to give exhaustively written
arguments on all points raised in the matter. Accordingly they have done. I have
given my anxious consideration to all the contentions and the materials placed
in support thereof.
33. The substratum of the petitioner's pleas and ably argued by his learned
Senior Counsel, Sri Kapil Sibal are: that Sri Rabi Roy, the Hon'ble Speaker of
the 9th Lok Sabha, the third respondent herein, did not have with him all the
material matrix before admitting the motion to remove the Judge, nor applied his
mind to the material to find prima facie case, which is a condition precedent
under the Act and the Rules, to be consistent with Art. 124 of the Constitution
of India. He should have conducted preliminary enquiry in that behalf. The
record does not bear out any reason. Non-application of the mind or bereft of
reasons smacked of the jurisdiction of the Speaker to admit the motion and at
any rate it is illegal. This court on the earlier occasion did not have the
advantage of the record now available to deal with this aspect. The petitioner
being a non-party is not bound by the Constitution Bench Judgment which requires
fresh look in light of the above material. The constitution of the Committee
without consultation and nomination by the Chief Justice of India became
illegal. The enquiry, not having been preceded by any investigation is ultra
vires of Article 124(5) of the Constitution. If it is otherwise,
sub-sections (3) & (4) of section 3, section 4(1), etc. of the Act are ultra
vires of Art. 124(4). He further contends that Committee cannot be a
prosecutor and a Judge. Before framing definite charges, it has to conduct an
investigation into the allegation after giving reasonable opportunity to the
learned Judge. The Committee did not adopt that procedure. Instead, it framed
charges which lack factual foundation nor are supported by unimpeachable
evidence. There is dichotomy between investigation and inquiry. In the
investigation, the committee, after giving reasonable opportunity to Judge, was
to find whether from the material the charges could be framed and it finds in
the negative, the need to conduct the enquiry does not arise and it should
report accordingly to the Speaker who would drop further action. Only after the
investigation, finding that there is prima facie material or evidence, definite
charges shall be framed, followed by an enquiry conducted against the learned
Judges after giving reasonable opportunity. The enquiry shall be confined only
between the learned Judge and the committee. The Advocate appointed to assist
the committee cannot proceed as if he is a prosecutor against the learned Judge.
The Committee did not inform the Judge before hand as to what procedure it seeks
to follow in this matter, The committee committed manifest illegality in
permitting Messrs. George Fernandez and Jaswant Singh and the SCJA to
participate as persecutors against the learned Judge. They have no locus standi
either to participate or adduce evidence against the Judge. The specious pleas
of purity of judicial administration is an actuated pretence to malign the
Judge. The evidence establishes that the advocate for the committee along with
the advocates of the Members of Parliament and the SCJA had prior consultations
and in fact tutored the witnessed before the proceedings commenced which is
repugnant to the dignity of Judicial process impinging upon Article 21 as an
unfair procedure. The Committee itself cross examined the witnesses that
answered favourably to the Judge. On the basis of the material placed before the
court, he argued that the evidence does not establish any of the charges
levelled against the learned Judge. His conduct to attract Article 124(4) of the
Constitution and the Act of misbehaviour impinging upon the integrity of the
learned Judge must be grave but not the trial administrative lapses to initiate
proceedings for removal or an enquiry thereon. Diverse circumstances available
before the committee would not establish any misbehaviour by the learned Judge.
Sri Altemesh Rein, Advocate-intervener. contended that the alleged misbehaviour
was committed while discharging his duties as Chief Justice of Punjab and
Haryana High Court; as per Article 217 (1)(C), on his elevation of this Court,
they ceased to be of any relevance for an investigation under Article 124(5);
the Act and Rules, the action does not touch upon his misbehaviour as a Judge of
this court which alone is germane. So the motion for removal and consequent
enquiry are devoid of jurisdiction and authority of law.
34. Sri G. Ramaswamy, the learned Attorney General contends that the Union of
India did not file any counter, nor is interested in taking any particular stand
in the matter. As Attorney General, on notice, contends that in a public
interest litigation the essential requirement is that the petitioner must be
genuinely interested to seek declaration of public law. Only persons like busy
body or actuated with malice, should have no locus standi. The petitioner, being
an advocate and a Member of Parliament, gets sufficient interest to maintain the
writ petition. The omission to implead the learned Judge, though ideal to have
him pleaded, does not become an handicap to declare the law which would bind the
learned Judge as well. But the relative merits of the dispute personal to the
learned Judge should not be considered, nor be given relief. For example in
respect of the relief by the petitioner, concerning the alleged bias by the
committee, the writ petition is not maintainable at his behest. The procedure
for investigation and proof of misbehaviour under Article 124(5) of the
Constitution and Section 4(1) and 3(3) of the Act are distinct and different.
The former refers to inquisitorial and the later partakes of adversorial.
Section 3(3) of the Act occupies the field of adversary process whereas Section
4(1) encompasses both. "Investigation" accrued distinct connotation
under Item 8 of the List 1 of 7th schedule to collect evidence to facilitate
enquiry or trial. In support thereof he placed reliance on the provision in the
Code of Criminal Procedure. During the investigation authority is empowered
without predisposition, to sift the evidence and the enquiry confines to the
field of proof of the charge for the determination of the guilt or innocence and
to record a finding in that behalf. This would be done as an independent
Tribunal or as Court after giving opportunity to the contending parties adduce
evidence. Its endeavour is to bring out the truth and not to bolster us the
case. The counsel for the tribunal has no role to play in proof of misbehaviour
against the Judge. There can be neither a counsel for nor witnesses of the
Committee. It is enjoined to adjudicate the credibility of evidence and reach
its conclusions of guilt or innocence but not to act as prosecutor to prove the
case against the Judge. The correctness of the procedure adapted by the
Committee hinges upon the declaration of law in this behalf by this court for
which the learned Judge is neither a necessary, nor a proper party. Even
otherwise in his absence also the declaration would be given which binds him. No
third party other than the learned Judge and the Advocate appointed under
Section 3(9) of the Act has a right to participate or adduce evidence during the
investigation and enquiry done by the committee. The decision in SCJA case
requires reconsideration. Even otherwise the declaratory reliefs of public law
could be made by this court.
35. Sri Nariman, the learned Senior Counsel appearing for the Committee with
equal ability fairly contended that the petitioner has neither locus standi nor
the writ petition maintainable to review the earlier decision. The motion for
removal of the learned Judge is a political process. Though the Speaker is a
statutory authority, he does not act like a judicial or administrative authority
to record reasons before admitting the motion. He is a constitutional
functionary of high authority. The fact that he admitted the motion does
indicate that he had applied his mind and found prima facie grounds to admit the
motion for removal of the learned Judge. Accordingly, he admitted the motion and
constituted the committee. It is neither necessary for him to make prior
investigation nor give notice to the Judge. It is not mandatory that he should
consult the Chief Justice of India. It is his discretion. The constitution of
the committee without consulting the Chief Justice of India is not illegal. The
Committee is not required to make investigation before framing definite charges.
The committee is to consider the record sent by the Speaker and if it found
prima facie evidence or material to frame definite charge or charges, it would
be open to the committee to do so and issue notice in Form I to the learned
Judge. Before framing the charges, the learned Judge is not entitled to any
notice or opportunity . Only after communication of the charges in Form I, the
learned Judge is entitled to submit his written statement of defence and also
his adducing evidence in support thereof. He is also entitled to legal
assistance as well as to be heard. Investigation and enquiry contemplated under
the Act and the Rules is overlapping and synonymous. Even if the learned Judge
opts to remain ex parte, the committee is obligated to conduct the enquiry into
the definite charges and the Advocate be appointed to assist the committee to
prove the charges framed against the learned Judge by adducing evidence. The
committee consists of eminent members having long judicial experience and
impeccable integrity and erudite. The proceedings before the committee are in
the nature of a trial of a civil suit in which the learned Judges or his counsel
and the Advocate alone are entitled to participate and lead evidence. Permission
to third party to participate in the proceedings flows from the discretion of
the committee to adopt its own procedure and in exercise thereof limited right
to participate in the enquiry was given to third parties. The committee has to
submit its report recording finding/findings whether or not the charge or
charges has/have been proved. If the committee finds that charges have been
proved, then the political process under Article 124(4) again would revive. If
the committee finds that the charge have not been proved, then the Speaker has
to drop the proceedings in terms of the Act and the Rules. The petitioner cannot
seek the reliefs asked for in the writ petition. The Judge alone is entitled to
impugn the proceedings or claim for reasonable opportunity. Since the learned
Judge opted to remain ex parte, the petitioner cannot challenge the proceedings
since any adverse findings given by this court would not bind the Judge as he is
not eo nominee party to the writ petition. He also further contended that
neither the decision in SCJA case is open to be reviewed nor the petitioner has
locus to do so. Sri Jitendra Sharma, Secretary of the Supreme Court Bar
Association adopted the contentions of Sri Nariman. Sri Shanti Bhushan, the
learned Senior counsel for SCJA, while supporting Sri Nariman, further argued
with usual vehemence that they are bona fide interested to uphold the dignity of
the court and the efficacy of the rule of law; they are also interested that the
learned Judge should come out unscathed at the earliest; their locus was upheld
by this court, and they are interested to bring on record the true and correct
facts. The permission granted by the Committee is not illegal. The members of
the Parliament having moved the motion are interested to prove the allegations.
36. The main question that needs adjudication is whether the petitioner has
locus to maintain the writ petition. Indisputably, the petitioner is an advocate
of Madras High Court Bar and he is also a Member of the Parliament. Therefore,
it cannot be said that he is a pro bono publico. His genuine interest to
uphold the dignity of the judiciary is not doubted. The petitioner sought time
to implead the learned Judge as a party respondent to the writ petition. But
ultimately, it was given up. By itself it would not detract, if the relief/reliefs
otherwise would be considered and given. The facts present interpretation of the
constitution, the scope of the Speaker's power to admit the motion to remove a
Judge, his dignity coupled with the independence of the judiciary, the pivotal
organ of the State. Some of the questions raised are of far-reaching importance.
As a member of the Bar, he would definitely be interested in settling the law of
the procedure to remove a Judge of higher judiciary under Article 124(5); read
with the Act and the Rules. Moreover, the procedure for the removal of a Judge
is sui generis. The discretion left to the committee under Section 4(1)
of the Act to regulate its own procedure to investigate into the definite
charges against the learned Judge bears vital importance. It is trite to burden
the judgment with bead roll of precedents but suffice to reiterate that any
member of the public having sufficient interest could maintain an action for
judicial redress from public inquiry arising out of the breach of public duty or
of law and seek enforcement of such public, constitutional or legal duty. Strict
rule of locus was relaxed and personal right enforcement was whittled down. The
ratio in S.P. Gupta v. Union of India, is an authority on this score. In the
public interest, therefore, any person genuinely interested to uphold
independence of the judiciary and the law would get sufficient interest and
acquires locus to seek to lay down public law in that behalf. The writ petition,
therefore, should not be thrown out on the ground that the petitioner lacks
locus to litigate the lis. But every Advocate need not be heard which would be
only a suprlusage at the hands of Raj Kanwar. In that behalf I agree with the
view of brother Verma, J.
37. The question then is whether the writ petition is by way of a review of
the earlier decision. It is settled law that a judgment of this court cannot be
impugned or its correctness assailed by way of another writ petition on any
ground whatever. In N.S. Mirajkar v. State of Maharashtra, nine Judges Bench
held that the judicial order is not liable to be questioned in a writ petition.
The same view was reiterated by another Seven Judges' Bench in A.R. Antulay v.
N.S. Naik. It would thus be held that the correctness of the judgment of this
court in SCJA's case is not amendable to the writ jurisdiction.
38. Sri Kapil Sibal, therefore, contends that the petitioner is not assailing
the correctness of that judgment but he is placing another facet touching the
jurisdiction of the Speaker, in admitting the motion and constituting the
committee under the Act to conduct the enquiry, on the basis of fresh material
which was not available to this court when SCJA's case was decided. It is
settled law that it is the decision and not the reasons in support thereof that
would be conclusive and binds all parties. Therefore, even if there is any
additional material that was subsequently discovered, it would be of little
avail to assail the correctness of the judgment except by way of review before
the Bench that decided SCJA's case.
39. The Constitution confers in explicit language judicial review on the
Supreme Court and by operation of Articles 138, 139 and 140, enlarged that
power, to elongate and effectively adjudicate the questions doing full and
effective justice. The power of judicial review is to stamp out, excesses in
exercise of power, injustice or miscarriage of justice. The decision of this
court is the last word on the interpretation of the Constitution and the laws as
law of the land under Art 141. The Judge is the living oracle working in dry
light of realism pouring life and force into the dry bones of law to articulate
the felt necessities of the time. The Judge, in particular, from higher
judiciary possesses, undoubtedly, power and jurisdiction to decide rightly or
may err as well. The error must be corrected as provided under law. In its
absence, it cannot be disturbed. The superior court has jurisdiction and power
to determine its own jurisdiction and error in that behalf does not constitute
an error of jurisdiction. The people would shape their course of conduct or
dealings or legal affairs in accordance with law. The law laid down by this
court operates are precedent. The law laid, thus, needs stability, continuity
and certainty. The judicial vacillation would undermine the respect for the law
and the utility of the very judicial process as well as its efficacy. We are
bound by the taught traditions and built-in heritage of law. Adherence to
precedents, stare decisis, is usually a wise policy for rule of law unless we
have clear, compelling and substantial reasons for its reconsideration in the
larger public interest. Reconsideration of an earlier view is not due to an act
of judicial fallibility but an index of supremacy of law. So when all the
relevant provisions of law or material aspects of the case or binding precedent
was not brought to the notice of the court and its impact on the general
administration of law, it would need reconsideration. The obvious error
committed by the court leading to miscarriage of justice would need correction
by Article 142 or section 114 read with Order 47 Rule 1 or section 151 Cr.P.C.
etc. But by itself it is not a licence to unsettle the settled law or keep the
law at variance at pleasure or whim.
40. This Court in Keshav Mills Co. Ltd. v. C.I.T. Bombay, laid that :-
``In reviewing and revising its earlier decision, this Court should ask
itself whether in the interests of the public good or for any other valid and
compulsive reasons, it is necessary that the earlier decision should be revised.
When this Court decides questions of law, its decisions are, under Article 141
binding on all courts within the territory of India, and so, it must be constant
endeavour and concern of this court to introduce and maintain an element of
certainty and continuity in the interpretation of law in the country. Frequent
exercise by the court of its power to review its earlier decisions on the ground
that the view pressed before it later appears to the court to be more
reasonable, may incidentally tend to make law uncertain and introduce confusion
which must be consistently avoided. That is not to say that if on a subsequent
occasion, the court is satisfied that its earlier decision was clearly
erroneous, it should hesitate to correct the error; but before a previous
decision is pronounced to be plainly erroneous, the court must be satisfied with
a fair amount of unanimity amongst its members at a revision of the said view is
fully justified. It is not possible or desirable, and in any case it would be
inexpedient to lay down any principles which should govern the approach of the
court in dealing with the question of reviewing and revising its earlier
decisions. It would always depend upon several relevant considerations:-
What is the nature of the infirmity or error on which a plea for a review and
revision of the earlier view is based ? On the earlier occasion, did some patent
aspects of the question remain unnoticed, or was the attention of the court not
drawn to any relevant and material statutory provision, or was any previous
decision of this court bearing on the point not noticed ? Is the court hearing
such plea fairly unanimous that there is such an error in the earlier view ?
What would be the impact of the error on the general administration of law or on
public good ? Has the earlier decision been followed on subsequent occasions
either by this court or by the High Courts ? And, would the reversal of the
earlier decision lead to public inconvenience, hardship or mischief? These and
other relevant considerations must be carefully borne in mind whenever this
court is called upon to exercise its jurisdiction to review and revise its
earlier decisions. These considerations become still more significant when the
earlier decision happens to be a unanimous decision of a Bench of five learned
Judges of this Court.''
41. In Union of India v. Raghubir Singh, this Court laid stress on the
importance of finality of decisions rendered by the Constitution Bench of this
Court; it could only be upset where the subject was of such fundamental
importance to national life or the reasoning is so plainly erroneous in the
light of latter thought that ``it is wiser to be ultimately right rather than to
be consistently wrong.'' The majority ratio in A.R. Antulay v. N.S. Naik,
(supra) rests upon its peculiar facts offending Arts. 14 and 21 and so the
earlier direction for trial by a High Court Judge was reversed. The rule of law
laid by this court, from the above perspective, in SCJA's case is clear,
precise, certain and needs to maintain consistence. It is, therefore, not
desirable to reopen the said ratio. But this finding does not conclude the
controversy. Facts gave rise to diverse questions of far reaching importance
which had not arisen when the earlier decision was rendered or canvassed.
42. The public are vitally interested in the cleanliness of the public
administration of justice which is of paramount importance. The public justice
is the hall mark for public good. A person genuinely or bona fide interested in
seeking declaration of law of public importance would always get sufficient
interest and be entitled to seek declaration on that behalf which binds not only
the State but every person, even if affected thereby, though not eo nominee a
party respondent to the proceedings. A relief in favour of that person in his
absence could in an appropriate case also be granted. In Makhan Lal Waza and
others v. State of Jammu and Kashmir, the Constitution Bench held that the law
declared by this court was binding on the State and its officers and they are
bound to follow it whether majority of the respondents were parties or not to
the previous petition. In S.P. Gupta's case this court having regard to the
magnitude and importance of the constitutional questions involved in the cases
accorded locus to the Advocates. In B. Prabhakara Rao and others v. State of A.P.,
this court held that the relief claimed is of a general nature and against the
state and so the failure to implead all the affected parties is not a bar to
maintain the writ petition. SCJA's case itself is an authority for the
proposition of declaration of public law when laid by the Advocates. In this
case Three Judges' Bench referred public law questions to this Bench which are
of wider constitutional ramifications touching upon the independence of
judiciary and the interpretation of the constitution and the Act.
43. In the larger public interest, as the questions have arisen for the first
time, it would be just and fit for this court to declare the law of proper
procedure to be followed in admitting the motion to remove a judge of higher
judiciary and the investigation thereon by the committee so that it would be the
law of the land under Article 141 of the Constitution. Though it would be ideal
to implead the learned Judge as respondent, his absence too would stand to no
impediment to declare public law which would bind him too. In that view, it must
be held that the petitioner being a legal practitioner would be entitled to seek
only declaration of law of certain aspects which would be adverted to
hereinafter.
44. This Court in SCJA's case held that the Speaker of the House of
the People is a ``statutory authority.'' Under Article 93 of the Constitution,
the House of the People having chosen the Speaker, he/she holds the office till
he/she ceases, as per Article 94 to be a member of the House of the People or
removed or resigned. The office of the Speaker is of trust by the House of the
People elected by adult franchise by the people. Under section 3(1) (a), on
presentation of a motion praying for the removal of a Judge signed by not less
than 100 members of the House of the People, ``the Speaker, ``may'' under
section 3(1) of the Act, after consulting ``such persons,'' if any, as he thinks
fit and ``after considering such material,'' if any, as may be available to him
either admit the motion or refuse to admit the same.
45. The primary requisite which the Speaker is enjoined to do is to find
whether the motion was signed by not less than 100 members of the House of the
People. Equally, he is required to consider the grounds and the materials, if
any, available to him, before taking a decision to admit or refuse to admit the
same. The word `may' though couched with discretion, when the exercise of the
power effects the rights of the Judge, causes convulsions on judiciary and
generate psychological set back on ongoing process, the Speaker was authorised
to wisely exercise discretionary power by consulting such persons, if any, as he
may have chosen and thinks fit to be consulted. Before admitting the motion, it
may be expected and may be prudent that the Speaker may consult persons like the
Chief Justice of India, the fountain head of judiciary, and the Attorney General
of India, the Principal Advisor of the Govt., whose duty should be to give
advice upon legal matters or to perform such duties of legal character. If the
Speaker consults, the Chief Justice of India would help him by proper advice and
the Attorney General is under the constitutional duty to tender advice and to
assist the Hon'ble Speaker to discharge the constitutional function, i.e. to
decide in admitting or refusing to admit the motion to remove the judge of the
constitutional judiciary. It is also equally salutary that before admitting the
motion to remove the judge, there shall exist factual foundation. The grounds
mentioned in the motion, the material or evidence placed in support thereof and
the advice tendered, if consulted, would form ``the record.'' He would consider
that record and filter the process before deciding to initiate proceedings or
refusal thereof. He need not weigh the pros and cons to find prima facie case.
He acts, neither as a quasi-judicial nor an administrative authority but, purely
as a constitutional functionary and with high sense of responsibility and on due
consideration of `the record and arrives at a decision to admit or refuse to
admit the motion to remove the Judge. The Speaker, therefore, would act with
utmost care, caution, circumspection and responsibility and wholly guided by
considerations of larger interest of the public administration of justice. He
would equally keep in his gaze and the mind the seriousness of the imputations,
nature and quality of the record before him and ``its indelible chilling effect
on the public administration of justice and independence of the judiciary in the
estimate of the general public.'' Existence of definite material or evidence in
support of the grounds of the motion, before initiation of the motion for
removal of the Judge is, thus, a condition precedent. Lest it would be an open
invitation to initiate, for obvious reasons, proceedings to remove the Judge and
then resort to collect perjured evidence in support thereof against the judge
which is subversive of judicial independence and death knell to rule of law.
Action in any other way, the Speaker would forfeit the trust reposed by the
founding fathers of the Constitution in that office as well as the confidence of
the House of People, i.e. the people of Bharat themselves. The fact that the
Committee framed charges from the record transmitted by the Speaker fortifies
that he had before him definite material and it furnishes presumptive inference
that he had due consideration thereof before admitting the motion.
46. The question then is the scope of judicial review of the admission of the
motion by the Speaker. Articles 32, 131 to 136 entrust in express terms judicial
review to the Supreme Court; in particular Article 32 as the ultimate repository
and guardian of the rights and liberties of the people. The constitution is the
fundamental law of the land. It limits, as its touchstone, the powers and
functions of the organs of the State, viz. the Executive, the Legislature and
the Judiciary. The Constitution also demarcated and delineated the powers and
functions of these organs which implies that each organ would maintain a
delicate balance with self-imposed restrictions for smooth functioning of the
parliamentary democracy to establish an egalitarian social order under rule of
law. Judicial review thus is an incident of and flows from the Constitution to
securing and protecting the welfare of the people as effectively as it may,
according justice - social, economic and political in all the institutions of
the national life. Court is the living voice of the Constitution which stands
against any winds that blow as heaven of refuge to those who might otherwise
suffer due to their helplessness, inability, non-conformity, handicaps,
exploitation, victims of prejudice or public excitement etc. The paramount duty
of the court is to protect their rights and translate the glorious and dynamic
contents of the Directive Principles and the fundamental rights as a living law,
making them meaningful to all manner of the people.
47. In this light the question emerges whether the decision of the Speaker to
admit the motion to remove the judge moved by requisite number of members of the
House of the People is amenable to judicial review. Undoubtedly, in a
parliamentary democracy governed by rule of law, any action, decision or order
of any statutory/public authority/functionary must be founded upon reasons
stated in the order or staring from the record. Reasons are the links between
the material, the foundation for their erection and the actual conclusions. They
would also demonstrate how the mind of the maker was activated and actuated and
their rational nexus and synthesis between the facts considered and the
conclusions reached. Lest it would be arbitrary, unfair and unjust, violating
Art. 14 or unfair procedure offending Article 21. But exceptions are envisaged
keeping institutional pragmatism into play, conscious as we are of each other's
limitations. The process to remove a Judge under Article 124 (4) consists of
several steps, i.e. the motion duly moved i.e. consideration of the record by
the Speaker and decision to admit the motion; his immediate constituting the
Committee under Section 3(2) of the Act; drawing up of definite charges by the
Committee and investigation for proof of misbehaviour or incapacity after
adhering to the procedure envisaged therein; recording finding or findings
thereon and transmission of the report and the evidence to the Speaker and in
case of proof of misbehaviour or incapacity placing the report and the evidence
on the floor of the House and address by each house and majority resolution
recommending to the President to remove the Judge. The entire process though
integral, all the steps in the process do not take the same colour of judicial
process but bear different contours. The initiation of the motion is statutory
and address by each house and resolution recommending removal of the Judge are
political process. Its admission, the constitution of the committee are
statutory functions. Investigation by the Committee is judicial process. The
Speaker, in this setting, acts neither as an Executive authority nor as a
quasi-judicial authority. He merely discharges the functions of high
constitutional responsibility. His decision to admit the motion to remove the
Judge of the Constitutional Court for absence of reasons stated or staring from
the record is not violative of Article 14 or Article 21 of the Constitution nor
offend the principles of natural justice.
48. Section 3(2) of the Act also does not envisage to place the motion as an
agenda before the Lok Sabha to secure the collective wisdom of the House before
admitting or refusing to admit the motion. The Act exclusively confers on the
Speaker the power, to his/her individual discretion, to take a decision in this
behalf. The further contention that the Speaker is constitutionally obligated to
conduct a preliminary enquiry to ascertain the veracity of the grounds made in
the motion and to determine whether or not prima facie case for investigation
has been made out is devoid of substance. As seen earlier, he merely performs,
though as a statutory authority, a constitutional function to admit or refuse to
admit the motion to remove the Judge. The Constitution entrusted to the Speaker
that responsibility with the expectation that he acts as a reasonable man, as
stated earlier, with high degree of responsibility, considers the grounds for
the removal in the motion and the record before taking a decision to admit the
motion or refusal thereof. The further allegation that the Speaker acted at the
behest of the Janata Dal and Bhartiya Janta Party and that the admission of the
motion ``coloured by political motivation'' is not based on any acceptable
factual foundation and is personal to the Judge.
49. Whether the Speaker is enjoined to consult the Chief Justice of India
before constituting the Committee under Section 3(2) or seek nomination of a
sitting Judge of this Court or one of the High Court's Chief Justices is the
next question. Section 3(2) contemplates that if the motion to remove a Judge is
admitted, the Speaker shall, keep the motion pending and constitute, as soon as
may be, a Committee ``for the purpose of investigation into the grounds on
which the removal of a Judge is prayed for'' in S.3(1) consisting of a
sitting Judge of this Court, one of the Chief Justices of the High Courts and a
distinguished Jurist. Ex facie, it enjoins no obligation on the Speaker to have
consultation with the Chief Justice of India nor to seek nomination of a sitting
Judge of the Supreme Court in terms of Section 3(2)(a) or one referred to in
clause (b). It is his individual choice to constitute the Committee after
obtaining the consent of the concerned member/members. The constitution of the
Committee, therefore, without consultation of the Chief Justice of India or his
nomination of any of the members is not per se illegal. It is desirable and
salutary that the Speaker and Chairman of the Rajya Sabha may set up convention
in this behalf. As it is a first case the failure thereof is neither subversive
of Article 124(5) nor dehors section 3(2) of the Act. The Act fastens no
obligation to ascertain collective wisdom of the House through either political
parties or their floor leaders. The further contention that the Speaker ought
not to have directly approached a sitting Judge of this Court seeking his
consent in terms of Section 3(2)(a) of the Act, also lacks substance. The
further contention that the sitting Judge of this Court and the Chief Justice of
Bombay High Court are not performing their normal constitutional duties when
they act as members of the Committee under the Act unless the President of India
gives his consent and treats the function as part of their duties by a
notification, does not appear to be well founded. Giving consent is one part.
Performance of duties as members of the Committee is a different facet. There is
no constitutional obligation to obtain prior consent of the President. But
before entering upon the duties by a sitting Judge of this court and the Chief
Justice of a High Court as Presiding Officer and member of the Committee
respectively, a notification, as directed to be issued in this behalf in SCJA's
case, is necessary. In this situation, the latter contention lost its
luster. That apart the admission of the motion was already upheld by this court.
50. The next question is the validity and legality of the procedure adapted
by the Committee to investigate into the alleged misbehaviour. To appreciate
that question in its proper perspective and to cull out its effect, it is
necessary to note the pertinent provisions of the Constitution, the Act and the
Rules. The foundation to remove a Judge under Article 124(4) through political
process, is the ``proved misbehaviour or incapacity.'' Article 124(5) envisages
to regulate the procedure by law for the presentation of the address and
``investigation and proof'' of the misbehaviour or incapacity. Section 4(1)
provides the procedure thus :
``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 .....''
The Rules expressly do not provide any specific procedure in this behalf. Two
members of the Parliament, viz. Sri George Fernandez from Janata Dal and Sri
Jaswant Singh from Bhartiya Janta Party and the SCJA sought permission, to place
on record certain material in their possession said to be against the learned
Judge and to lead evidence against him through their counsel and it granted
conditional permission to assist the Advocate appointed under Section 3(9) to
conduct the case against the learned Judge. A conjoint reading of Section 3(3)
(framing of definite charges for investigation; their supply, together with a
statement of grounds on which each charge is based to the Judge; his right of
objections to the charges under rule 6 read with Section 3(8) and if found
tenable, revision thereof by rule 7, giving reasonable opportunity to present
his fresh written statement of defence under section 3(8); 3(4) and rule 7;
right to cross examine witnesses; adduction of evidence in defence; right of
hearing under Section 4(1) before submitting the report coupled with the duty to
conduct ex parte enquiry under rule (8), if the Judge refuses to participate,
does indicate that the Parliament intended that the investigation into the
misbehaviour or incapacity of the Judge, shall be confined only between the
advocate appointed under Section 3(9) of the Act and the learned Judge or his
counsel who alone are entitled to participate and lead evidence in proof or
disproof of the charges and be heard. By necessary implication, the Act and the
Rules exclude participation or adduction of evidence by any other person to
prove the alleged misbehaviour or incapacity. In the virgin area, the Committee
appears to have permitted them hedged with conditions to subserve the purpose.
But none should be permitted to sully the reputation, integrity or conduct of
the Judge concerned by subsequently fabricating any material or adduction of
evidence de hors the one already placed before the Speaker who transmitted to
the Committee or the one summoned by the Committee. The contention of Sri Shanti
Bhushan that 108 members who moved the motion are interested to participate and
prove the charges against the Judge runs counter to the scheme of the Act and
the Rules and does not warrant acceptance. The political process starts only
with the requisite members of the Parliament moving the motion and it is the
only mode to set in motion the process to remove a Judge. Undoubtedly, they are
people's representatives but the law makers did not preserve to themselves the
role of the prosecutor but assigned it to the Advocate appointed under section
3(9) and referred to the Speaker to set up the committee to investigate into the
misbehaviour since the constitution had already preserved their right to
participate in the address to the President on the floor of each House of the
Parliament to discuss the conduct of the Judge. Their statutory obligation under
section 3(1) was to state the grounds to move the motion praying for removal of
the Judge with requisite majority; and to lay the evidence before the
Speaker/Chairman. Their right to participation would revive only when the report
and the evidence with finding/findings that the misbehaviour or incapacity has
been proved was laid on the floor of the House and discussion was initiated
under Article 124(4) and the Rules.
51. This statutory and constitutional setting and larger public interest
finishes unerring source to conclude that no third party has right to barge or
butt in the proceedings and that none be permitted to participate in the
investigation nor entitled to adduce evidence for or against the Judge. It is
the Judge and the Advocate alone to participate and prove or disprove the
charge/charges and be heard. No one except the Judge, in the event of an adverse
finding of guilt and none, when the Judge was absolved of the charge/charges, be
permitted to assail the correctness, legality or validity of the proceedings,
process or findings of guilt or not guilty. None has rights or interest with
askance eye to parade the correctness of the proceedings or conclusions of the
Committee, nor to avail judicial review.
52. The further contention that the procedure under the Commissions of
Enquiry Act of public notice inviting evidence against the Judge from any person
who had in his possession gets crushed from the teeth of the built in procedure
prescribed in the Act and the Rules. Lest it would be, as stated earlier, an
open invitation to the disgruntled to place fabricated evidence and it would
fraught with grave dangers, endless investigation and protection for publicity
seedling insidious effects. It is transparent from the scheme that any evidence
sought to be used against the Judge must be laid by the requisite members of the
house of people or Rajya Sabha before the Speaker/Chairman and none be permitted
thereafter. Take for instance that in the motion the grounds of misbehaviour
with material facts or particulars were made and photostat copies in support
thereof were enclosed. To satisfy and ensure correctness, authenticity and
reliability the Enquiry Committee may summon the original records even before
framing a charge. On a charge of corruption the grounds with material
particulars were mentioned and the source was also specified. But there may not
be any documentary evidence, in support thereof, often would not available, or
the person may not be willing to commit himself before hand. The Committee has
discretion depending upon the nature of the source or dependability or
reliability to frame a charge or may summon the person to swear to an affidavit
and later may be examined as a witness or a tender ocular evidence at the
investigation and be subjected to cross- examination. Suppose the grounds of
corruption are delightfully vague bereft of particulars and the source was not
specified, it may be that the Committee may not feel it expedient to frame even
a charge. Suppose even when the details and source were specified in the
grounds, but if the Committee feels that the source is highly doubtful,
undependable, etc. it may be open to the Committee to refrain to frame a
charge/charges. It is, thus, clear that the Act left wide discretion to the
Committee to device its own procedure and adopt its own function during the
investigation to discover and collect the evidence. This perspective leads to
conclude that the permission granted to M/s George Fernandez and Jaswant Singh
and SCJA is illegal and without authority of law and jurisdiction. Any adverse
evidence against the learned Judge placed or adduced by them which was not
already part of the record of the Speaker, should be expunged, should not be
considered and be excluded from the record of evidence of the Committee.
53. Equally, the contention that procedure envisaged in Section 3(3), (4) and
Section 4 are unconstitutional and ultra vires of the Article 124(4) of the
Constitution is misconceived. Article 124(4) of the Constitution postulates that
the Judge of the Supreme Court/High 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
majority not less than two-thirds of the members of the House present and voting
has been presented to the President in the same session for such removal, on the
``ground of proved misbehaviour or incapacity.'' Sub-Article (5) thereof
regulates by law the procedure for the presentation of the address and for the
``investigation and proof of misbehaviour or incapacity of the Judge.'' In
exercise of the power under Article 124(5) read with Article 246(1) and entry 77
of List I of VIIth Schedule to the Constitution, the Act was made.
54. Under Section 3(1) the motion for removal of the Judge must contain ``the
grounds on which the removal of the Judge was prayed for.'' It is obvious that
the grounds are based on sufficient material or evidence. Section 3(3) envisages
that ``the committee shall frame definite charges against the Judge ``on the
basis of which the investigation is proposed to be held.'' Sub-section (4)
thereof contemplates of communication in Form I of the Rules, of those
charge/charges so framed, together with a statement of the grounds on which each
such charge is based. On consideration of the grounds and the material or
evidence in the motion the definite charge/charges are to be framed which is the
foundation to start investigation to prove the charges. Members of the
Parliament are not familiar to or versed with the process or distinction between
grounds and charge. They need to state the grounds and it is the duty of the
committee to scan the evidence or material and to frame definite charge or
charges. A reasonable opportunity for presentation of the written statement of
the defence within a specified time should be given to the Judge who has right
to the object in writing to the sufficiency of the framed charges. If the
objection is sustained, the Committee would amend the charges under Section 3(8)
read with Rule 7; and the Judge be given reasonable opportunity to present fresh
written statement. If the Judge admits that he is guilty of misbehaviour or
suffers from incapacity, the Committee shall record such admission and may state
its finding on each of the charges in accordance with such admission [Rule
7(1)]. If the Judge denies the charge/charges or refused or omits or is unable
to plead or desires that the Committee shall proceed with the enquiry under
Section 4(1). If the Judge does not appear, on proof of service as per rule 8,
the Committee may proceed with the enquiry ex parte. Under Section 3(9) the
Central Govt. may appoint at the request of the Speaker/Chairman an Advocate to
conduct the case against the Judge. Rule 11(1) gives the Judge the right to
consult and be defended by an Advocate of his choice like Article 22(1) of the
Constitution. Section 5 gives the committee all the powers of the Civil Court
while trying a suit under the Code of Civil Procedure, 1908, to summon the
witnesses required, discovery and production of the documents, to receive
evidence on oath, issue commissions for the examination of witnesses or
documents or such other matters as may be prescribed. The advocate obviously
should examine witnesses under section 4(1) to prove the case against the Judge
with an opportunity to the latter to cross-examine those witnesses; and
adduction of his own evidence in rebuttal and an opportunity of hearing in his
defence. Under Section 4(2) read with Rule 9, at the conclusion of the
investigation, the committee should submit to the Speaker a report with its
findings on each charge separately if there are more than one with such
observations on the whole case as it thinks fit. If the report is not unanimous
as per sub-rule (1) of Rules 9 majority view in terms of sub-rule (4) thereof
should be communicated. If the majority finds that the charges are not proved
and one member found the misbehaviour or incapacity proved it should be kept
confidential and withheld to the Parliament or any other authority, body or
person. Under Rule 10, the evidence of each witness examined by the Committee
should be taken down in writing and under the personal dictation and
superintendence of the Presiding Officer thereof. The provisions of the Civil
Procedure Code shall, as far as may be, apply for the examination of any witness
in the inquiry. The majority finding of guilt forms the base for report. The
evidence and the documents together with report of proved misbehaviour/incapacity
should be laid before each House of the Parliament along with the report and
evidence and minority contra view sent under Section 4(2).
55. A resume of the fascicule of these provisions would show that the
committee has been empowered to regulate its own procedure, as is exigible based
on fact situation, to make investigation into the charge/charges of the
misbehaviour or incapacity of the Judge consistent with the Act, Rules and fair
play like the trial of a civil suit. If the Committee finds that there is no
prima facie evidence to frame even charges, the need to proceed further into the
charge/charges is obviated. It would be entitled to record findings together
with a statement of general observations of the case and would submit its report
that the record or facts does not warrant even to frame charge or charges or
investigation a futile exercise and retransmit the record to the Speaker in
terms of the Act and the Rules. Framing of charges is thus the foundation for
investigation. By necessary implication it excludes the adaptation of
inquisitorial process. If the committee finds prima facie case it would be open
to it to frame definite charge/charges and would ensue follow up action. The
power under Section 3(5) is to summon the original record from proper custody or
any record in support of the charges and sought to be relied on or witness to
prove the charges and given an opportunity to the Advocate and the Judge to
examine their witnesses to prove/disprove the respective case. By necessary
deduction it is not a condition precedent to follow inquisitorial procedure as
an initial step and thereafter to have adversorial enquiry. The power of the
Committee to summon the record is to supplement the material placed before the
Speaker/Chairman by original record or other necessary evidence/witness but not
to supplant any new material unrelatable to the grounds in the motion or charges
framed. The witnesses summoned or examined on commission are to prove as a fact
the charges made against the Judge. The investigative power granted to the
administrative agencies normally is inquisitorial in nature but the Act devised
a special media or modus keeping the judicial independence beyond the ken of
coloured visions and entrusted the power of investigation only to High Power
Judicial Committee consisting of a sitting Judge of the Supreme Court, a sitting
Chief Justice of a High Court and a distinguished Jurist, in one word a high
``Judicial authority.'' The proceedings before the Committee is neither civil
nor criminal but sui generis.
56. The appointment of the Advocate at the behest of the Speaker/Chairman was
to prove the charged misbehaviour/incapacity against the Judge. He presumptively
acts on behalf of the Speaker like a counsel for the plaintiff without any hold
or control by the Speaker and would assist the Committee as an independent
agent. The Committee while making investigation does not act like a prosecutor
nor itself would lead evidence against the Judge but acts akin to a Civil Court.
The Speaker/Chairman also has no say or sway during investigation into the
alleged misbehaviour of the Judge. The Committee has only statutory duty to
submit to the Speaker its report and the evidence at the conclusion of the
investigation.
57. The investigation done by the Committee, thus is to find whether the
alleged misbehaviour/incapacity has been proved. Undoubtedly, the public law
litigation often contradicts the premise behind those of private law. In public
law wider public interest is involved over and beyond the contending parties. It
concerns the future and private law litigation is retrospective in operation.
Prof. Wade in his Administrative Law, 5th Edn. at p. 803 has stated that :
``It is fundamental that the procedure before a tribunal, like that in a
court of law, should be adversary and not inquisitorial. The tribunal should
have both sides of the case presented to it and should judge between them,
without itself having to conduct an inquiry of its own motion, enter into the
controversy and call evidence for or against either party. If it allows itself
to become involved in the investigation and argument, parties will quickly lose
confidence in its impartiality, however fair minded it may in fact be.''
58. The word `investigate' was defined in Black's Law Dictionary, 6th
Edition, at p. 825 thus :
``To follow up step by step by patent inquiry or observation. To trace or
track; to search into; to examine and inquire into with care and accuracy; to
find out by careful inquisition; examination; the taking of evidence; a legal
inquiry.''
59. The word `investigation' was defined at p.825 thus :
``The process of inquiring into or tracking down through inquiry.''
The word `proof' was defined at p. 1215 thus :
``The effect of evidence; the establishment of a fact by evidence. Any fact
or circumstance which leads the mind to the affirmative or negative of any
proposition. The conviction or persuation of the mind of a judge or jury, by the
exhibition of evidence, of the reality of a fact alleged. The establishment by
evidence of a requisite degree of belief concerning a fact in the mind of the
trier of fact or the court .......
Proof is the result or effect of evidence, while evidence is the medium or
means by which a fact is proved or disproved, but the words ``proof'' and
``evidence'' may be used interchangeably. Proof is the perfection of evidence;
for without evidence there is no proof, although there may be evidence which
does not amount to proof; for example, if a man is found murdered at a spot
where another has been seen walking but a short time before, this fact will be
evidence to show that the latter was the murderer, but, standing alone, will be
very far from proof of it.''
60. The Committee as Judicial authority adopts the procedure of a trial of a
civil suit under the Code of Civil Procedure; It is not inquisitorial but
adversary to search for the truth or falsity of the charge/charges by taking
evidence during the investigation like a trial of a civil suit and it should be
the duty of the Advocate and the learned Judge, or his counsel to prove/disprove
if burden of proof rests on the Judge, as a fact by adduction of evidence or the
affirmation or negation or disproof of the imputation under investigation. The
word `investigation' is to discover and collect the evidence to prove the charge
as a fact or disproved. The Evidence Act defined the words ``proved'' and
``disproved'' as when after considering the matters before it, the court either
believes the fact to exist or not to exist or its existence is so probable
non-existence is probable and the test of acceptance or non acceptance by a
prudent man placed in the circumstances of a particular case was adopted. The
consideration of the evidence is like a criminal case as the finding would be
guilty or non-guilty of misbehaviour under section 6 of the Act. The test of
proof is ``proof beyond reasonable doubt.'' The words investigation and inquiry
used in Article 124(5), the Act and the Rules are interchangeable and do not
take different colours from varied contexts but connote the same theme to
prove/disprove misbehaviour or incapacity charged against the Judge beyond
reasonable doubt.
61. The problem could be broached through a different perspective as well. In
normal parlance, in a criminal case, investigation connotes discovery and
collection of evidence before charge-sheet is filed and based thereon definite
charges are framed. Enquiry by a Magistrate is stoped when the trial begins. The
trial is a culminating process to convict or acquit an accused. In Service
Jurisprudence, departmental enquiry against a delinquent employee, bears similar
insignia to impose penalty. At the investigation stage the accused or the
charged officer has no say in the matter nor entitled to any opportunity. The
disciplinary authority or enquiry officer, if appointed, on finding that the
evidence discloses prima facie ground to proceed against the delinquent officer,
the enquiry would be conducted. The criminal court frames charges after
supplying the record of investigation relied on. Equally, the disciplinary
authority/inquiry officer would frame definite charge or charges and would
communicate the same together with a statement of the facts in support thereof
sought to be relied on and would call upon the delinquent officer to submit his
explanation or written statement of defence etc. At the trial/enquiry the person
is entitled to reasonable opportunity to defend himself. The higher judiciary
holds the office of constitutional responsibility and is a constitutional
functionary. His conduct is not subject to any discussion, under Article 121 on
the floor of Parliament. Therefore, no-one is entitled even to act as plain
clothes spy to try into his/their conduct to set rumours afloat. If it would be
otherwise, the disgruntled would concoct stories, cock into the ears and pass on
as palpably palatable truth either to deter or demoralise an upright,
indomitable and unamenable Judge. When definite material or evidence was placed
before the Speaker of the House of the People or Chairman of the Rajya Sabha,
the Speaker/Chairman, on due satisfaction as stated hereinbefore, that the
ground/grounds needs investigation, would admit the motion and transmit the
record to the Committee i.e. high Judicial authority for investigation into the
alleged misbehaviour. The investigation contemplated in Article 124(4) of the
Constitution or investigation or inquiry envisaged in the Act are synonymous and
interchangeable, as has rightly been contended by Sri. Nariman.
62. The behavioural discipline of a Judge is an integral component of
judicial independence. Admission of the motion is a statutory function.
Investigation into misbehaviour or incapacity of the Judge though integral part
of composite scheme to remove an erring Judge through political process, the
proceedings before the Committee is purely judicial with all its indiciat as the
C.P.C. was expressly made applicable. The Constitution, the Act and the rules
aimed to discipline the discipled when gone astray so as to establish the
supremacy of law so that the pure flames of public administration of justice
always burning bright and aloft. Thereby it would balance the competing
interests of independence of the judiciary and accountability. The makers of the
Act after a great deal of deliberations made an admixture or amalgam of
political and judicial process to remove an erring Judge atune to the
constitutional creed and left the choice to the high judicial authority to adopt
its own procedure to investigate into the charges of misbehaviour while adhering
to the scheme of the Act, the Rules and fair play. The removal of a Judge is
paved by a judicial verdict after following fair and just procedure. It is,
therefore, most efficacious, most salutary and the best mode in vogue in the
world's democratic countries to uphold independence of the judiciary. Thus it
must be held that the Act and the Rules provided built-in fair procedure to
prove the alleged misbehaviour or incapacity of a Judge. It is akin to
adversorial and trial of a civil suit and the Committee acts as an independent
``Judicial statutory authority.'' The provisions are consistent with Articles
124(4), 14 and 21 of the Constitution of India and they are not ultra vires
of the constitution.
63. The contention of Sri Altemeas Rein that since the learned Judge, on his
elevation as a Judge of the Supreme Court, had vacated his office as Chief
Justice of the Punjab and Haryana High Court, the alleged misbehaviour, if any,
would cease to be relevant and that his conduct, i.e. his misbehaviour as a
Judge of the "Supreme Court alone would be subject matter of the motion and
investigation, would stand to no minute scrutiny. Undoubtedly, by operation of
Article 217(C) of the Constitution, the learned Judge had vacated the office as
Chief Justice of the Punjab and Haryana High Court on October 6, 1989, the day
on which he assumed the office as a Judge of the Supreme Court. What is relevant
is the behaviour as a Judge while discharging his duties of the office of the
Judge, i.e. Chief Justice of the Punjab and Haryana High Court. What is
pertinent in a motion for removal of the Judge is his/her misbehaviour or
incapacity. For the efficacy of the judicial adjudication and peoples faith in
the rule of law, people must have absolute faith and confidence in the honesty,
integrity, impartiality, courage, and independence, of the Judge. So, upright
and resolute conduct of the presiding Judges of the Court is imperative. If that
faith and confidence is in any way shaken or shattered, the legitimacy of the
very system of Govt. is tainted and the consequences will be disastrous. So long
as one holds the judicial office, the above conduct remains germane and
relevant. Any imputation of misbehaviour through a valid motion admitted by the
Speaker needs investigation. The elevation of a High Court Judge to the Supreme
Court is only an elongation of the judicial functions in the apex court with the
same judicial fervour. From this perspective, the alleged misbehaviour of the
learned Judge, if proved, would remain germane, even while the learned Judge is
a Judge of this court. It would thus not be difficult to discount the contention
of the learned Advocate as of no substance.
64. The meaning of the word `misbehaviour' in Article 124(4) of the
Constitution is the crux of the question. Before embarking into the question, it
is necessary to gaze the founding father's animation and anxiety to wean away or
ward off or disabuse the executive mind of the judges of the constitutional
courts in judicial review. Article 124(2) of the Constitution fixes their
tenure. Article 125 read with Schedule II guarantees him/her undiminished
salary, privileges and perks prevalent on the date of assumption of office as a
Judge and during the tenure. Article 124(4) assures irremovability from office,
except for ``proved misbehaviour or incapacity'' in accordance with the
procedure therein, the Act and the Rules. Articles 121 then lifts the rigour of
the total ban of public discussion against the conduct of the Judge only when
the finding of proved misbehaviour or incapacity was recorded by the Committee;
the report together with the evidence, the source material for discussion, was
laid on the floor of each House of Parliament under section 6 of the Act read
with Rule 9(5) of the Rules and discussion was initiated, that too of the
concerned Judge. The process for removal of the Judge had initiation from
statutory process but finding of ``proved misbehaviour'' was recorded by
Judicial process and final act of removal by the President was after an address
on the floor of each House of Parliament as political process determined by
majority resolution as enjoined by Article 124(4) of the Constitution.
Obviously, Article 121 accords to the members of the Parliament full freedom to
discuss the conduct of the Judge vis-a-vis proved misbehaviour and may concur
with the committee or vote down the motion i.e. the presumptive finding is that
the charge is deemed to have been proved or disproved under section 6(3) or even
if proved facts do not warrant to remove the Judge. Otherwise, there is a total
ban on the discussion on the conduct of any Judge/Judges in the discharge of
his/their duties. Resolution passed by majority in the manner laid by Article
124(4) is the foundation for the President to pass an order removing the Judge
from his office.
65. The underlying insulation and pervasion is to secure judicial
independence to the Judge to do that should be just, equitous, fair or fit for a
Judge to do. The reason is that the Judge is to make judicial review not only
between citizen and citizen but also between the Executive Authority and the
citizen or the State inter se or the Centre and the State. When the right of a
citizen is attacked from any quarter or his claim is denied or is wronged, the
judiciary alone should punish the wrong doer or restore the violated right or
redress the legal injury. Stronger weapon in the armoury of judiciary is the
confidence it commands and faith it inspires and generates in the public in its
capacity to do even handed justice and keep the scale in balance in any dispute.
The judiciary is thus the custodian and guardian of the rights of the citizen.
It should, therefore, be independent, impartial and incorruptible. It should
have the courage, uprightness and conviction to do his/her duty in terms of the
oath.
66. It could be pondered over in tune with constitutional philosophy.
Judicial review is the touch stone and repository of the supreme law of the
land. Rule of law as basic feature permeates the entire constitutional
structure. Independence of the judiciary is sine quo non for the efficacy of the
rule of law. This court is the final arbiter of the interpretation of the
Constitution and the law. It has to maintain the delicate balancing wheel of the
whole constitutional system keeping the Executive and the Legislature within the
confines of their power and jurisdiction and also check their excesses and
declare ultra vires of their powers and actions while keeping a self-check. The
independence of the judiciary in the scheme is essential to establish real
parliamentary democracy and maintenance of rule of law to usher in an
egalitarian social order, removing the existing imbalances, social and economic
inequalities, assuring liberty, equality fraternity and the further justice -
social, economic and political with dignity of the persons and fraternity to
integrate Bharat. Independence of judiciary thus constitutes the cornerstone and
the foundation on which our democratic polity itself is to rest and work on
sound principles.
67. To keep the stream of justice clean and pure, the judge must be endowed
with sterling character, impeccable integrity and upright behaviour. Erosion
thereof would undermine the efficacy of the rule of law and the working of the
Constitution itself. The Judges of higher echelons, therefore, should not be
mere men of clay with all the fralities and foibles, human failings and weak
character which may be found in those in other walks of life. The judges of
higher judiciary should be men of fighting faith with touch fibre not
susceptible to any pressure, economic, political or any sort. The actual as well
as the apparent independence of judiciary would be transparent only when the
office holders endow those qualities which would operate as impregnable fortress
against surreptitious attempts to undermine the independence of the judiciary.
In short the behaviour of the Judge is the bastion for the people to reap the
fruits of the democracy, liberty and justice and the antithesis rocks the bottom
of the rule of law.
68. From this constitutional orientation, let us plough the seeds or roots of
causation of ``misbehaviour'' in Article 124(4). The Constitution or the Act,
obviously, gave no definition of misbehaviour. In Corpus Juris Secundum 1 Volume
58, the word ``Misbehaviour'' was defined as conduct, improper or unlawful
behaviour. It has been held to be synonymous with misconduct. The words and
phrases as judicially defined in Volume 3, ``Misbehaviour'' has been defined as
``outrageous or improper conduct.''
69. Black's Law Dictionary, 6th Edition, p. 998, defined `misbehaviour' as
``ill conduct, improper or unlawful behaviour. `Misconduct' was defined at p.
999 as ``A transgression of some established and definite rule of action, a
forbidden act, a dereliction from duty, unlawful behaviour, wilful in character,
improper or wrong behaviour; its synonyms are misdemeanor, misdeed, misbehaviour,
delinquency, impropriety, mismanagement, offence, but not negligence or
carelessness. `Misconduct in office' was defined as ``Any unlawful behaviour by
a public officer in relation to the duties of his office, wilful in character.
Term embraces acts which the office holder had no right to perform, acts
performed improperly, and failure to act in the face of an affirmative duty to
act.''
70. In Encylopedic Law Dictionary, 3rd Edition, at p. 720 `misbehaviour' was
defined as ``improper or unlawful conduct, generally applied to a breach of duty
or propriety by an officer, witness, etc, not amounting to a crime. P.
Ramanathan Aiyar's `The Law Lexicon, Reprint Edition, 1987 defines `misbehaviour'
at p. 820 as ``ill conduct; improper or unlawful behaviour. `Misconduct' was
defined at p. 821 as ``the term ``misconduct'' implies a wrongful intention, and
not a mere error of judgment. Misconduct is not necessarily the same thing as
conduct involving moral turpitude.'' The word `misconduct' is a relative term,
and has to be construed with reference to the subject matter and the context
wherein the term occurs, having regard to the scope of the Act or statute which
is being construed. `Misconduct' literally means wrong conduct or improper
conduct.'' `Misconduct in office' was defined as ``unlawful behaviour or neglect
by a public officer, by which the rights of a party have been affected.''
71. Every act or conduct or even error of judgment or negligent acts by
higher judiciary per se does not amount to misbehaviour. Wilful abuse of
judicial office, wilful misconduct in the office, corruption, lack of integrity,
or any other offence involving moral turpitude would be misbehaviour. Misconduct
implies actuation of some degree of mense rea by the doer. Judicial finding of
guilt of grave crime is misconduct. Persistent failure to perform the judicial
duties of the judge or wilful abuse of the office dolus malus would be
misbehaviour. Misbehaviour would extend to conduct of the Judge in or beyond the
execution of judicial office. Even administrative actions or omissions too need
accompaniment of mense rea. The holder of the office of the judge of the Supreme
Court or the High Court should, therefore, be above the conduct of ordinary
mortals in the society. The standards of judicial behaviour both on and off the
Bench are normally high. The falling moral or ethical standards in the society
are no ruse nor refuse to slacken the higher standards of judicial conduct. The
society, therefore, is entitled to expect higher degree of propriety and probity
in the judicial conduct from higher judiciary. There cannot be any fixed or set
principles, but an unwritten code of conduct of well established traditions are
the guidelines for judicial conduct. The conduct that tends to undermine the
public confidence in the character, integrity and impartiality of the judge must
be eschewed. It is expected of voluntarily setting forth wholesome standards of
conduct reaffirming fitness to higher responsibilities. Even the private life of
a judge must adhere to standards of probity and propriety, acceptable to others.
They alone would receive confidence and respect from the public. This legal
setting would furnish the foundation to focus the question whether the learned
Judge had committed financial improprieties or irregularities undermining the
above standards in his administrative disposition and whether would constitute
misbehaviour is to be angulated and findings given from the proved evidence by
the Committee. Such finding of proved misbehaviour, undoubtedly be subject to
requisite majority voting and when voted would become ``deemed proof under
section 6(3)'' for removal under Article 124(4). Then alone, the finding of
proved misbehaviour deemed accepted and would become final. If the motion is
voted down, by necessary implication, the finding of the committee stands
disproved and rejected.
72. We are alive to the fact that declaration of law would be laid only to
apply it to the facts of the case on hand for or not granting the relief. The
facts of the case presented an extra-ordinary scenario. The Constitution or the
Act did not define `misbehaviour'. Several International forums for judicial
independence suggested to define misbehaviour but to no avail. No legislature in
any democratic country attempted to do so as it would appear to be difficult to
give a comprehensive definition to meet myriad situations. The scope of judicial
review after the committee records findings that the misbehaviour has been
proved would appear to be fraught with imponderables. The occasion for judicial
review would scarcely arise. There are no set rules of conduct. The law laid by
this court under Article 141 of the Constitution is the law of the land. Under
these diverse circumstantial constraints I undertook to survey and declare the
law and left it for its application by the committee to the proved facts.
73. Though Sri Sibal attempted to argue on merits, on the grounds of
violation of the principles of natural justice for non-supply of needed
documents etc., I refrain to go into the diverse questions. Firstly, the reliefs
sought are personal in nature to the learned Judge. He alone should seek and
none else be permitted to assail. In a proceeding of this or the like or of
departmental enquiry or a criminal matters no one except the person aggrieved is
entitled to ventilate the grievances regarding the legality, propriety,
correctness or otherwise of the charges, the procedure the Committee adopted or
the findings recorded therein. If the law permits suo motu inherent exercise of
power and the facts warrant exercise of the power, it would be open to the
court/tribunal in an appropriate case, to do public justice, may correct the
same. Secondly, investigation since been completed and the report is ready, I am
sure the learned members with their rich and variegated experience, must have
subjected of consideration and reacted their findings. Even if otherwise a fresh
look in this light, if need be, may not be surplusage but assuages an
reassurance of the confidence. So it is for the Committee to look into and if
need be afresh. This court cannot trench into that area. If the findings are
positive they would be subject to political process of discussion on the floor
of the each House of Parliament and resolution per majority.
74. The writ petition is accordingly allowed to the extent of the above
declarations and we direct the Registrar General to address a letter to the
Committee with a request to exclude the entire adverse evidence or record
against the learned Judge placed either by M/s George Fernandez, Jaswant Singh
or the Sub Committee on Judicial Accountability, except the one part of the
record sent by the Speaker. In other respects, subject to the above declaration
of law the writ petition stand dismissed. But in the circumstances, without
costs.
ORDER
75. The Writ Petition is dismissed in accordance with the majority opinion.