Sarojini Ramaswami vs Union Of India & Ors on 27 August, 1992

           CASE NO.:
Writ Petition (civil)  514 of 1992

PETITIONER:
SAROJINI RAMASWAMI 

RESPONDENT:
UNION OF INDIA & ORS. 

DATE OF JUDGMENT: 27/08/1992

BENCH:
J.S. VERMA & N.M. KASLIWAL & K. RAMASWAMY & K.J. REDDY & S.C. AGRAWAL

JUDGMENT:

JUDGMENT

1992 AIR 2219 = 1992 (1)Suppl.SCR 108 = 1992 (4) SCC 506 = 1992(5) JT 1 =
1992(2) SCALE 257

(Under Article 32 of the Constitutions of India)

The Judgment was delivered by : Hon’ble Justice J. S. Verma, Hon’ble
Justice K. Jayachandra Reddy and Hon’ble Justice S. C. Agrawal

J. S.VERMA, J. (for himself and on behalf of K. Jayachandra and S. C.
Agrawal, JJ.) (Majority view):-

1. The person entitled to seek judicial review and the stage at which it is
available against the findings of the Inquiry Committee constituted under
Section 3(2) of the Judges (Inquiry) Act, 1968 (hereinafter referred to as
‘the Act’) in accordance with the law declared in Sub-Cornmittee on
Judicial Accountability v. Union of India, (1991) 4 SCC 699 is the
question for decision in this writ petition. According to the petitioner,
the remedy of judicial review is available to the concerned Judge against
the finding, if any, by the Inquiry Committee that the learned Judge is
‘guilty’ of misbehaviour only prior to submission of the report of the
Committee to the Speaker – in accordance with Section 4 (2) of the Act or
latest till it is laid before the Parliament as required by Section 4(3) of
the Act, but not thereafter. Accordingly, the petitioner claims that a copy
of the report should be furnished to the concerned Judge before it is
submitted to the Speaker, to preserve the right of the Judge to seek
judicial review of the finding of ‘guilty’, if any, in the report. The
merit of this submission is considered herein.

2. The petitioner is the wife of Mr. Justice V. Ramaswami, a sitting Judge
of the Supreme Court of India. In this writ petition under Article 32 of
the Constitution of India, certain constitutional issues have been raised
which are to be decided on the construction of Article 124 of the
Constitution of India and the Judges (Inquiry) Act, 1968 read with the
Judges (Inquiry) Rules, 1969 framed thereunder, in the background of the
law declared in Sub-Committee on Judicial Accountability v. Union of India,
(1991) 4 SCC 699 In essence, this petition is a sequel to that earlier
decision rendered in the context of the proceedings for removal of Mr.
Justice V. Ramaswami from the office of a Judge of the Supreme Court of
India.

3. Certain allegations of financial improprieties and irregularities were
made against Mr. Justice V. Ramaswami in his capacity as the Chief Justice
of the High Court of Punjab and Haryana prior to his appointment in October
1989 as a Judge of the Supreme Court of India by 108 members of the Ninth
Lok Sabha by a notice of motion for presenting an address to the President
for the removal from office of Mr. Justice V. Ramaswami. On March 12, 1991,
the motion was admitted by the Speaker of the Ninth Lok Sabha who also
proceeded to constitute a Committee consisting of Mr. Justice P. B. Sawant,
a sitting Judge of this Court, Mr. Justice P. D. Desai, Chief Justice of
the High Court of Bombay and Mr. Justice O. Chinnappa Reddy, a retired
Judge of this Court as a distinguished jurist in terms of Section 3(2) of
the Judges (Inquiry) Act, 1968. On dissolution of the Ninth Lok Sabha, the
Union Government was of the view that the notice of motion given by 108
members of the Ninth Lok Sabha for presenting an address to the President
for removal of the learned Judge as well as the decision of the Speaker of
the Ninth Lok Sabha to admit the motion and constitute a Committee under
the provisions of the Act had lapsed with the dissolution of the Ninth Lok
Sabha. Accordingly, the Union Government abstained from acting in aid of
the decision of the Speaker to notify that the services of the two sitting
Judges on the Committee would be treated as ‘actual service within the
meaning of para 11(b)(i) of Part D of the Second Schedule to the
Constitution to enable them to function as members of the Committee.
Important constitutional issues as to the status of a motion for the
removal of a Judge under the Act made pursuant to Article 124(5) of the
Constitution and applicability of the doctrine of lapse to such a motion
upon the dissolution of the Lok Sabha together with the connected questions
including the justiciability thereof in a Court of law arose in these
rather unfortunate circumstances.

4. A body called the “Sub-Committee on Judicial Accountability” represented
by a Senior Advocate of this Court as its Convener filed Writ Petition No.
491 of 1991 and the Supreme Court Bar Association filed Writ Petition No.
541 of 1991 in this Court under Article 32 of the Constitution. The common
prayers in both the petitions were for a direction to the Union of India to
take immediate steps to enable the Inquiry Committee to discharge its
functions under the Act; and to restrain the Judge concerned Mr. Justice V.
Ramaswami from performing judicial functions and exercising ‘judicial
powers during the pendency of the proceedings before the Committee. The
decision rendered therein by a Constitution Bench is Sub-Committee on
Judicial Accountability v. Union of India, (1991) 4 SCC 699

5. The Constitution Bench by a majority of 4: 1 held that a motion under
Section 3(2) of the Act does not lapse upon the dissolution of the House.
The majority opinion concluded as under:-

“All that is necessary to do is to declare the correct constitutional
position. No specific writ or direction need issue to any authority. Having
regard to the nature of the subject matter and the purpose it is ultimately
intended to serve all that is necessary is to declare the legal and
constitutional position and leave the different organs of the State to
consider matters falling within the orbit of their respective jurisdiction
and powers”

6. The controversy before the Constitution Bench in those matters was so
decided and Writ Petitions Nos. 491 and 541 of 1991 were disposed of by the
appropriate declarations of the law as contained in the judgment.

7. After declaration of the legal and constitutional position in this
behalf on the points in controversy in the above decision, the Union of
India took the necessary steps to act in aid of the decision of the Speaker
of the Ninth Lok Sabha and the requisite notification was also issued in
respect of the two sitting Judges of the Committee as required by para
11(b)(i) of Part D of the Second Schedule to the Constitution of India. The
Committee constituted by the Speaker under the Act then proceeded to
inquire into the allegations made against the Judge concerned Mr. Justice
V. Ramaswami and, as intimated at the hearing of this petition, the
Committee has completed the Inquiry and also prepared its Report for being
submitted to the Speaker of the Lok Sabha as required by Section 4(2) of
the Act.

8. The learned Judge Mr. Justice V. Ramaswami sent a letter dated May 10,
1992 to Mr. Justice P. B. Sawant, Presiding Officer of the Inquiry
Committee, requesting that a copy of the report of the Committee be
forwarded to him giving him sufficient time to seek redress in a Court of
law, if required or necessary, as a result of the findings of the
Committee: He was sent a reply by the Secretary to the Committee by letter
dated May 15, 1992. These letters are collectively marked Annexure 1 to the
petition. They are reproduced as under:-

“Justice V, Ramaswami Judge, Supreme Court 2, Teenmurthi Marg New Delhi-
110011

May 10, 1992

Hon’ble Mr. Justice P. B. Sawant Presiding Officer

Committee Appointed under the Judges (Inquiry) Act, 1968 433 Parliament
House Annexe

New Delhi 110001.

Sir,

I am informed that the Committee is resuming its sittings for further
examination of witnesses on May 11, 1992. My counsel Shri Ranjit Kumar, who
was present in Court during the course of the hearing in Writ Petition No.
149 of 1992 in the Supreme Court of India, learnt that only 5 or 6
witnesses remain to be examined and that thereafter the matter will be
fixed for arguments. As the Committee will be sitting from May 11, 1992
onwards, presumably the entire process will be completed during the period
when the Hon’ble Supreme Court is closed for summer vacation. My advocate
also learned that the Hon’ble Speaker has extended the date for the
Committee to furnish its report under the Judges (Inquiry) Act, 1968 till
July 31, 1992. I, therefore, assume that prior to that date the report will
be furnished to the Hon’ble Speaker. The Hon’ble Supreme Court in its
judgment on Sub-Committee on Judicial Accountability v.Union of India,
(1991) 4 SCC 699 has held that the Committee under the Judges (Inquiry)
Act, 1968 is a statutory committee and from the time it commences its
proceedings till its report is placed before Parliament, its proceedings
are deemed to be outside Parliament and, therefore, subject to judicial
review.

As the Committee is required to render its findings in respect of the
various charges framed against me, I would like to be supplied a copy of
the report well in time to entitle me to challenge the same by filing
appropriate proceedings, in the event any findings are rendered against me.
A reading of the Constitution Bench’s judgment would suggest that such an
opportunity would be available to me since the Committee functions as a
Tribunal outside Parliament. I, therefore, do not expect the Committee to
render infructuous this valuable constitutional right, in the event its
report is adverse to me, by submitting it in haste to the Hon’ble Speaker,
who might place it before Parliament when in session. Recourse to such a
procedure would not only be in violation of my constitutional right to
receive the report but would be violative of natural justice, since I
would, in that situation, be pre-empted from challenging the report in an
appropriate forum.

I am writing to you well in advance so that upon completion of the report,
a copy is forwarded to me forthwith and sufficient time is granted to me to
seek redress in a Court of law, if required or necessary. Naturally, you
would, therefore, in forwarding a copy of the report to me, withhold the
forwarding of the said report to the Hon’ble Speaker, simultaneously. I,
therefore, expect that you would be responding to this request of mine very
soon, since any delay in this regard would be extremely prejudicial to my
interests and would tend to defeat even the limited right granted to me by
the judgment of the Hon’ble Supreme Court. Kindly respond to this request
of mine within a couple of days of your receiving this letter.

Thanking you,

Yours sincerely,

Sd/-

(V. Ramaswami)”

“Committee Appointed under the Judges (Inquiry) Act, 1968 433, Parliament
House Annexe

New Delhi-110001

No. 17/17- CB-11/91 May 15, 1992

From:

S. C. Gupta, Secretary

To

Hon’ble Mr. Justice V. Ramaswami, Judge,

Supreme Court of India,

2 Teen Murti Marg,

New Delhi- 110011.

Sir,

With reference to your letter dated 10th May, 1992 addressed to the
Presiding Officer, 1 am to inform you that counsel for the Committee
brought your letter to the attention of the Constitution Bench which is now
seized of the matter, during the hearing on 14th May, 1992 in Writ Petition
No. 149 of 1992, stating that the Committee will abide by any directions
that may be given in this regard by their Lordships in the said case.

Yours faithfully,

Sd/- S. C. Gupta

Secretary”

9. The petitioner, Smt. Sarojini Ramaswami, wife of Mr. Justice V.
Ramaswami, has filed this writ petition on July 6, 1992 after receipt of
the letter dated May 15, 1992 by Mr. Justice V. Ramaswami from the
Secretary to the Committee, impleading the Union of India and the Committee
appointed under the Act as the respondents. The relief sought in this writ
petition is for a direction to the Committee to supply a copy of the Report
of the Committee to Mr. Justice V. Ramaswami and to withhold forwarding of
the said Report to the Speaker of the Lok Sabha simultaneously to enable
Mr. Justice V. Ramaswami to seek redress in a court of law, if required or
necessary, against the findings of the Committee in its Report. This relief
is sought on the basis of the decision of the Constitution Bench reported
in (1991) 4 SCC 699 (AIR 1992 SC 320) that the entire proceedings of the
Committee are statutory in nature and, therefore, subject to judicial
review.

10. When the matter came up for hearing before us first on July 21, 1992,
we indicated to Shri Kapil Sibal, senior counsel for the petitioner that
even though the petitioner’s right for the relief claimed in this petition
is founded on her status as wife of the learned Judge and the right flowing
to her through her husband, yet Mr. Justice V. Ramaswami had not been
impleaded as a party and it was also not indicated that the writ petition
was for and on behalf of the learned Judge so as to bind the learned Judge
himself to the decision in this petition. We also pointed out that the
exact position of the learned Judge has to be made clear to us before we
proceed to consider and decide this writ petition on merits. Shri Kapil
Sibal indicated that the learned Judge Mr. Justice V. Ramaswami would be
bound by the decision herein and he also undertook to file a writing to
that effect. We accordingly adjourned the matter to the next day July 22,
1992 for this purpose. The proceedings of July 21, 1992 are as under:-

“Shri Kapil Sibal, learned senior counsel appears for the petitioner. In
response to our query whether Mr. Justice V. Ramaswami would be bound by
the adjudication made in this petition wherein his wife is the petitioner,
Shri Sibal submitted that he will obtain written instructions to this
effect from the learned Judge, Mr. Justice V. Ramaswami and file the same
in the Court by tomorrow morning.

The matter will be taken up tomorrow, the 22nd July, 1992.”

11. On July 22,1992, Shri Ranjit Kumar, the counsel instructing Shri Kapil
Sibal, senior counsel for the petitioner filed in the Court a letter
addressed by him to Mr. Justice V. Ramaswami with the endorsement of the
learned Judge at the foot thereof. The same is reproduced as under:-

“Ranjit Kumar

Advocate

July 21, 1992.

Sub: Writ Petition (C) No. 514 of 1992 Mrs. Sarojini Ramaswami v. Union of
India and others.

Dear Sir,

When Writ Petition (Civil) No. 514/ 1992 was taken up today, the Hon’ble
Judges comprising the Bench wanted to be informed of your stand in respect
of the binding nature of the adjudication in the event the petition was
taken up for hearing and judgment rendered thereon.

Shri Kapil Sibal, Senior Advocate, appearing on behalf of the petitioner in
this Writ Petition informed the learned Judges that as the right of Mrs.
Ramaswami to move this Hon’ble Court directly flowed from your right to
continue to hold office as a Judge of this Hon’ble Court, you would
naturally be bound by the adjudication rendered in respect of the relief
sought in Writ Petition No. 514 of 1992. Please confirm if Mr. Sibal has
rightly conveyed to the Hon’ble Judges your position in this regard.

Thanking you,

Yours faithfully,

Sd/-

(Ranjit Kumar)

Hon’ble Mr. Justice V. Ramaswami

2, Teen Murti Marg

New Delhi.

The statement made by Mr. Sibal correctly reflects my position.

Sd/- V. Ramaswami

21-7-1992″

12. On production of the above letter of Shri Ranjit Kumar, bearing thereon
the endorsement of acceptance by Mr. Justice v. Ramaswami in his own hand,
we made an order to this effect which is contained in the proceedings dated
July 22,1992 asunder:-

“Mr. Ranjit Kumar, learned counsel for the petitioner has filed a letter
dated July 21, 1992 addressed by him to Mr. Justice V. Ramaswami bearing
the endorsement of Mr. Justice V. Ramaswami at the foot of it accepting as
correct Justice V. Ramaswami the position is that this writ petition is in
substance by the learned Judge himself field through his wife who is shown
as the petitioner” (Emphasis supplied)

13. The result, therefore, is that this writ petition is in substance by
the learned Judge Mr. Justice V. Ramaswami himself filed through his wife,
the petitioner Smt. Sarojini Ramaswami for the relief claimed herein on
behalf of her husband Mr. Justice V. Ramaswami. This writ petition is
treated accordingly for the purpose of deciding the points raised herein.

14. In addition to issuing notice to the respondents, namely, the Union of
India and the Inquiry Committee appointed under Section 3 (2) of the Act,
we also requested the learned Attorney General to appear and assist the
Court in his capacity as the Attorney General of India. We have heard Shri
Kapil Sibal for the petitioner, Shri F. S. Nariman for the Inquiry
Committee and the Attorney General Shri G. Ramaswamy.

15. Before proceeding to consider the arguments advanced by these learned
counsel, we consider it appropriate to make a brief reference to Writ
Petition (Civil) No. 149 of 1992 – Shri Krishna Swami v. Union of India –
which had been filed earlier and of which reference is made in this writ
petition as well as in the correspondence between Mr. Justice v. Ramaswami
and the Committee.

16. Writ Petition No. 149 of 1992 was filed in this Court by M. Krishna
Swami, a member of the Tenth Lok Sabha for several reliefs specified
therein. Those reliefs relate to the aforesaid Inquiry by the Committee
appointed under the Act to investigate into the allegations made against
Mr. Justice v. Ramaswami. The petitioner therein M. Krishna Swami claiming
to be a person interested as a member of the Tenth Lok Sabha as well as an
advocate of Madras known to Mr. Justice V. Ramaswami for long alleged
certain illegalities in the procedure adopted by the Committee prejudicial
to the learned Judge Mr. Justice V. Ramaswami and on that basis, apart from
seeking reconsideration of the decision in Sub-Committee on Judicial
Accountability, (AIR 1991 SC 320 ), also sought quashing of the charges
framed by the Committee and a declaration that the proceedings of the
Committee are null and void. That writ petition was listed initially before
a Division Bench comprising of three learned Judges which referred the writ
petition for hearing by a larger Bench. This is how Writ Petition No. 149
of 1992 came up for hearing before this Bench. On 6-5-1992, during
consideration of the question of maintainability of that writ petition in
the absence of Mr. Justice V. Ramaswami as a party, Shri Kapil Sibal,
senior counsel appearing for the petitioner in that writ petition also took
time to make an application for impleading Mr. Justice V. Ramaswami as a
party in that petition. However, on 7-5-1992, Shri Kapil Sibal stated that
the petitioner therein did not want to implead Mr. Justice V. Ramaswami as
a party and he had decided to pursue that writ petition as framed.
Accordingly, that writ petition was heard on the question of its
maintainability for grant of the reliefs claimed therein without impleading
the learned Judge Mr. Justice V. Ramaswami, who would undoubtedly be
directly affected by the decision on merits of the questions raised
therein. We are disposing of Writ Petition No. 149 of 1992 also separately
on the definite stand taken by the petitioner therein of pursuing that
petition declining to implead Mr. Justice V. Ramaswami in spite of
opportunity given for the purpose. The present Writ Petition No. 514 of
1992 by Smt. Sarojini Ramaswami came to be filed thereafter in these
circumstances on conclusion of the Inquiry by the Committee constituted
under the Act.

17. The main point for decision in this writ petition – Writ Petition No.
514 of 1992 – is: Whether as a result of the decision in Sub-Committee on
Judicial Accountability Mr. Justice V. Ramaswami is entitled to be supplied
a copy of the report of the Committee containing its findings before
submission of that report to the Speaker of the Lok Sabha in accordance
with Section 4 (2) of the Act to enable him to challenge the adverse,
findings, if any, against him at this stage in a Court of law? The
submission of Shri Kapil Sibal, learned Senior counsel for the petitioner
is that this right of Mr. Justice V. Ramaswami is a logical corollary of
the decision in Sub-Committee on Judicial Accountability, (AIR 1992 SC 320
), wherein it has been held that the process up to submission of the report
to the Speaker and it being laid before the House for its consideration is
statutory subject to judicial review. The further submission of learned
counsel is that the contrary view would result in depriving the learned
Judge of his right to challenge the adverse finding of ‘guilty’, if any,
once the parliamentary part of the process commences. He submitted that the
order of removal thereafter would be immune from challenge being the
culmination of the parliamentary process and, therefore, the learned Judge
would be denied his constitutional right of seeking judicial review of the
statutory part of the process even though that is the foundation for the
subsequent parliamentary part. Shri Sibal urged that the order of removal
made by the President as a result of this process being in effect the
culmination of the parliamentary process would be immune from judicial
review and, therefore, unless the learned Judge has the opportunity of
seeking judicial review before commencement of the parliamentary part of
the process, his constitutional right, notwithstanding any illegality in
the procedure culminating in the adverse findings of the Committee, would
be defeated in spite of the declaration of law made in the earlier
decision. Finally, Shri Sibal modified this part of the argument slightly
to contend that even assuming the order of removal made by the President
under Article 124 (4) be not immune from judicial review on permissible
grounds of illegality, which according to learned counsel is extremely
doubtful, great prejudice would be caused to the learned Judge by
postponement of the stage of judicial review till after the making of the
order of removal under Article 124(4) if the illegality attaches to the
finding of ‘guilty’ in the report of the Committee. In short, according to
Shri Kapil Sibal, judicial review to test the legality of the Committee’s
findings is available either ‘now’ before commencement of the parliamentary
process on submission of the report to the Speaker under Section 4 (2) of
the Act ‘or never’. This, according to Shri Sibal, is the reason for
directing the Committee, a statutory authority, to furnish a copy of its
report to the learned Judge before submitting the report to the Speaker in
accordance with Section 4(2) of the Act. The question, therefore, is:
Whether the basic premise on which the argument is based, namely, judicial
review now or never’ is correct or the law is that judicial review on
permissible grounds is not now but only later in case an order of removal
is made by the President under Article 124(1) of the Constitution? Is it
that the challenge permissible in the constitutional scheme is actually to
the order of removal made by the President under Article 124(4) based on
the composite process of removal comprising of the initial statutory part
which provides the condition precedent for, and the parliamentary part of
the process thereafter?

18. Shri F. S. Nariman, learned senior counsel appearing on behalf of the
Committee did not dispute the right of the learned Judge to seek judicial
review of the statutory part of the process as declared in the earlier
decision on permissible grounds of judicial review, but he urged that on
completion of the Inquiry culminating in recording of the findings in the
report. The principle of committee between the constitutional authorities
requires that the Courts must not interdict the process contemplated by the
Act once the findings have been recorded in the report; and judicial review
to the extent permissible must be only in the event an order of removal is
made by the President under Article 124 (4) of the Constitution if the
Parliament chooses to act on the adverse finding of ‘guilty’, if any, in
the Committee’s report by adopting the motion of removal as prescribed.
Shri Nariman submitted that the learned Judge is entitled to an opportunity
during the parliamentary process to assail the adverse findings and thereby
facilitate the Parliament to consider the matter properly while discussing
the motion on receipt of the Committee’s report, as was the procedure
adopted during the impeachment of Justice Angelo Vasta in Australia where
the procedure is entirely parliamentary. Shri Nariman added that there is
no reason to assume that the Parliament would not give such an opportunity
to the learned Judge or that it would not properly consider the objections
to the findings raised by the learned Judge before voting on the motion;
and in case those objections are accepted and the motion fails, the
proceedings would end in favour of the learned Judge without any need for
him to seek redress by judicial review. Shri Nariman further submitted that
even though he could not make a definite submission that the ultimate order
of removal, if any, would be subject to judicial review, yet he was unable
to find any clear limitation, in principle or authority, on the power of
judicial review against an order of removal by the President under Article
124(4) of the Constitution on the permissible grounds of illegality on
which alone the learned Judge can assail the adverse findings of the
Committee at this stage, assuming he has a right to do so, before
Commencement of the parliamentary process.

19. The learned Attorney General, to begin with, adopted fully the
arguments of Shri Kapil Sibal and supported the petitioner’s case. However,
the final stand of the learned Attorney General was modified wherein he
submitted that the right of the learned Judge to challenge the order of
removal made by the President under Article 124(4) being doubtful, it is
appropriate that in order to avoid defeating his right of seeking judicial
review in case of an adverse findings, if any, the learned Judge should be
furnished a copy of the report of the Committee at this stage before it is
submitted to the Speaker under Section 4(2) of the Act. The learned
Attorney General entirely agreed with Shri F. S. Nariman that in the event
of an adverse finding by the Committee, the learned Judge would be entitled
to an opportunity during the parliamentary process to assail the finding
against him and thereby facilitate the Parliament to consider the motion
properly.

20. From the rival submissions, as summarised above, it is clear that in
case the learned Judge would have the right to seek judicial review in the
event an order of removal is made against him under Article 124(4) of the
Constitution, and the permissible grounds of judicial review whatever they
be at this stage, would remain unimpaired then, the main reason for
requiring a copy of the Report of the Committee to be furnished now before
commencement of the parliamentary process would disappear. In such a
situation, the only other question would be: Whether there is any added
prejudice by deferment of the exercise of that right till after the making
of the order of removal, if any? This further question would arise only if
the constitutional scheme envisages the remedy of judicial review to the
learned Judge now as well as at the end. If it is held that the
constitutional scheme envisages and permits a challenge by the concerned
Judge to the adverse finding of ‘guilty’ recorded in the report of the
Committee only if, and when, the order of removal is made by the President
under Article 124(4) of the Constitution and not earlier, it being
contemplated that during the parliamentary process the concerned Judge
would be given an opportunity for the purpose to enable the Parliament to
take into account the objections, if any, of the concerned Judge to the
adverse findings against him before voting on the motion for removal of the
Judge, then any interdiction by the Court at an intermediate stage would be
excluded in a matter of this kind where expedition and early conclusion of
the process is of utmost public importance. The scheme then would be that
in case of an adverse finding of ‘guilty’ by the Committee, the Parliament
gives an opportunity to the concerned Judge to show cause against his
removal on the basis of the adverse findings and takes that into
consideration for voting on the motion so that if it accepts the objections
of the concerned Judge, the motion would not be passed and the matter would
rest there. The learned Judge would not then be required to seek redress in
the Court of law to challenge the statutory part of the process preceding
the parliamentary process.

21. If, however, the motion is passed, notwithstanding the objections to
the findings raised by the concerned Judge, leading to the order of removal
being made by the President under Article 124(4) of the Constitution, then
alone there is occasion for the concerned Judge to assail the adverse
finding of ‘guilty’ and the statutory process preceding it on the
permissible grounds of judicial review by challenging the order of removal
in a Court of law on that basis. Keeping in view the desirability of early
conclusion of the proceedings of this nature in public interest, such a
constitutional scheme would not be unreasonable reconciling the larger
public interest with the individual interest of the concerned Judge
himself. The first point for consideration, therefore, is: The existence of
the right of judicial review in the concerned Judge of the Order of removal
made by the President under Article 124 (4) of the Constitution, if and
when it is made.

22. Another submission of Shri Kapil Sibal, in effect, to buttress his main
submission indicated above, is that the Committee constituted under Section
3(2) of the Act, is a Tribunal and, therefore, its findings are subject to
appeal in this Court under Article 136 of the Constitution. This argument
also is to claim that the learned Judge is entitled to a copy of the report
before its submission under Section 4 (2) of the Act to the Speaker to
exercise the right of appeal against the adverse finding of ‘guilty’, if
any, in the report.

23. The constitutional scheme for the removal of a Judge of the Supreme
Court or a High Court in accordance with Article 124(4) of the Constitution
and the Judges (Inquiry) Act, 1968 made under Article 124(5) of the
Constitution read with the Judges (Inquiry) Rules, 1969 framed under the
Act was considered and indicated in the earlier decision in Sub-Committee
on Judicial Accountability (AIR 1992 SC 320 ). It is, however, useful to
recapitulate the scheme in the Judges (Inquiry) Act, 1968 and the Judges
(Inquiry) Rules, 1969 made thereunder in the context of the question which
now arises for decision on the basis of the declaration of law made in Sub-
Committee on Judicial Accountability. We proceed to do so before we advert
to the specific declaration of law made in the earlier decision.

24. Article 124(5) mandates enactment of a parliamentary law to regulate
the investigation and proof of misbehaviour or incapacity of a Judge under
clause (4) and pursuant to it the Judges (Inquiry) Act, 1968 has been
enacted by the Parliament. As held in sub-committee on Judicial
Accountability, on a construction of Article 124, ‘the policy appears to be
that the entire stage up to proof of misbehaviour or incapacity, beginning
with the initiation of investigation on the allegation being made, is
governed by the law enacted under Article 124(5) and in view of the
restriction provided in Article 121, that machinery has to be outside the
Parliament and not within it and ‘the Parliament comes in the picture only
when a finding is reached by that machinery that the alleged misbehaviour
or incapacity has been proved’. The Judges (Inquiry) Act, 1968 enacted
under Article 124(5) of the Constitution being made for this purpose, the
provisions thereof have to be construed in that light.

25. The Judges (Inquiry) Act, 1968 provides that the procedure for removal
of a Judge of the Supreme Court or a High Court can be initiated only if a
notice of a motion for presenting an address to the President praying for
his removal, signed by not less than 100 members of the House of the People
or 50 members of the Council of States is given to the Speaker / Chairman
in accordance with sub-section (1) of Section 3 of the Act. Any other
method for initiating the prescribed procedure for removal of a Judge is
obviously excluded. The Speaker / Chairman is empowered to either admit or
refuse to admit the motion ‘after consulting such persons, if any, as he
thinks fit and after considering such materials, if any, as may be
available to him’. The indication is that the Speaker / Chairman is
empowered to consult such persons as he thinks fit and is required to take
into consideration the materials available to him for deciding whether to
admit the motion or refuse to admit the same. It is reasonable to assume
that one such person to be consulted would be the Chief Justice of India,
who apart from being the Head of the Indian Judiciary would also be the
authority involved in the choice and availability of a sitting Judge of the
Supreme Court and a sitting Chief Justice of a High Court as members of the
Committee constituted under Section 3(2) of the Act, if the motion is
admitted by the Speaker / Chairman. Sub-section (2) of Section 3 then
provides that the Speaker/ Chairman, in case he admits the motion, ‘shall
keep the motion pending and constitute, as soon as may be, for the purpose
of making an investigation into the grounds on which the removal of a Judge
is prayed for’, a Committee of three members of whom one shall be from
among the Chief Justice and other Judges of the Supreme Court, one from
among the Chief Justices of the High Courts and a distinguished jurist.
This means that an inquiry into the grounds on which the removal of a Judge
is prayed for in the notice of motion given by the specified minimum number
of members of Parliament or in other words the inquiry into the allegations
of misbehaviour or incapacity of the Judge requiring his removal would be
made by the Committee so constituted comprising of two sitting Judges and a
distinguished jurist. Sub-section (1) of Section 4 empowers the Committee
to regulate its own procedure subject to any rules made in this behalf and
the giving of a reasonable opportunity to the Judge concerned of defending
himself in that inquiry. Sub-section (2) of Section 4 requires the
Committee, ‘at the conclusion of the investigation’, to submit its report
to the Speaker / Chairman ‘stating therein its findings on each of the
charges separately with such observations on the whole case as it thinks
fit’. The Speaker / Chairman, as required by sub-section (3) ‘shall cause
the report submitted under sub-section (2) to be laid, as soon as may be,
respectively before the House of the People and the Council of States’.
Thus sub-sections (2) and (3) of Section 4 require the Committee to submit
its report to the Speaker / Chairman ‘at the conclusion of the
investigation’ and the Speaker / Chairman ‘shall cause the report to be
laid, as soon as may be, before the House of the People and the Council of
States’. In the present context, it is the requirement at this stage, ‘at
the conclusion of the investigation’, when the report of the Committee has
been prepared, which raises the question: Whether, as a consequence of the
earlier decision in Sub-Committee on Judicial Accountability, (AIR 1992 SC
320 ), the Committee is required to furnish a copy of its report to the
concerned Judge before submitting it to the Speaker as enjoined by Section
4(2) of the Act?

26. Section 6 of the Act provides for the stage subsequent to submission of
the report by the Committee to the Speaker / Chairman. Sub-section (1) of
Section 6 lays down that if the Committee absolves the concerned Judge, In
its report and records a finding that the Judge is ‘not guilty of any
misbehaviour then no further steps shall be taken in either House of
Parliament and the motion pending in the House shall not be proceeded
with’. It is clear from sub-section (1) of Section 6 that a finding of ‘not
guilty’ recorded by the Committee in its report terminates the process of
removal of the concerned Judge initiated in accordance with Section 3(1) of
the Act, that part of the process being statutory, and the parliamentary
part of the process initiated on the Committee’s report being laid before
the House by the Speaker / Chairman in accordance with Section 4(3) does
not commence. This is clear from the expressions ‘then no further steps
shall be taken in either Houseand the motion pending in the House shall not
be proceeded with’ in Section 6(1) of the Act. In Sub-Committee on Judicial
Accountability, (1991 (4) SCC 699

“If, however, the finding reached by the machinery provided in the enacted
law is that the allegation is not proved, the matter ends and there is no
occasion to move the motion in accordance with Article 124(4)”.

27. Sub-sections (2) and (3) of Section 6 provide for the situation where
the report of the Committee contains a finding that the Judge is ‘guilty’
of any misbehaviour or suffers from any incapacity. Sub-section (2)
prescribes that the motion admitted by the Speaker / Chairman under Section
3(1) of the Act shall then be taken up for consideration by the House
together with the report of the Committee. It is in this situation and in
this manner that the parliamentary part of the process of removal of a
Judge commences requiring the House to consider the motion for removal of
the Judge. Sub-section (3) lays down that if the motion is adopted by each
House of Parliament in accordance with provisions of clause (4) of Article
124, then the misbehaviour or incapacity of the Judge shall be deemed to
have been proved and the address praying for the removal of the Judge shall
be presented to the President in the prescribed manner. Thus, commencement
of the parliamentary part of the process for removal is after the end of
the earlier statutory part, only in case the report of the Committee
contains a finding that the Judge is ‘guilty’ of any misbehaviour or
suffers from any incapacity and not otherwise. The entire process of
removal is composite in nature.

28. A brief reference to the relevant provisions of the Judges (Inquiry)
Rules, 1969 framed under the above Act which are material in the present
context may now be made. Rule 9 relates to the report of the Inquiry
Committee. Sub-rule (1) says that where the members of the Inquiry
Committee are not unanimous, the report submitted under Section 4 of the
Act shall be in accordance with the findings of the majority of the
members. Sub-rule (2) requires the Presiding Officer of the Inquiry
Committee to forward within the specified period its report in duplicate,
duly authenticated to the Speaker / Chairman by whom the Committee was
constituted. Sub-rule (3) requires an authenticated copy of the report of
the Inquiry Committee to be laid before each House of Parliament. Sub-rule
(4) prescribes that where the finding of ‘guilty’ is by majority, the
contrary finding of the third member shall also be forwarded along with the
report submitted under Section 4 of the Act. Sub-rule (5) requires an
authenticated copy of the contrary finding of ‘not guilty’ made by the
third member in such a case also to be laid before each House of
Parliament. Thus, sub-rules (4) and (5) require that where the finding of
‘guilty’ is not unanimous but. only by majority, then the contrary opinion
of the third member in favour of the concerned Judge shall also be laid
before each House of Parliament to be available to the Parliament for
consideration along with the report containing the finding of ‘guilty’ by
the majority while considering the motion for removal of the Judge. Sub-
rule (6) makes provision for the converse situation where the finding by
the majority of the members of the Inquiry Committee is that the Judge is
‘not guilty’, but the third member makes a finding to the contrary. It
provides that in such a situation where the majority of the members of the
Inquiry Committee finds that the Judge is ‘not guilty’, then ‘the Inquiry
Committee shall not disclose the finding made by such third member to
Parliament or to any other authority, body or person’.

(Emphasis supplied)

29. It is clear that if the finding of ‘not guilty’ is even by majority and
not unanimous, the contrary finding of ‘guilty’ by the third member is not
even to be disclosed to ‘Parliament or to any other authority, body or
person’ much less acted upon for any purpose by anyone. The scheme embodied
in Section 6 of the Act read with Rule 9 is that where the finding of the
Inquiry Committee is of ‘not guilty’ whether unanimous or by majority of
the members of the Inquiry Committee, the entire process of removal of the
Judge terminates with that finding giving the quietus to the accusation of
misbehaviour by the Judge scotching all rumours and the motion is not even
required to be taken up for consideration by the Parliament so that the
parliamentary part of the process does not commence in the absence of the
condition precedent of a finding of ‘guilty’ by the Inquiry Committee
essential for its commencement. In such a situation when the finding of
‘not guilty’ is by majority of the members only, the contrary finding of
guilty by the third member is not even to be disclosed to any authority or
person including the Parliament since all debate on the conduct of the
concerned Judge based on those allegations must end. The scheme is that the
matter must end there finally with no one, not even the Parliament, having
the right or authority to consider, debate or examine the finding of ‘not
guilty’.

30. It is, therefore, obvious that the Inquiry Committee constituted under
Section 3(2) of the Act becomes the sole and final arbiter on the question
of removal of the concerned Judge where the finding reached by the
Committee, whether unanimous or by majority, is that the Judge is ‘not
guilty’. Rule 9(6) read with Section 6(1) indicates the extent and wide
sweep of a finding of ‘not guilty by the committee by providing that the
contrary finding of ‘guilty’ by the dissenting third member in case of a
finding of ‘not guilty’ by majority shall not even be disclosed to anyone
including the Parliament. The idea is that if the Committee even by
majority records a finding of ‘not guilty’, notwithstanding the contrary
opinion of the third member, the matter must terminate there with no one,
not even the Parliament, being entitled to even scrutinise much less
question the correctness or legality of the finding of ‘not guilty’. The
intention manifest from these provisions is that in case the Inquiry
Committee makes a finding that the Judge is ‘not guilty, of any
misbehaviour, any further scrutiny of that finding is excluded in the
constitutional scheme, and no useful purpose being served by disclosure of
the contrary finding of guilty reached by the third member even to the
Parliament, its disclosure is forbidden with the majority opinion of ‘not
guilty’ giving the quietus to the allegation of misbehaviour made against
the concerned Judge. The disclosure of the dissenting opinion of guilty by
the third member would needlessly harm the reputation of the concerned
Judge, notwithstanding termination of the process of removal with the
majority finding him ‘not guilty’.

31. These provisions in the Act and the Rules are a strong indication that
the constitutional scheme for the removal of a Judge in accordance with
clauses (4) and (5) of Article 124 of the Constitution and the
parliamentary law enacted under Article 124(5) shuts out all scrutiny even
by judicial review where the Inquiry Committee unanimously or even by
majority makes a finding that the Judge is ‘not guilty’ of any
misbehaviour. Obviously, the concerned Judge cannot be aggrieved by a
finding of ‘not guilty’ in his favour and in case such finding is not
unanimous but by majority, non-disclosure of the dissenting opinion of
guilty, as required by Rule 9(6) of the Rules, even to the Parliament,
prevents any possible damage to the reputation of the concerned Judge from
the dissenting opinion and, therefore, there can be no legitimate grievance
to him from the undisclosed dissenting opinion. For this reason, the
concerned Judge can have no grievance against exclusion of judicial review
in that situation.

32. The constitutional scheme indicates that it is only the Members of
Parliament acting jointly in the specified minimum number who can bring
about initiation of the procedure for removal of a Judge, all other modes
and persons being excluded. The provision in Rule 9(6) for non-disclosure
of the dissenting opinion of ‘guilty’ even to the Parliament further
indicates that no one including the Members of Parliament who gave the
notice of motion under Section 3(1) of the Act to initiate the process of
removal have any right in that situation to even scrutinise much less
assail the finding of ‘not guilty’ recorded by the Inquiry Committee even
by majority. Section 6(1) of the Act read with Rule 9(6) of the Rules is a
clear pointer in this direction. Thus, there is total exclusion of judicial
review at the instance of any one, including the concerned Judge and
Members of Parliament who gave the notice of motion, as well as any debate
even in Parliament, in case the finding by the Inquiry Committee, whether
unanimous or by majority, is that the Judge is ‘not guilty’ of any
misbehaviour. This being the situation in the event of the Committee’s
report containing a finding of ‘not guilty’, there can be no requirement at
least in that situation for the Committee to furnish a copy of its report
to the concerned Judge before submitting the same to the Speaker / Chairman
under Section 4 (2) of the Act. There being no grievance to the concerned
Judge, the question of his right to seek judicial review does not arise.
The question, however, is of this obligation in the converse situation
where the Committee makes the finding of ‘guilty’ against the concerned
Judge.

33. The absence of any obligation in the Committee to furnish a copy of its
report to the concerned Judge before submitting it to the Speaker /
Chairman under Section 4(2) of the Act is in consonance with the law
declared in Sub-Committee on Judicial Accountability, that the process for
removal of the Judge is statutory till the laying of the report by the
Speaker before the Parliament on its submission to him by the Committee in
accordance with sub-sections (2) and (3) of Section 4 of the Act. There
being no scope for judicial review in the case of finding of ‘not guilty’
in the report for the reasons already given, the finding of ‘not guilty’
being immune from any scrutiny in the constitutional scheme adopted, there
need not be any obligation to furnish a copy of the report to the concerned
Judge. The Judge not being aggrieved and all others being excluded when the
finding is ‘not guilty’, any interdiction by the Court is automatically
ruled out, notwithstanding the process till then being statutory. The
incidents of statutory process are to be considered in this perspective.

34. In this background, the real question for decision now is: Whether the
right of the concerned Judge to assail the finding of ‘guilty’ against him
reached by the Inquiry Committee, a statutory authority, can be exercised
only if the report is furnished to the concerned Judge before the
commencement of the parliamentary process which obliges the Inquiry
Committee to furnish a copy of the report to him at least in the situation
where the finding reached is that the Judge is ‘guilty’ of any
misbehaviour? Before proceeding to consider this question, it may be added
that if there be several charges framed against the Judge and in respect of
some of them the finding is that the Judge is ‘guilty’ while the finding on
the other charges is that the Judge is ‘not guilty’, then the consequences
which would ensue in respect of the finding on each charge would depend on
its nature. In other words, in respect of a charge of which the Judge is
found ‘not guilty’, the consequences would be those indicated above in
accordance with Section 6(1) of the Act and Rule 9(6) of the Rules and the
process of removal relating to those charges would terminate in the manner
indicated without being subject to any further scrutiny or judicial review
as in the case of a finding of ‘not guilty’ in respect of all the charges
levelled against a Judge.

35. At this stage, certain extracts from the earlier decision in Sub-
Committee on Judicial Accountability v. Union of India, (1991 (4) SCC 699
may be quoted for convenience. The point raised in this petition was
debated mainly with reference to these portions of the earlier decision.
These extracts are as under:-

“But the constitutional scheme in India seeks to achieve a judicious blend
of the political and judicial processes for the removal of Judges. Though
it appears at the first sight that the proceedings of the Constituent
Assembly relating to the adoption of clauses (4) and (5) of Article 124
seem to point to the contrary and evince an intention to exclude
determination by a judicial process of the correctness of the allegations
of misbehaviour or incapacity on a more careful examination this is not the
correct conclusion”

“The proceedings in the Constituent Assembly, therefore, do not give an
indication that in adopting clauses (4) and (5) of Article 124 of the
Constitution, the intention of the Constituent Assembly was to exclude
investigation and proof of misbehaviour or incapacity of the judge sought
to be removed, by a judicial body. Having regard to the views expressed by
Shri Alladi Krishnaswami Ayyar, who was a member of the Drafting Committee,
while opposing the amendments proposed by Shri M. Ananthasayanam Ayyangar,
it is possible to infer that the intention of the Constituent Assembly was
that the provision with regard to the machinery for such investigation and
proof was a matter which need not be contained in the Constitution and it
is a matter for which provision could be made by Parliament by law.”

The three available constitutional options were mentioned in the decision
of which the second which was accepted by the majority opinion is as
under:-

“Second.- Since a motion for presenting an address to the President
referred to in Articles 121 and 124(4) has to be on ground of ‘proved’
misbehaviour and incapacity, no such motion can be made until the
allegations relating to misbehaviour or incapacity have first been found to
be proved in some forum outside either Houses of Parliament. Law under
Article 124(5) is mandatory and until the Parliament enacts a law and makes
provision for an investigation into the alleged misbehaviour or incapacity
and regulates the procedure therefor, no motion for removal of a Judge
would be permissible under Article 124(4) and the Houses of Parliament
would not be brought into the picture till some authority outside the two
Houses of Parliament has recorded a finding of misbehaviour or incapacity.
The emphasis is on the expression ‘proved’.”

Acceptance of the second view was stated thus –

“The second view has its own commendable features. It enables the various
provisions to be read harmoniously and, together, consistently with the
cherished values of judicial independence. It also accords due recognition
to the word “proved” in Article 124(4). This view would also ensure
uniformity of procedure in both Houses of Parliament and serve to eliminate
arbitrariness in the proceedings for removal of a Judge. It would avoid
duplication of the investigation and inquiry in the two Houses. Let us
elaborate on this”.

“The motion which lifts the bar contained in Article 121 is really a motion
for such removal under clause (4) of Article 124 moved in the House after
the alleged misbehaviour or incapacity has been proved in accordance with
the law enacted by the Parliament under clause (5) of Article 124. In this
connection, the parliamentary procedure commences only after proof of
misbehaviour or incapacity in accordance with the law enacted under clause
(5), the machinery for investigation and finding of proof of the
misbehaviour or incapacity being statutory, governed entirely by provisions
of the law enacted under clause (5). This also harmonises Article 121. The
position would be that an allegation of misbehaviour or incapacity of a
Judge has to be made, investigated and found proved in accordance with the
law enacted by the Parliament under Article 124(5) without the Parliament
being involved up to that stage; on the misbehaviour or incapacity of a
Judge being found proved in the manner provided by that law, a motion for
presenting an address to the President for removal of the Judge on that
ground would be moved in each House under Article 124(4); on the motion
being so moved after the proof of misbehaviour or incapacity and it being
for presenting an address to the President praying for removal of the
Judge, the bar on discussion contained in Article 121 is lifted and
discussion can take place in the Parliament with respect to the conduct of
the Judge; and the further consequence would ensue depending on the outcome
of the motion in a House of Parliament. If, however, the finding reached by
the machinery provided in the enacted law is that the allegation is not
proved, the matter ends and there is no occasion to move the motion in
accordance with Article 124(4)”.

“The other view is that clause (4) of Article 124 gives power to the
Parliament to act for removal of the Judge on the ground of proved
misbehaviour or incapacity in the manner prescribed if the matter is
brought before it at this stage; and for reaching that stage the Parliament
is required to enact a law under clause (5) regulating the procedure for
that purpose. This means that making of the allegation, initiation of the
proceedings, investigation and proof of the misbehaviour or incapacity of a
Judge are governed entirely by the law enacted by the Parliament under
clause (5) and when that stage is reached, the Parliament comes into the
picture and the motion for removal of the Judge on the ground of proved
misbehaviour or incapacity is moved for presentation of the address to the
President in the manner prescribed This indicates that the machinery for
investigation and proof must necessarily be outside Parliament and not
within it. In other words, proof which involves a discussion of the conduct
of the Judge must be by a body which is outside the limitation of Article

121. The word ‘proved’ also denotes proof in the manner understood in our
legal system i.e. as a result of a judicial process. The policy appears to
be that the entire stage up to proof of misbehaviour or incapacity,
beginning with the initiation of investigation on the allegation being
made, is governed by the law enacted under Article 124 (5) and in view of
the restriction provided in Article 121, that machinery has to be outside
the Parliament and not within it. If this be so, it is a clear pointer that
the Parliament neither has any role to play till misconduct or incapacity
is found proved nor has it any control over the machinery provided in the
law enacted under Article 124 (5). The Parliament comes in the picture only
when a finding is reached by that machinery that the alleged misbehaviour
or incapacity has been proved. The Judges (Inquiry) Act, 1968 enacted under
Article 124(5) itself indicates that the Parliament so understood the
integrated scheme of Articles 121, 124(4) and 124(5). The general scheme of
the Act conforms to this view (para 39 at pp. 349-50 of AIR)

“If this be the correct position, then the validity of law enacted by the
Parliament under clause (5) of Article 124 and the stage up to conclusion
of the inquiry in accordance with that law being governed entirely by state
would be open to judicial review as the parliamentary process under Article
124(4) commences only after a finding is recorded that the alleged
misbehaviour or incapacity is proved in the inquiry conducted in accordance
with the law enacted under clause (5) for this reason the argument based on
exclusivity of Parliament’s jurisdiction over the process and progress of
inquiry under the Judges (Inquiry) Act, 1968 and consequently exclusion of
this Court’s jurisdiction in the matter at this stage does not arise”
(Emphasis supplied)

” This indicates that this area is not left uncovered which too is a
pointer that the stage at which the bar in Article 121 is lifted is the
starting point of the parliamentary process i.e. when the misbehaviour or
incapacity is proved; the stage from the initiation of the process by
making the allegation, its mode, investigation and proof are covered by the
law enacted under clause (5); in case the allegation is not proved, the
condition precedent to invoke the Parliament’s jurisdiction under clause
(4), does not exist, which is the reason for S. 6 of 1968 Act saying so;
and in case it is proved, the process under clause (4) commences,
culminating in the result provided in it.”

“Accordingly, the scheme is that the entire process of removal is in two
parts – the first under clause (5) from initiation to investigation and
proof of misbehaviour or incapacity is covered by an enacted law,
Parliament’s role being only legislative as in all the laws enacted by it;
and the second part only after proof under clause (4) is in Parliament,
that process commencing only on proof in accordance with the law enacted
under clause (5). Thus the first part is entirely statutory while the
second part alone is the parliamentary process.

The Constitution intended a clear provision for the first part covered
fully by enacted law, the validity of which and the process thereunder
being subject to judicial review independent of any political colour and
after proof it was intended to be a parliamentary process. It is this
synthesis made in our Constitutional Scheme for removal of a Judge.”

“Indeed, the Act reflects the constitutional philosophy of both the
judicial and political elements of the process of removal. The ultimate
authority remains with the Parliament in the sense that even if the
committee for investigation records a finding that the Judge is guilty of
the charges it is yet open to the Parliament to decide not to present an
address to the President for removal. But if the committee records a
finding that the Judge is not guilty, then the political element in the
process of removal has no further option. The law is, indeed, a civilised
piece of legislation reconciling the concept of accountability of Judges
and the values of judicial independence.”

“Our conclusions, therefore, on Contentions B, C and D are as under:

The constitutional process for removal of a judge up to the point of
admission of the motion, constitution of the committee and the recording of
findings by the committee are not, strictly, proceedings in the Houses of
Parliament. The Speaker is a statutory authority under the Act. Up to that
point the matter cannot be said to remain outside the Court’s jurisdiction.
Contention B is answered accordingly.

Prior proof of misconduct in accordance with the law made under Article
124(5) is a condition precedent for the lifting of the bar under Art. 121
against discussing the conduct of a Judge in the Parliament. Art. 124(4)
really becomes meaningful only with a law made under Article 124(5).
Without such a law the constitutional scheme and process for removal of a
Judge remains inchoate. Contention C is answered accordingly.”

36. The proceeding being statutory means that it is governed in that part
by the law enacted under Art. 124(5) and it is statutory in the sense that
it is outside the Parliament while thereafter in case of a finding of
‘guilty’ by the Committee, the proceedings are in the Parliament.

37. The constitutional scheme indicated by clauses (4) and (5) of Art. 124
and reflected in the law enacted by the Parliament under Art. 124(5) is, as
indicated in sub-committee on Judicial Accountability, ‘a judicious blend
of the political and judicial processes for the removal of Judges’ and,
therefore, we must first look at these provisions to provide the answer to
every query raised in this context. The different schemes for removal of
Judges in the other countries do not provide the answer to the problem
before us and are at best only of marginal precedent value. The practice
and precedents in other countries, such as Australia, may provide guidance
only in respect of the political part of the procedure in our
constitutional scheme which commences after a finding of ‘guilty’ is made
by the Inquiry Committee and the report is laid before the Parliament under
S. 4(3) of the Act. We must, therefore, find the indication for the problem
before us primarily from the provisions of the Constitution and the law
enacted under Art. 124(5). In view of ‘a judicious blend of the political
and judicial processes’ in the constitutional scheme in India, no one need
look askance at the exclusion of judicial review at the instance of
everyone in case the Inquiry Committee makes a finding that the Judge is
‘not guilty’. The clear pointer is that the accusation made in the manner
prescribed by the specified minimum number of members of Parliament having
been investigated by an Inquiry Committee comprising of high judicial
dignitaries and the conclusion reached by them being that the Judge is ‘not
guilty’ of any misbehaviour, the matter must conclude there scotching all
rumours without anyone being permitted to even reagitate much less examine
the correctness of that finding of ‘not guilty’.

38. When the finding in the Committee’s report is that the Judge is
‘guilty’ of any misbehaviour, then S. 6(2) of the Act mandates that the
motion for removal of the Judge shall be taken up for consideration by the
House together with the report of the Committee submitted in accordance
with S. 4(2) and laid before it under S. 4(3) of the Act. Rule 9(1) of the
Rules provides that where the members of the Inquiry Committee are not
unanimous, the report submitted by the Committee shall be in accordance
with the finding of the majority of the members thereof. We have already
indicated the provision in Rule 9(6) and its true import where the majority
of the members makes a finding that the Judge is not guilty. Rule 9(4)
provides for the other situation where the majority of the members of the
Committee make a finding that the Judge is guilty of misbehaviour but the
third member makes a contrary finding. Unlike sub-rule (6) which contains a
clear prohibition against disclosure of the dissenting opinion of the third
member when the majority opinion is that the Judge is not guilty, sub-rule
(4) requires that where the majority opinion is that the Judge is guilty,
the finding to the contrary made by the third member shall also be
forwarded by the Inquiry Committee along with the report submitted under S.
4(2) of the Act in accordance with the findings of the majority that the
Judge is guilty, as required by Rule 9(1). This distinction in the two
situations is significant. Whereas according to Rule 9(6), the dissenting
opinion of, the third member is not even to be disclosed to any one
including the Parliament, where the majority of the members of the Inquiry
Committee makes a finding that the Judge is not guilty of any misbehaviour,
where the majority finds the Judge ‘guilty’ of misbehaviour, the dissenting
opinion of the third member to the contrary, that is, ‘not guilty’ must be
forwarded along with the report submitted under S. 4(2) of the Act. Sub-
rule (5) of Rule 9 further lays down that an authenticated copy of the
finding made by the third member referred to in sub-rule (4) shall also be
laid before each House of Parliament. Obviously, the purpose of requiring
the dissenting opinion of not guilty by the third member to be submitted
along with the report under S. 4(2) and the further requirement that it
should also be laid before each House of Parliament is to enable the
Parliament while considering the motion for removal of the Judge on a
finding of guilty being recorded by the majority of members of the Inquiry
Committee to take into account the dissenting opinion as well before
deciding whether to act on the majority opinion of guilty or not. Rule
10(2) requires a copy of the evidence received by the Inquiry Committee to
be also laid before each House of Parliament along with the report. These
provisions indicate the manner of consideration by the Parliament of the
motion for removal of the Judge before taking a decision whether the motion
is to be adopted in accordance with Art. 124(4) or not since it is only on
the motion being so adopted by the requisite majority in each House of
Parliament that the misbehaviour or incapacity of the Judge shall be deemed
to have been proved as provided in S. 6(3) of the Act.

39. The Parliament while considering the motion for removal of the Judge
for deciding whether to adopt the motion or not takes into consideration
the report as well as the dissenting opinion, if any, of the third member
of the Inquiry Committee in case the majority opinion is that the Judge is
guilty, along with the entire evidence received by the Inquiry Committee on
which the finding of guilty of the Inquiry Committee is based. No doubt,
the Parliament does not substitute its finding for that of the Inquiry
Committee or supersede it in case it decides not to adopt the motion by the
requisite majority so that the motion for removal of the Judge fails and
the proceedings terminate but in doing so it does take the decision to not
adopt the motion because it declines to accept and act on the finding of
guilty recorded in the report of the Committee after debating the issue on
the basis of the materials before it.

40. These express provisions in the law enacted under Art. 124(4) leave no
doubt that a full consideration on merits including correctness of the
finding of ‘guilty’ made by the Inquiry Committee on the basis of the
materials before the Parliament is contemplated during the parliamentary
part of the process of removal of a Judge. Notwithstanding the finding of
‘guilty’ made by the Inquiry Committee in its report, the Parliament may,
on a full consideration of the matter on the materials before it, choose
not to adopt the motion for removal of the Judge which would terminate the
process of removal.

41. Consistent with this scheme which is manifest from the provisions of
the law enacted under Art. 124(5) is the requirement that the Parliament
should also have the benefit of the comments, if any, of the concerned
Judge on the finding of ‘guilty’ against him made in the report of the
Inquiry Committee. In addition to the requirement of placing of the
materials received by the Inquiry Committee before each House of Parliament
in accordance with Rule 10(2), the requirement in sub-rules (4) and (5) of
Rule 9 of the dissenting opinion of not guilty by the third member of the
Inquiry Committee to be also made available to the Parliament is a clear
indication that when the Parliament takes up for consideration the motion
for removal of the Judge along with the report containing the finding of
‘guilty’ made by the Inquiry Committee, the Parliament should have not
merely the entire material received by the Inquiry Committee on which its
finding of ‘guilty’ is based but also the contrary opinion of not guilty
recorded on the same material by the third member of the Committee. The
concerned Judge would invariably be in a position to facilitate the task of
the Parliament in this behalf by indicating his point of view against the
finding of guilty recorded in the Committee’s report, in case he chooses to
avail of the opportunity. It is, therefore, implicit in the constitutional
scheme for the removal of a Judge provided in Art. 124(4) and the law
enacted under Article 124(5) that the Parliament should also have the
benefit of the point of view and the comments, if any, of the concerned
Judge on the finding of ‘guilty’ against him recorded by the Inquiry
Committee in its report when the Parliament takes up the motion for removal
of the Judge for consideration along with the Inquiry Committee’s report
and the other relevant materials made available to it. To enable
performance of this exercise and to effectuate the concerned Judge’s right
to show cause against the finding of ‘guilty’ made in the report at this
stage to the Parliament, it is the clear obligation of the Speaker /
Chairman to supply a copy of the Inquiry Committee’s report to the
concerned Judge while causing it to be laid before the Parliament under S.
4(3) ‘as soon as may be’ on its submission under S. 4(2). This view also
has the advantage of providing the concerned Judge an opportunity during
the parliamentary part of the process of removal to place his point of view
and offer the comments, if any, on the finding of ‘guilty’ against him made
by the Inquiry Committee for consideration by the Parliament before voting
on the motion for removal of the Judge.

42. The further question then is of the nature of this opportunity to the
concerned Judge during the parliamentary part of the process. Reference to
the procedure adopted for giving an opportunity to Mr. Justice Vasta of the
Supreme Court of Queensland in Australia where the process for removal of
the Judge was entirely parliamentary was made by Shri F. S. Nariman.
Learned counsel submitted that an opportunity to the learned Judge during
the parliamentary process in the case of a finding of ‘guilty’ by the
Committee is not inconsistent with the constitutional scheme adopted in
India where the parliamentary process commences only after a finding of
‘guilty’ is recorded by the Inquiry Committee during the statutory part.
The learned Attorney General expressed his full agreement with this
submission of Shri Nariman. Shri Kapil Sibal without contesting this
submission of Shri Nariman supported on this aspect by the Attorney
General, contended that it would be needless harassment to the learned
Judge to face also the parliamentary process if the finding of ‘guilty’, if
any, recorded by the Committee in its report can be quashed by resort to
judicial review thereof at this stage on the permissible grounds.

43. We find no reason to doubt the correctness of the submission of Shri
Nariman about the requirement of an opportunity to the concerned Judge to
place his point of view with the comments, if any, against the Committee’s
finding of ‘guilty’ for consideration by the Parliament along with the
other materials available to it while considering the motion for removal of
the Judge to decide to adopt or not to adopt it. We are, therefore, of the
opinion that in the constitutional scheme in India envisaged and reflected
by the constitutional provisions and the law enacted thereunder for the
removal of a Judge it is implicit that such an opportunity be given to the
concerned Judge when the Parliament takes up the motion for his removal for
consideration along with the Committee’s report and other relevant
materials. We have already indicated the obligation of the Speaker Chairman
to supply a copy of the report to the concerned Judge while laying it
before the Parliament under S. 4(3) as a part of this opportunity to be
given to the learned Judge. The precise details of the manner in which such
an opportunity is to be given to the concerned Judge may be for the Speaker
/ Chairman and the Parliament to decide, but it does appear to us to be the
clear mandate in our constitutional scheme that the procedure adopted for
this purpose should be such as would ensure availability to each House of
Parliament of the concerned Judge’s point of view and comments, if any, on
the finding of guilty made in the Committee’s report when it takes up for
consideration the motion for removal of the Judge, such procedure ensuring
fairness to the concerned Judge and being in keeping with the dignity of
the high office held by the learned Judge.

44. This aspect being related to the right of judicial review available to
the concerned Judge and in view of our above opinion that an opportunity to
the Judge during the parliamentary process is clearly implicit in the
constitutional scheme, a brief reference to the nature of opportunity given
in the case of Justice Vasta in Australia would be helpful as a persuasive
precedent.

45. Justice Angelo Vasta faced a proceeding for his removal from office as
a Judge of the Supreme Court of Queensland in Australia. A Commission of
Inquiry was set up under the Parliamentary (Judges) Commission of Inquiry
Act, 1988. The function of the Commission as provided in the Act was to
inquire and advise the Legislative Assembly of Queensland whether the
behaviour of Justice Vasta warranted his removal from office. The
Commission was constituted of a former Chief Justice of Australia and two
other Judges. The Commission was guided by the Special Report of the
Australian Parliamentary Commission of Inquiry into the conduct of Justice
Lionel Murphy, a Judge of the High Court of Australia under S. 72 of the
Australian Constitution. The Commission advised the Legislative Assembly of
Queensland that in the opinion of the members of the Commission, the
behaviour of Justice Vasta in relation to the matters specified warranted
his removal from office as a Judge of the Supreme Court of Queensland. The
report of the Commission of Inquiry concerning Justice Vasta was laid on
the table of the House on May 30, 1989. The Parliamentary Debates No. 16,
1988-89, from page 5146, indicate the procedure adopted by the,Legislative
Assembly of Queensland on the report of the Commission of Inquiry being
laid before the House. On May 30,1989, Mr. M. J. Ahern, Premier and
Minister for State Department, moved the House in the matter and while
saying that Justice Vasta be called upon to show cause why he should not be
removed from office, speaking on the motion the Premier said:-

“The Commissioners have found and reported to Parliament that there has
been behaviour by the judge such that his removal from office is warranted.
No responsible Parliament could in those circumstances do other than call
upon the judge to show cause why he should not be removed. That course is
consistent with history, convention, the law and proper constitutional
practice. The resolution proposed by the Government will give the judge
full and proper opportunity to show cause without embarking upon a re-
examination of those matters so minutely and carefully examination (Sic) by
the commissioners.

I intend to say no more. I urge all honourable members to adopt a similar
discretion in the interests of not prejudicing the judge and his right to
appear before us to attempt to show cause.”

(at p. 5147)

(Emphasis supplied)

In seconding the motion, the Minister for Justice and Attorney General, Mr.
P. J. Clauson said:-

“By establishing the Parliamentary Judges Commission, the Assembly
delegated to that body the difficult and arduous task of hearing the
evidence, determining question of credit and law, and making
recommendations which we will consider. Of course, the final decision rests
quite properly with the Legislative Assembly. The Parliamentary Commission
was established to assist Parliament, not to pre-empt its important
constitutional role.

I believe that Mr. Justice Vasta has the. right – and we have the duty to
allow him to address us, either personally or by his lega1 representatives
should he so wish but the purpose of this privilege is to assist us in our
difficult deliberations,

Finally, I also wish to emphasise to honourable members that it would be
inappropriate at this stage for there to debate on the findings of the
Commission and it would be better both for the dignity of this House and in
fairness to Mr. Justice Vasta that we give him the opportunity to address
us before the matter is fully debated and a decision is made by the
Assembly.”

(Emphasis supplied)

The Parliamentary Debates further show that Justice Vasta was given such an
opportunity which he availed. It is not necessary in the present case to
make any further reference to the proceedings against Justice Vasta.
Suffice it to say that the materials relating to the proceedings of removal
of Justice Vasta show clearly that he was given an opportunity to show
cause against his removal from office as a Judge by the Parliament when it
took up for consideration the recommendation of the Commission of Inquiry
which had found him guilty of misbehaviour warranting his removal; and the
cause shown by Justice Vasta before the Legislative Assembly was taken into
consideration in making the final decision.

46. We find no reason why in the constitutional scheme adopted in India,
the concerned Judge should not be given a similar opportunity when the
Parliament takes up for consideration the motion for his removal on a
finding of ‘guilty’ being made by the Committee constituted under the
Judges (Inquiry) Act, 1968. Such an opportunity is consistent with and is
also the requirement of fairness, an essential attribute of procedure for
any decision having civil consequences. We need say no more on this aspect.
We consider it necessary to say this much in view of our above opinion and
Shri F. S. Nariman’s submission with which the learned Attorney General
agreed that this is the kind of procedure which the Parliament is expected
to and is likely to follow in the present case, should the occasion arise
for commencement of the parliamentary process if the Committee finds the
learned Judge ‘guilty’ of misbehaviour.

47. If the constitutional scheme, as we have held, envisages and provides
for an opportunity to the concerned Judge to show cause against his removal
from office on the finding of ‘guilty’ recorded by the Inquiry Committee
being placed before the Parliament for its consideration and the Parliament
is required to take it into account before it decides to accept the finding
of ‘guilty’ and act on it by adopting the motion of removal by the
requisite majority or not to adopt the motion which would terminate the
proceedings for removal, it would indicate that the opportunity of this
kind in the scheme to show cause is against the inchoate finding of guilty
prior to the stage of making the final decision which alone is required to
be subject to judicial review. The clear intendment is that in such a
situation it is the Parliament ‘which should first consider the question
without there being any need for judicial review at that stage. This is so
because the misbehaviour is deemed to be proved, according to S. 6(3) of
the Act, only when the Parliament adopts the motion in the manner
prescribed. The remedy of judicial review to concerned Judge is available
only when his misbehaviour is ‘deemed to be proved’ in law and not against
the inchoate finding of ‘guilty’ made by the Inquiry Committee which may or
may not be acted upon by the Parliament. Another reason to support this
view appears to be that the proceedings for removal of a Judge are required
to be concluded at the earliest in public interest and, therefore, no
interdiction of the process is contemplated at the stage of an inchoate
finding of ‘guilty’ by the Inquiry Committee. An opportunity to the
concerned Judge at that stage also to show cause against that inchoate
finding of guilty’ fully safeguards his interest without the need for
judicial review at that stage, the scope for Parliament’s scrutiny of the
Committee’s finding of guilty being very wide.

48. Even though judicial review of the finding of ‘guilty’ made by the
Inquiry Committee may be permissible on limited grounds pertaining only to
legality, yet the power of the Parliament would not be so limited while
considering the motion for removal inasmuch as the Parliament is empowered
to not adopt the motion in spite of the finding of ‘guilty’ made by the
Committee on a consideration of the entire material before it which enables
it to go even into the probative value of the material on which the finding
is based and to decide the desirability of adopting the motion in a given
case. The Parliament decides by voting on the motion and is not required to
give any reasons for its decision if it chooses not to adopt the motion. We
have already indicated that the concerned Judge is to be given an
opportunity to show cause against his removal before the Parliament. There
is no reason to assume that the Parliament would not discharge its
obligation in the constitutional scheme with as much responsibility and
seriousness as is expected from any other organ of the State or authority
involved in the process of removal of a Judge. The nature and extent of
power entrusted to the Parliament in this process is a relevant factor to
indicate exclusion of judicial review till after the making of the order of
removal by the President in case the Parliament adopts the motion by the
requisite majority. The finding of ‘guilty’ made by the Committee is only a
recommendation to the Parliament to of commence its process and to act on
that finding which, at best, is tentative and inchoate at the stage of
submission of the report under S. 4 of the Act.

49. The contrary view would result in a serious anomaly. If the finding of
‘guilty’ made by the Committee by itself amounts to ‘proved misbehaviour’
for the purpose of Article 124(4), anomalous situation would arise if the
Parliament does not adopt the motion of removal thereafter. In that
situation the process would end and, notwithstanding a finding of ‘proved
misbehaviour’, the Judge cannot be removed from office. Such a piquant
situation at the end of the process of removal in spite of a finding of
‘proved misbehaviour’ could never be contemplated in the scheme and,
therefore, a construction which can lead to that absurdity must be
eschewed.

50. This being so, the remedy of judicial review to the concerned Judge has
to be only after the stage of his ‘proved misbehaviour’ is reached on
adoption of the motion by the Parliament which leads inevitably to the
order of removal made by the, President in accordance with Article 124(4).
Resort to judicial review by the concerned Judge, between the time of
conclusion of the inquiry by the Committee and making of the order of
removal by the President would be premature and is unwarranted in the
constitutional scheme.

51. This construction while protecting interest of the concerned Judge
gives full effect and due importance to the role of all the high
dignitaries involved in the process of removal, there being no reason to
doubt that each one of them would be fully alive to the significance of his
role and extent of obligation under the constitutional scheme. If, however,
any illegality occurs even then, the provision for judicial review at the
end of the process permits its correction without interdicting the process
in between.

52. We may at this stage deal with the other submission of Shri Kapil Sibal
that the Inquiry Committee is a Tribunal for the purpose of Art. 136 of the
Constitution.

53. Shri Kapil Sibal has urged that the Committee constituted by the
Speaker / Chairman in exercise of his power under S. 3(2) of the Judges
(Inquiry) Act, 1968 is a ‘Tribunal’ for the purpose of Art. 136 of the
Constitution and since an appeal would lie in this Court against the
findings of the said Committee, the report of the Committee is required to
be furnished to the Judge concerned in order to enable him to exercise that
right. Shri Sibal has pointed out that while recording its findings on the
charges framed by it the Committee exercises judicial functions. Reference
has been made to the provisions of S. 5 of the Act to show that the
Committee has the trappings of a Court. Relying on the decisions of this
Court in The Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd., 1950
SCR 459 Durga Shankar Mehta v. Thakur Raghuraj Singh, (1955) 1 SCR 267
Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, (1964) 6 SCR 594 and
Dev Singh v. Registrar, Punjab and Haryana High Court, (1987) 2 SCR 1005
Shri Sibal has contended that the Committee fulfils the tests laid down by
this Court for determining whether an authority is a tribunal for the
purpose of Art. 136. The learned Attorney General has supported Shri Sibal.

54. Before we deal with the question whether the Committee in the present
case fulfils the tests for determining whether a particular body is a
tribunal, we may briefly refer to some of the decisions of this Court
wherein this question has been considered.

55. In Jaswant Sugar Mills Ltd. v. Lakshmichand (1963) Supp 1 SCR 242 , the
expression ‘determination’, in the context in which it occurs in Art. 136,
has been construed to mean “an effective expression of opinion which ends a
controversy or a dispute by some authority to whom it is submitted; rider a
valid law of disposal”. It was further,held that the expression “order”
must also nave a similar meaning, except that, it need not operate to end
the dispute. The Conciliation Officer, while granting or refusing
permission to alter the terms of employment of workmen, in exercise of the
power conferred upon him by clause 29 of the order issued by the Governor
of Uttar Pradesh under the U. P. Industrial Disputes Act, 1947, was held
not-to be a Tribunal under Art. 136 though the Conciliation Officer was
required to act judicially. It was observed: –

“He is concerned in granting leave to determine whether there is a prima
facie case for dismissal or discharge of an employee or for altering terms
of employment, and whether the employer is actuated by unfair motives; he
has not to decide whether the proposed step of discharge or dismissal of
the employee was within the rights of the employer. His order merely
removes a statutory ban in certain eventualities, laid upon the Common law
right of an employer to dismiss, discharge or alter the terms of employment
‘according to contract between the parties. The Conciliation Officer has
undoubtedly to act judicially in dealing with an application under cl. 29,
but he is not invested with the judicial power of the State; he cannot
therefore be regarded as a ‘tribunal’ within the meaning of Art. 136 of the
Constitution.”

(Emphasis supplied)

56. In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd. (1992) 3 JT
(S C) 446 on a conspectus of the earlier decisions, it was held by the
Constitution Bench that the appropriate Government or authority while
granting or refusing permission for retrenchment of workmen under S. 25-N
of the Industrial Disputes Act, 1947, is not a tribunal on the view that
the position of the appropriate Government or authority exercising the said
power was not very different from that of a Conciliation Officer who was
held to be not a tribunal in Jaswant Sugar Mills (AIR 1963 SC 677 ). The
view taken was that there was no provision attaching finality to an order
under S. 25-N(2) and it was permissible for the workmen aggrieved by
retrenchment affected in pursuance of order granting permission for such
retrenchment to raise an industrial dispute and also open to the
appropriate Government to refer such a dispute for adjudication. It is
unnecessary to refer to the earlier decisions considered therein.

57. The decisions of this Court indicate that one of the considerations
which has weighed with the Court for holding a statutory authority to be a
tribunal under Art. 136 is finality or conclusiveness and the binding
nature of the determination by such authority.

58. It may be pointed out that in Dev Singh v. Registrar, Punjab & Haryana
High Court, (1987 (2) SCR , on which reliance was placed by Shri Sibal, it
was held that the High Court, while exercising its appellate powers under
Rule X(2) in Chapter 18-A of the Rules and Orders of the Punjab High Court,
Vol. I, against penalties inflicted by the District Judge in disciplinary
proceedings against ministerial servants, was acting purely
administratively and was not acting as a tribunal since it was not
resolving any dispute or controversy between two adversaries but only
exercising its power of control over the subordinate judiciary. It was
observed:

“In certain matters even Judges have to act administratively and in so
doing may have to act quasi-judicially in dealing with the matters
entrusted to them. It is only where the authorities are required to act
judicially either by express provisions of the statute or by necessary
implication that the decisions of such an authority would amount to a quasi
Judicial proceeding. When Judges in exercise of their administrative
functions decide cases it cannot be said that their decisions are either
judicial or quasi-judicial decisions In the appeal before the High Court,
the High Court was following its own procedure, a procedure not normally
followed in judicial matters. The High Court was not resolving any dispute
or controversy between two adversaries. In other words, while deciding this
appeal there was no lis before the High Court. The High Court was only
exercising its Power of control while deciding this appeal”

(Emphasis supplied)

59. We have earlier indicated the constitutional scheme in the process of
removal of a Judge as envisaged by clauses (4) and (5) of Article 124 read
with the provisions of the law enacted under Art. 124(5). It is. with
reference to that constitutional scheme that this contention has to be
examined.

60. It is no doubt true that while investigating into the charges framed by
it against the Judge, the Committee is required to act judicially and, as
held by this Court in Sub-Committee on Judicial Accountability (AIR 1992 SC
320 ), the said process is subject to judicial review. But the question is
whether in discharging this function the Committee acts as a tribunal. In
order to answer this question it is necessary to examine the nature of
determination made by the Committee.

61. In this context, it would be relevant to recall the scheme indicated
earlier. The determination by the Committee that the Judge is ‘not guilty’
of misbehaviour is alone final as it terminates the proceeding. However, in
that case there is no scope for judicial review of the finding of ‘not
guilty’ made by the Committee as already indicated. This aspect negates the
character of tribunal for this reason alone. In the other situation when
the Committee’s determination is that the Judge is ‘guilty’ of
misbehaviour, that finding is inchoate which may or may not be acted upon
by the Parliament. Finding of ‘guilty’ made by the Committee is in the
nature of recommendation to Parliament to commence its process and by
itself is not self-effectuating. Thus, the finding recorded by the
Committee where it finds the Judge guilty of any misbehaviour being subject
to acceptance by the Parliament is not final and is, therefore, not
conclusive.

62. No action is to be taken on the motion in case the Committee finds that
the Judge is not guilty of any misbehaviour. In that event if the Committee
has to be regarded as a tribunal under Art. 136, it would serve no useful
purpose and would also lead to the anomalous result that the Committee is
to be treated as a tribunal if it finds that the Judge is not guilty of any
misbehaviour but it is not to be treated as a tribunal if it finds that
the, Judge is guilty of any misbehaviour. The character of the Committee as
a tribunal cannot depend on the findings that are ultimately recorded by
it.

63. The misbehaviour of the Judge is ‘deemed to be proved’ according to S.
6(3) of the Act only when the motion is adopted by the Parliament and not
otherwise. The finding of ‘guilty’ made by the Committee does not by itself
bring about that result. An essential test of the determinative nature of
the finding, an attribute of the tribunal is lacking. The test indicated in
Dev Singh (AIR 1987 SC 1629 ) of the absence of the any dispute or lis
between two adversaries also negatives the contention that the Committee is
a tribunal for the purpose of Art. 136.

64. In effect, the report of the Inquiry Committee containing a finding
that the Judge is guilty of misbehaviour is in the nature of recommendation
for his removal which may or may not be acted upon by the Parliament while
considering the motion for removal according to the procedure laid down in
the Constitution for removal of a superior Judge, which is the only manner
of curtailing the fixed tenure of the Judge. This is for security of tenure
and thereby to ensure independence of the higher judiciary. The report of
the Committee being of this kind, in our opinion, the Inquiry Committee
cannot be treated as a ‘tribunal’ for the purpose of Art. 136 of the
Constitution. For this reason, no provision is made in the law enacted
under Art. 124(5) for supply of a copy of the report by the Committee to
the concerned Judge before submitting it to the Speaker as required by S. 4
of the Act in the manner prescribed in the Rules.

65. If the supply of a copy of the report to the Judge by the Committee
before its submission to the Speaker was contemplated by the law enacted
under Art. 124(5) that area would not be left blank in the provisions made
in the law while providing elaborately for submission of the report
together with its manner, including the number of copies, in S. 4 of the
Act and R. 9 framed thereunder. The absence of such a provision in this law
is a deliberate and not an inadvertent omission to emphasis absence of the
requirement which also matches the construction made by us of the
Constitutional scheme including the requirement of an opportunity to show
cause against removal to be given by the Parliament to the Judge.

66. Keeping in view the aforesaid provisions of the Act and the Rules and
specially.the fact that certain finding recorded by a member of the
Committee is not required to be disclosed in the given circumstances and
the finding recorded by the Committee holding that the Judge is guilty of
any misbehaviour is not final and conclusive, it is legally not permissible
to hold that the Committee is a tribunal under Art. 136 of the
Constitution. This contention of Shri Sibal is, therefore, rejected.

67. No doubt, on a motion for presenting an address to the President
praying for removal of the Judge being adopted in each House of Parliament
by the requisite majority in the manner prescribed, the misbehaviour or
incapacity of the Judge is ‘deemed to be proved and the order of removal
made by the President in accordance with Art. 124(4) would follow. The
question is: whether it is open to the concerned Judge so removed to
challenge the finding of ‘guilty’ made by the Inquiry Committee which leads
to the making of order of removal by the President after the President has
made the order of removal? Shri Nariman’s submission was that judicial
review of the order of removal may not be excluded but he could not
definitely say so. The learned Attorney General as well as Shri Sibal
submitted that it is likely that the remedy of judicial review may be
available to the concerned Judge after the order of removal has been made,
but it was extremely doubtful. Shri Sibal added that with the parliamentary
part of the process intervening, it appeared more unlikely that such a
remedy would be available to the concerned Judge after the order of removal
is made by the President.

68. On giving our anxious consideration to the submissions made by the
learned counsel, we find no embargo, in principle or authority, to infer
that in the Constitutional scheme adopted in India, judicial review of the
finding of guilty recorded by the Inquiry Committee during the statutory
part of the process is impermissible after that tentative, finding matures
into ‘proved misbehaviour culminating in the order of removal. The argument
of ‘now or never’ does not appeal to us and what appears more consistent in
the Constitutional scheme is that judicial review on permissible grounds is
available not now but at the end of the process after the order of removal,
if that stage is reached. In our view, this conclusion adequately protects
the right of the concerned Judge, ensures expeditious conclusion of the
process once it is commenced in the manner prescribed and accords with the
view that the scheme is ‘a judicious blend of the political and judicial
processes for the removal of Judges’. It ensures preservation of the right,
interest and dignity of the learned Judge and is commensurate with the
dignity of all the institutions and functionaries involved in the process.
It also excludes the needless meddling in the process by busy bodies
confining the participation in it to the Members of Parliament, the Speaker
/ Chairman and the Inquiry Committee comprising of high judicial
functionaries apart from the concerned Judge, if the allegations permitted
to be made only in the prescribed manner justify an inquiry into the
conduct of the Judge.

69. In the event of an order of removal being made by the President under
Article 124(4), the right of the concerned Judge to seek judicial review on
permissible grounds would be for quashing the order of removal made against
him on the basis that the finding of ‘guilty’ made by the Inquiry Committee
in its report which matured into ‘proved misbehaviour’ on adoption of the
motion by Parliament suffers from an illegality renderhig it void resulting
in the extinction of the, condition precedent for commencement of the
parliamentary process for removal in the absence of which there is no
foundation for considering or adopting the motion for presenting an address
to the President for removal of the Judge and, therefore, no authority in
the President to make the order of removal.

70. The permissible grounds for judicial review of the finding of ‘guilty’
reached by a statutory process are well-settled and whether the ground of
challenge in a given case is available for this purpose or not would be a
question of fact in each case. In view of the limited question raised in
this petition after conclusion of the proceedings before the Inquiry
Committee and the preparation of its report, there is no occasion for us to
examine the grounds of attack to a finding of’guilty’, if any, reached in
the present case. That question does not arise for consideration by us in
the present proceeding and, therefore, we need not say anything more on
this aspect.

71. We may, however, add that the intervention of the parliamentary part of
the process, in case a finding of guilty is made, which according to Shri
Sibal would totally exclude judicial review thereafter is a misapprehension
since limited judicial review even in that area is not in doubt after the
decision of this Court in Keshav Singh – (1965) 1 SCR 413 A reference to
this aspect was made also in Sub-Committee on Judicial Accountability,
(1991 (4) SCC 699 , while dealing with the meaning and scope of clause (5)
of Art. 124 of the Constitution. It was said therein as under:-

“Article 124(5) is in the nature of a special provision intended to
regulate the procedure for removal of a Judge under Art. 124(4) which is
not a part of the normal business of the House but is in the nature of
special business. It covers the entire field relating to removal of a
Judge. Rules made under Article 118 have no application in this field.

ARTICLE necessary to specifically prescribe that the law made under Art.
119 shall prevail over the rules of procedure made under Art. 118. Since
Articles 118 and 124(5) operate in different fields a provision like that
contained in Art. 119 was not necessary and even in the absence of such a
provision, a law made under Article 124(5) will override the rules made
under Article 118 and shall be binding on both the Houses of Parliament. A
violation of such law would constitute illegality and could not be immune
from judicial scrutiny under Article 122(1).”

(of SCC)

(Emphasis supplied)

72. At this stage, a reference to the nature and scope of judicial review
as understood in similar situations is helpful. In Administrative Law
(Sixth Edition) by H. W. R. Wade, in the chapter “Constitutional
Foundations of the Powers of the Courts” under the heading ‘The Sovereignty
of Parliament’, the effect of Parliament’s intervention is stated thus:-

“There are many cases where some administrative order or regulation is
required by statute to be approved by resolutions of the Houses. But this
procedure in no way protects the order or regulation from being condemned
by the Court, under the doctrine of ultra vires, if it is not strictly in
accordance with the Act. Whether the challenge is made before or after the
Houses have given their approval is immaterial.”

(Emphasis supplied)

Later at p. 411, Wade has said that ‘in accordance with constitutional
principle, parliamentary approval does not affect the normal operation of
judicial review’. while discussing ‘Judicial Review’, Wade indicates the
position thus –

“As these cases show, judicial review is in no way inhibited by the fact
that rules or regulations have been laid before Parliament and approved,
despite the ruling of the House of Lords that the test of unreasonableness
should not then operate in its normal way. The Court of Appeal has
emphasised that in the case of subordinate legislation such as an order in
Council approved in draft by both Houses, ‘the Courts would without doubt
be competent to consider whether or not the Order was properly made in the
sense of being intra vires’.”

73. The clear indication, therefore, is that mere parliamentary approval of
an action or even a report by an outside authority when without such
approval, the Action or report is ineffective by itself does not have the
effect of excluding judicial review on the permissible grounds. In the
present context, the only question for us to consider is whether judicial
review of the finding of guilty in the report of the Inquiry Committee
constituted under the Judges (Inquiry) Act, 1968 would be permissible on
the available grounds of judicial scrutiny after the making of an order of
removal by the President pursuant to adoption of the motion for removal by
the Parliament based on the Inquiry Committee’s report. There is no ground
to hold that judicial review is barred for this reason.

74. In our opinion, availability of judicial review to the learned Judge,
in case the need arises as a result of the order of removal made by the
President, after the making of such an order cannot be doubted in view of
the vide powers of the Supreme Court of India.

75. Judicial review is the exercise of the Courts’ inherent power to
determine legality of an action and award suitable relief and thereby
uphold the rule of law. No further statutory authority is needed for the
exercise of this power which is granted by the Constitution of India to the
superior courts ‘ There is no reason to take the view that an order of
removal of a Judge made by the President of India under Art. 124(4) of the
Constitution is immune from judicial review on permissible grounds to
examine the legality of the finding of guilty made by the Inquiry Committee
during the statutory process for removal which is the condition precedent
for commencement of the parliamentary process culminating in the making of
order of removal by the President.

76. In Regina v. Boundary Commission for England, Ex parte Foot and others,
Regina v. Boundary Commission for England, Ex parte Gateshead Borough
Council and others (1983) 1 QB 600 : [1983] 2 W.L.R. 458, CA, the Court of
Appeal held that the judicial review by the High Court was permissible to
consider whether the Boundary Commission had properly carried out the
instructions given by the Parliament in its report under the terms of the
House of Commons (Redistribution of Seats) Act, 1979. The conclusion of the
Court of Appeal on examining the merits was as under:-

“Parliament has thought it right to set up independent advisory bodies, the
Boundary Commissions, to advise it and, in so doing, it has given the
commissions instructions as to the criteria to be employed in formulating
that advice. For good reasons, which we can well understand, Parliament has
not asked the Courts to advise it and it has not provided for any right of
appeal to the courts from the advice or proposed advice of the Boundary
Commissions.

This does not mean that the Courts have no part to play. They remain
charged with the duty of helping to ensure that the instructions of
Parliament are carried out. This is done by a procedure known as judicial
review. Precisely what action, if any, should be taken by the courts in any
particular case depends upon the circumstances of that case including, in
particular the nature of the instruction which have been given by
Parliament to he minister, authority or body concerned.”

(Emphasis supplied)

On that conclusion, the Court of Appeal declined to interfere. The House of
Lords dismissed the further appeal. Judicial review of the Action of an
independent advisory body set up by the Parliament to advise it is clearly
indicated by this decision.

77. In Nottinghamshire County Council and Secretary of State for the
Environment, City of Bradford Metropolitan Council and Secretary of State
for the Environment, (1986) 1 AC 240 : [1986] 2 W.L.R. 1, the House of
Lords specified the limits of judicial review ‘in a matter of public
financial administration that had been one for the political judgment of
the Secretary of State and the House of Commons’ clearly indicating
existence of the power of review in such matters while circumscribing
limits thereof. We are at present concerned only with existence of the
power of judicial review in such matters and not the extent of its limits.

78. This is also the indication from the decision of the Court of Appeal in
Regina v. Her Majesty’s Treasury, Ex parte Smedley, (1985) 1 QB 657 :
[1985] 2 W.L.R. 576, CA, wherein the relevant passages are as under.-

” It therefore behoves the courts to be ever sensitive to the paramount
need to refrain from trespassing upon the province of Parliament or, so far
as this can be avoided, even appearing to do so. Although it is not a
matter for me, 1 would hope and expect that Parliament would be similarly
sensitive to the need to refrain from trespassing upon the province of the
courts.”

“I have somewhat laboured these distinctions between the respective
functions of Parliament and Her Majesty in Council in the present case, for
the purpose of demonstrating the somewhat limited role which is allotted to
Parliament by S. 1(3) of the Act of 1972. This role is analogous to a power
of veto. If it withholds its approval from the draft Order in Council, the
Order cannot be made. If, however, the approval of Parliament is given, Her
Majesty in Council is left with a discretion whether or not to make the
Order. There is no possible question of the court seeking or being able to
control the exercise of the Parliamentary power of veto. However, 1 can see
no reason why the exercise of the last mentioned discretion given to Her
Majesty in Council should not be open to attack in the courts by the
process of judicial review, subject to the stringent restrictions on any
such attack imposed by what has come to be known as the Wednesbury
principle (Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation, [1948] 1 K.B. 223, 229)”

79. The contention that the remedy of judicial review would not be
available to the learned Judge once the parliamentary part of the process
of removal commences on a finding of guilty being made in the report of the
Inquiry Committee, even when it leads to the making of an order of removal
against him on account of the intervention of the parliamentary process is,
in our opinion, based on a misapprehension and is, therefore, not
acceptable to us.

80. We may briefly refer to the indication available of judicial review in
similar situations in some other countries and als o mention the two
decisions in Halsted L. Ritter v. The United States, 84 C Cls. 293 and Adam
Clayton Powell v. John W. McCormark, (1969) 23 L Ed 2d 491. Ritter was a
Judge of the District Court in the United States who was impeached for his
removal from office in 1936. The House of Representatives of the United
States adopted articles of impeachment against him which were duly
presented to the Senate of the United States sitting as the High Court of
Impeachment. Ritter filed a suit to recover his salary for the Deriod in
which the question arose of the Court’s jurisdiction to review the
conclusion of the United States Senate in a case of impeachment of a Judge.
Ritter’s suit was dismissed as the Court came to the conclusion that it had
no authority to review the impeachment proceedings held in the Senate since
‘the Senate was the sole tribunal that could take jurisdiction of the
articles of mpeachment presented to that body and its decision is final’.
Apart from the fact that he law in United States has undergone considerable
change since Ritter’s case, it appears to us that Ritter is clearly
distinguishable since the process for removal of a Judge there was entirely
political, no part of it being statutory, and Article 1 of the U.S.
Constitution states that the House ‘shall have sole power of impeachment’
and that ‘the Senate shall have the sole power to try all impeachments’. On
the contrary, the constitutional scheme in India, as already indicated, is
that the scheme is composite being a judicious blend of statutory and
parliamentary components.

81. Adam Clayton Powell v. John W. “McCormack, (1969) 23 L Ed 2d 491 – is a
decision rendered in 1969. It was held by the U.S. Supreme Court that the
House of Representatives has no power to exclude from its membership a
person duly elected who meets the requirements specified in the Federal
Constitution; and such a person on being excluded from membership by a
resolution of the House is entitled to a declaratory judgment that his
exclusion was unlawful. It was held that the case was justiciable since the
House of Representatives had no power to exclude from its membership any
person who was duly elected and who met the requirements specified in the
Constitution, there being a distinction between exclusion from Congress and
expulsion therefrom. It was held in Powell while dealing with the question
of justiciability and the ‘political question doctrine’ relating to it, as
under:-

Respondents’ first contention is that this ‘case presents a political
question because under Art. 1, S. 5, there has been a “textually
demonstrable constitutional commitment” to the House of the “adjudicatory
power” to determine Powell’s qualifications. Thus it is argued that the
House, and the House alone, has power to determine who is qualified to be a
member.

In order to determine whether there has been a textual commitment to a co-
ordinate department of the Govt. we must interpret the Constitution. In
other words, we must first determine what power the Constitution confers
upon the House through Art. 1, S. 5, before we can determine to what
extent, if any, the exercise of that power is subject to judicial review”

“In other words, whether there is a “textually demonstrable constitutional
commitment of the issue to a co-ordinate political department ” of
Government and what is the scope of such commitment are questions we must
resolve for the first time in this case. For, as we pointed out in Baker v.
Carr (1962 (369) US 186), Supra, “(d)eciding whether a matter has in any
measure been committed by the Constitution to another branch of Government,
or whatever the Action of that branch exceeds whatever authority has been
committed is itself a delicate exercise in constitutional interpretation,
and is a responsibility of this Court as ultimate interpreter of the
Constitution.”

(Emphasis supplied)

82. Powell’s case (1969 (23) Law Ed 2d 91) indicates availability of
Judicial Review in certain situations even where the entire process is
within the House.

83. Salleh Abas v. Abdul Hamid, 1988 LRC 25 – was a case relating to
removal of a Supreme Court Judge in Malaysia. Article 125 of the
Constitution of Malaysia is similar to Art. 124 of the Constitution of
India. Clauses (2), (3) and (4) of Article 125 of the Constitution of
Malaysia provide that a Judge of the Supreme Court shall not be removed
from office except in accordance with the provisions of the Article; clause
(3) provides for removal on the ground of misbehaviour or of inability,
from infirmity of body or mind or any other cause, properly to discharge
the functions of his office and prescribes the appointment of a tribunal in
accordance with clause (4) when such a situation arises; and then only is
there removal of a Judge from office on the recommendation of the tribunal.
Cl. (4) therein prescribes the composition of the tribunal by appointment
of the Judges specified. The question arose of jurisdiction of the Court to
restrain the tribunal appointed under Art. 125(3) from submitting its
recommendations or report of the inquiry made by it in connection with the
removal of a Judge of the Supreme Court of Malaysia. The Supreme Court of
Malaysia expressed its unanimous view as under.-

“The function of the Tribunal appointed under Art. 125(3) of the
Constitution is to enquire and investigate on the representation and then
report to the Yang di-Pertuan Agong with any recommendation it may make.
The Tribunal is a body which investigates and does not decide. It is
performing a constitutional function. The tribunal should not therefore be
restrained from performing its constitutional function.

Finally, the members of the Tribunal are appointees of the Yang di-Pertuan
Agong. From the language of Art. 125 it is clear the Yang di-Pertuan Agong
is entitled to the report of the Tribunal. To restrain the Tribunal from
submitting their report is in effect to restrain His Majesty from receiving
the report.”

Emphasis supplied)

Injunction was refused to restrain submission of the report by the Tribunal
constituted under Art. 125(3).

84. Raoul Berger, Impeachment: The Constitutional Problems (1973), in
Chapter III dealing with ‘Judicial Review’, states thus: –

” If there be indeed a conflict between the judicial jurisdiction in “all
cases” and the Senates “sole power to try all impeachments, “our course has
been marked out by Chief Justice Marshall: “When two principles come in
conflict with each other, the Court must give them both a reasonable
construction, so as to preserve them both to a reasonable extent,” a canon
earlier cited by Elbridge Gerry in the First Congress. We need only read
the power to “try” as a grant of jurisdiction to try a case in the first
instance; leaving untouched an appeal to the Supreme.Court from action in
excess of jurisdiction – a case “arising under” the Constitution, An
accommodation of a “trial” by the Senate with an appeal from violation of
constitutional boundaries would harmonize with the Powell holding that the
Article 1, S. 5(1) provision that “each House shall be the Judge of the
qualifications of its own members” does not bar inquiry into action in
excess of jurisdiction”

(Emphasis supplied)

Discussing further ‘judicial review’ in the context of impeachment
proceedings, Raoul Berger states at p. 116 that ‘it was never intended that
Congress should be the final judge of the boundaries of its own powers’ and
proceeds to say, thus-

“To this it may be answered that just as the ultimate guarantee that the
judiciary will not step out of bounds is the self-restraint of the Court,
so the Senate too must be trusted to exercise self-restraint. It is one
thing, however, to expect self-restraint of judges schooled to disciplined,
dispassionate judgment, and not subject to the gusts of faction, and
something else again to expect self-restraint of a body predominantly
political in character and which both in England and the United States has
been unable to shake off partisan considerations when sitting in judgment.
Self-restraint could be relied upon with respect to the judiciary because,
in the words of Hamilton, they “have neither FORCE nor WILL, but merely
judgment,” and were “therefore the least dangerous to the political rights
of the Constitution”

Constitutional limits, as Powell v. McCormick ((1969) 23 L Ed 2d 491 )
again reminds us, are subject to judicial enforcement; and I would urge
that judicial review of impeachments is required to protect the other
branches from Congress’ arbitrary will. It is hardly likely Framers, so
devoted to, “checks and balances,” who so painstakingly piled one check of
Congress on another, would reject a crucial check at the nerve center of
the separation of powers. They scarcely contemplated that their wise
precautions must crumble when Congress dons its “judicial” hat, that then
Congress would be free to shake the other branches to their very
foundations. Before we swallow such consequences, the intention of the
Framers to insulate congressional transgressions of the “limits” they
imposed upon impeachment should be proved, not casually assumed. The
Constitution, said the Supreme Court, condemns. “all arbitrary exercise of
power;” “there is no place in our constitutional system for the exercise of
arbitrary power.” The “sole power to try” affords no more exemption from
that doctroine than does the sole power to legislate, which, it needs no
citation, does not extend to arbitrary acts.

Finally, if it be assumed that the “sole power to try” conferred insulation
from review, it must yield to the subsequent Fifth Amendment provision that
“no person” shall “be deprived of life, liberty, or property without due
process of law.” If the Constitution does in fact place limits upon the
power of impeachment, action beyond those limits is without “due process of
law” in its primal sense: “when the great barons of England wrung from King
John the concession that neither their lives nor their property should be
disposed of by the crown, except as provided by the law of the land, they
meant by ‘law of the land’ the ancient and customary laws of the English
people. “In our system the place of the “ancient and customary laws” was
taken by the Constitution; and Article VI, S. 2, expressly makes the
Constitution “the supreme law of the land.” Injurious action not authorized
by the Constiiution is therefore contrary to the “law of the land” and is
forbidden by the due process clause. “Due process” has been epitomized by
the Court as the “protection of the individual against arbitrary action.”
One who enters Government service does not cease to be a “person,, within
the Fifth Amendment; and an impeachment for offences outside constitutional
authorization would deny him the protection afforded by “due process.” It
would be passing strange to conclude that a citizen may invoke the judicial
“bulwark,’ against a twenty-dollars fine but not against an
unconstitutional impeachment, removal from and perpetual disqualification
to hold federal office. Here protection of the individual coincides with
preservation of the separation of powers; and the interests of the
assaulted branch, as Judge George Wythe perceived, are one with the
interest of “the whole community.” Those interests counsel us ‘to give full
scope of the “strong American bias in favour of a judicial determination of
constitutional and legal issues,” and to deny insulation from review of
impeachments in defiance of constitutional bounds.” (Emphasis supplied)

85. American Bar Association Journal, Vol. 60 (June 1974) contains an
interesting article “Is Judicial Review of Impeachment Coming? by Daniel A.
Rezneck, wherein judicial review in the case of an entirely political
process has been discusssed. An extract therefrom is as under:-

“Baker and Powell Opened the Door If Powell was entitled to judicial review
of the legality of his exclusion from the House, it is difficult to see why
a President may not seek,judicial review in the event of his impeachment
and conviction. Raoul Berger of Harvard, perhaps the country’s leading
authority on the law of impeachment, concluded in his 1973 Book,
Impeachment: The Constitutional Problems, that Baker v. Carr (1962 (369) US

186) and Powell v. McCormack ((1969) 23 L Ed 2d 491 ) together open the
‘way for judicial review of the impeachment process to assure that it
conforms to constitutional standards.”

86. The effect of Powell is also considered in Texas Law Review, Vol. 68,
Number 1, November 1989, under heading ‘Judicial Review of Impeachments’. A
useful extract therefrom is as under:-

“The Supreme Court’s decision in Powell v. McCormack also indicates that
there may be judicial review of any aspects of an impeachment proceeding.
In Powell, the Supreme Court held that whether the House of Representatives
followed the proper procedure in excluding Adam Clayton Powell from taking
his seat in the House was not a political question. The Powell Court also
held that although Congress has the dual powers to expel and to exclude its
members, Congress is not empowered to apply expulsion standards in
proceedings to exclude a representative.

The lesson of Powell is that the Supreme Court may use judicial review to
determine whether Congress followed the proper procedure for making the
political decision committed to it by the Constitution Also, under Powell
the Federal Courts may decide whether Congress has chosen the correct
procedure to accomplish its asserted purposes

(Emphasis supplied)

87. In S.P.Gupta v. Union of lndia,1981 Supp SCC 87 Venkataramiah, J. as
he then was, after stating that ‘the doctrine of political question which
was holding the field long time back in the United States of America has
now been exploded’, referred to the decisions of the U. S. Supreme Court in
Baker v. Carr 1962 (369) US 186 and Powell v. McCormack, (1969) 395 US 486:
(1969) 23 L Ed 2d 491, as well as the opinion of R. Berger and then
summarised the position in India as under:-

“In our country which is governed by a written Constitution also many
questions which appear to have a purely political colour are bound to
assume the character of judicial questions. In the State of Rajasthan v.
Union of India, (1978) 1 SCR 1 the Government’s claim that the validity of
the decision of the President under Art. 365(1) of the Constitution being
political in character was not justifiable on that sole ground was rejected
by this Court. Bhagwati, J. in the course of his judgment observed in that
case at SCR pages 80-81

It will, therefore, be seen that merely because a question has a political
colour, the Court cannot fold its hands in despair and declare “Judicial
hands off”. So long as a question arises whether an authority under the
Constitution has acted within the limits of its power or exceeded it, it
can certainly be decided by the Court. Indeed it would be its
constitutional obligation to do so. It is necessary to assert in the
clearest terms, particularly in the context of recent history, that the
Constitution is suprema lex, the paramount law of the land, and there is no
department or branch of Government above or beyond it. Every organ of
Government, be it the executive or the legislature or the judiciary,
derives its authority from the Constitution and it has to act within the
limits of its authority. No one howsoever highly placed and no authority
howsoever lofty can claim that it shall be the sole judge of the extent of
its power under the Constitution or whether its action is within the
confines of such power laid down by the Constitution. This Court is the
ultimate interpreter of the Constitution and to this Court is assigned the
delicate task of determining what is the power conferred on each branch of
Government, whether it is limited, and if so, what are the limits and
whether any action of that branch transgresses such limits.It is for this
Court to uphold the constitutional values and to enforce the constitutional
limitations. That is the essence of the rule of law.

The objection that the questions involved in these petitions are non-
justiciable merely on the ground that they are political in character has
to be negatived. But it is made clear that the courts are not entitled to
enquire into every sort of question without any limitation. There is still
a certain class of questions such as international relations, national
security which cannot be entertained by the Court. It is for the Court to
determine in each case whether a particular question should be debated
before it or not.” (Paras 981 & 982

(Emphasis supplied)

88. The above discussion indicates the modern trend to accept judicial
review in certain situations within circumscribed limits even where the
entire process is political since the ‘political question doctrine’, as
discussed in Powell, permits this course. In such cases where the entire
process is political, judicial review to the extent permissible on
conclusion of the political process is not doubted. There appears to be no
reason in principle why judicial review at the end of the entire process of
removal of a Judge in India, where it is a composite process of which the
political process is only a part, can be excluded after conclusion of the
entire process including the political process. It appears to us that the
view we have taken is reinforced by the law in other systems as indicated
above.

89. At the commencement of the hearing of this petition, the learned
Attorney General made the statement that the Speaker would await the
declaration of law made in our decision and abide by it. A statement to
this effect was also made by Shri F. S. Nariman on behalf of the Inquiry
Committee. Consistent with the statement made by the learned Attorney
General, the Hon’ble Speaker of the Lok Sabha also extended the time for
submission of the report by the Committee, to give us reasonable time to
prepare our opinion after conclusion of the hearing. This augurs well for
the future.

90. Willis in Constitutional Law of the United States (1936) making ‘final
evaluation of the work of the Supreme Court’ speaks about the U.S. Supreme
Court thus:

“Without the Active co-operation of justices of the Supreme Court, the
Constitution would be a dead letter. They protect alike their own powers,
executive powers, and legislative powers against encroachments and designs
of the other departments It does not have the positive power over the purse
nor over the sword, nor any other powers which could actually overthrow our
Government, but the negative power of declaring the law, which has kept our
whole mighty fabric of Government from rushing to destruction.

The Court has not been infallible. It has made mistakes. It sometimes has
run counter to the deliberate and better judgment of the c community. But
the final judgment of the American people will unquestionably be that their
constitutional rights are safe in the hands of the federal judiciary.
Throughout the whole history of the United States, it furnishes the highest
example of adequate results of any branch of our Government. it has averted
many a storm which has threatening our peace and has lent its powerful aid
in uniting the whole country in the bonds of justice. To paraphrase the
language of William Wirt, “if the judiciary were struck from our system”
there would be little of value that would remain. The Government cannot
exist without it. “It would be as rational to talk of a solar system
without a sun” as to talk of a Government in the- United States without the
doctrine of the supremacy of the Supreme Court.”

91. The role of the Supreme Court of India is no less significant or wide
as envisaged in the Constitution which came to be enacted after the role of
the U.S. Supreme Court in a comparable constitutional scheme had come to be
so understood and appreciated.

92. In this context, it is also useful to recall the observations of R. S.
Pathak, C.J., speaking for the Constitution Bench in Union of India v.
Raghubir Singh (Dead) by LRs. (1989) 2 SCC 754 about the; nature and scope
of judicial review in India. The learned Chief ‘Justice stated thus:-

” It used to be disputed that Judges make law. Today, it is no longer a
matter of doubt that a substantial volume of the law governing the lives of
citizens and regulating the functions of the State flows from the decisions
of the superior courts. “There was a time,” observed Lord Reid, “when it
was thought almost indecent to suggest that Judges make law – they only
declare it But we do not believe in fairy tales any more”. In countries
such as the United Kingdom, where Parliament as the legislative organ is
supreme and stands at the apex of the Constitutional structure of the
State, the role played by judicial law-making is limited

And Ungoed Thomas, J. in Cheney v. Conn (1968 (1) All ER 779 : [1968] 1
W.L.R. 242 ) referred to a Parliamentary statute as “the highest form of
law which prevails over every other form of law”. The position is
substantially different under a written Constitution such as the one which
governs us. The Constitution of India, which represents the Supreme Law of
the land, envisages three distinct organs of the State, each with its own
distinctive functions, each a pillar of the State. The range of judicial
review recognised in the superior judiciary of India is perhaps the widest
and the most extensive known to the world of lawWith this impressive
expanse of judicial power, it is only right that the superior courts in
India should be conscious of the enormous responsibility which rest on
them. This is specially true of the Supreme Court, for as the highest Court
in the entire judicial system the law declared by it is, by Article 141 of
the Constitution, binding on all Courts within the territory of India.”

“This need for adapting the law to new urges in society brings home the
truth of the Holmesian aphorism that “the life of the law has not been
logic it has been experience”, and again when he declared in another study
that “the law is forever adopting new principles from life at one end”, and
“sloughing off” old ones at the other. Explaining the conceptual import of
what Holmes had said, Julius Stone elaborated that it is by the
introduction of new extra-legal propositions emerging from experience to
serve as premises, or by experience-guided choice between competing legal
propositions, rather than by the operation of logic upon existing legal
propositions, that the growth of law tends to be determined.

Legal compulsions cannot be limited by existing legal propositions, because
there will always be, beyond the frontiers of the existing law, new areas
inviting judicial scrutiny and judicial choice-making which could well,
affect the validity of existing legal dogma. The search for solutions
responsive to a changed social era involves a search not only among
competing propositions of law, or competing version of legal proposition,or
the modalities of an indeterminancy such as “fairness” or ”
reasonableness”, but also among propositions from outside the ruling law,
corresponding to the empirical knowledge or accepted values of present time
and place, relevant to the dispensing of justice within the new
parameters.”.

(Emphasis supplied)

It is this onerous constitutional obligation which we have attempted to
discharge keeping in view the limitations within which the exercise has to
be performed.

93. We have already indicated the constitutional scheme in India and the
true import of clauses (4) and (5) of Article 124 read with the law enacted
under Article 124(5), namely, the Judges (Inquiry) Act, 1968 and the Judges
(Inquiry) Rules, 1969, which, inter alia contemplate the provisions for an
opportunity to the concerned Judge to show cause against the finding of
‘guilty’ in the report before the Parliament takes it up for consideration
along with the motion for his removal. Along with the decision in Keshav
Singh (AIR 1965 SC 745) has to be read the declaration made in Sub-
Committee on Judicial Accountability that ‘a law made under Article 124(5)
will override the Rules made under Article 118 and shall be binding on both
the Houses of Parliament. A violation of such a law would constitute
illegality and could not be immune from judicial scrutiny under Article
122(1)’. The scope of permissible challenge by the concerned Judge to the
order of removal made by the President under Article 124(4) in the Judicial
review available after making of the order of removal by the President will
be determined on these considerations. This question in the context of the
process and progress of the statutory inquiry prior to recording of the
findings in the report of the Inquiry Committee does not arise in this case
and has not been raised at the instance of the concerned Judge even in the
connected matter, W.P. (C) No. 149 of 1992 –Shri Krishna Swami v. Union of
India & others , which was filed earlier and, therefore, we express no
opinion on the scope of judicial review during the progress of inquiry
prior to its conclusion. The reasons for declining to consider those
questions at the instance of a third person in the absence of the concerned
Judge facing the inquiry are given by us in the separate judgment delivered
by us in that matter.

94. In sum, the position is this: Every Judge of the Supreme Court and the
High Courts on his appointment is irremovable from office during his tenure
except in the manner provided in clauses (4) and (5) of Article 124 of the
Constitution of India. The law made by the Parliament under Article 124(5),
namely, the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969
framed thereunder, is to be read along with Article 124(4) to find out the
constitutional scheme adopted in India for the removal of a Judge of the
Supreme Court or a High Court. The law so enacted under Article 124(5)
provides that any accusation made against a sitting Judge to enable
initiation of the process of his removal from office has to be only by not
less than the minimum number of Members of Parliament specified in the Act,
all other methods being excluded. On initiation of the process in the
prescribed manner, the Speaker/ Chairman is to decide whether the
accusation requires investigation. If he chooses not to act on the
accusation made in the form of motion by the specified minimum number of
Members of Parliament, the, matter ends there. On the other hand, if the
Speaker/ Chairman, on a consideration of the materials available and after
consulting such persons as he thinks fit, forms the opinion that a prima
facie case for investigation into the accusation against the Judge is made
out, he constitutes a committee of judicial functionaries in accordance
with Section 3(2) of the Act. If the Inquiry Committee at the conclusion of
the investigation made by it records a finding that the Judge is ‘not
guilty’, the process ends with no one, not even the Parliament, being
empowered to consider much less question the finding of ‘not guilty’
recorded by the Inquiry Committee. If the finding made by the Inquiry
Committee is that the Judge is ‘guilty’, then the Parliament considers the
motion for removal of the Judge along with the Committee’s report and other
available materials including the cause, if any, shown by the concerned
Judge against his removal for which he has to be given an opportunity after
submission of the report to the Speaker/ Chairman under Section 4(2) of the
Act. To be effective, this opportunity must include supply of a copy of the
report to the concerned Judge by the Speaker/Chairman while causing it to
be laid before the Parliament under Section 4(3). If the Parliament does
not adopt the motion for removal of the Judge, the process ends there with
no challenge available to any one. If the motion for removal of the Judge
is adopted by the requisite majority by the Parliament culminating in the
order of removal by the President of India under Article 124(4) of the
Constitution, then only the concerned Judge would have the remedy of
judicial review available on the permissible grounds against the order of
removal. The statutory part of the process, by which a finding of guilty is
made by the Inquiry Committee, is subject to judicial review as held in
Sub-Committee on Judicial Accountability, (AIR 1992 SC 320 ) but in the
manner indicated herein, that is, only in the event of an order of removal
being made and then at the instance of the aggrieved Judge alone. The
Inquiry Committee is statutory in character but is not a tribunal for the
purpose of Article 136 of the Constitution.

95. The view we have taken is in complete accord with the majority opinion
in sub-committee on Judicial Accountability that the statutory part of the
process of removal of a Judge is subject to judicial review. The question
of the stage and the situation in which the remedy of judicial review
becomes available and by whom it can be availed did not arise for
consideration in the earlier case and, therefore, this further question
which now arises before us was not dealt with therein. The real controversy
in the earlier decision was whether the entire process of removal of a
Judge in our constitutional scheme is parliamentary to attract the doctrine
of lapse to the motion for removal of the learned Judge on dissolution of
the Ninth Lok Sabha or a part thereof was statutory to which the doctrine
of lapse of motions in the Parliament could have no application. It was in
this context that the majority in that decision took the view that the
process was statutory till the Parliament takes up the motion for
consideration on a finding of ‘guilty’ being made by the Inquiry Committee
in its report which is submitted to the Parliament; and the Ninth Lok Sabha
having been dissolved before commencement of the Parliamentary process,
there was no question of the motion lapsing at that stage which was
statutory.

96. On a careful reading of the earlier decision in Sub-Conimittee on
Judicial Accountability, (AIR 1992 SC 320 ) we are unable to accept the
submission, that the only logical corollary of the earlier decision is that
the concerned Judge has a right to obtain a copy of the report of the
Inquiry Committee before commencement of the parliamentary process to
enable him at this stage to avail the remedy of judicial review in case the
Committee has recorded a finding of ‘guilty’ against the learned Judge. We
have adequately indicated how the rights of the learned Judge are fully
protected on the construction we have made of the relevant provisions and
the manner in which we have read the Constitutional scheme adopted in India
for the removal of a superior Judge in accordance with clauses (4) and (5)
of Article 124.

97. We have no doubt that every constitutional functionary and authority
involved in the process is as much concerned as we are to find out the true
meaning and import of the scheme envisaged by the relevant constitutional
and statutory provisions, in order to prevent any failure by any one to
discharge the constitutional obligations avoiding transgression of the
limits of the demarcated powers. No doubt, there are certain grey areas. We
have attempted to illuminate them with the able assistance of the learned
counsel who are equally concerned that the law should be unambiguously and
correctly stated to avoid any possible misapplication thereof. All that is
necessary for us to do is to declare the correct constitutional position as
we are able to discern, there being no need to issue any specific writ or
direction to any authority and to ‘leave the different organs of the State
to consider matters falling within the orbit of their respective
jurisdiction and powers’ as was done in the earlier case. We do so,
accordingly, herein.

98. Brother Kasliwal expressly says in his separate opinion that he fully
agrees with us. Brother K. Ramaswamy, however, appears to have differed in
some area. On a reconsideration of the matter in the light of the
exposision of law made by Brother K. Ramaswamy in his separate opinion
circulated to us, we find that to a large extent he agrees with us, but in
the area of his disagreement, we regret our inability to concur with him.

99. Consequently, for the aforesaid reasons, this Writ Petition is disposed
of by declaring the law as contained in the judgment.

KASLIWAL, J. (concurring with majority view):- 100. I have gone through the
judgment prepared by my learned brothers Justice J. S. Verma and Justice K.
Ramaswamy. 1 fully agree with the judgment prepared by Justice J. S. Verma
and regret my inability to agree with the view taken by Justice K.
Ramaswamy. However, looking to the questions raised being of seminal
importance, 1 would like to express my own views also in the matter.

101. This petition has been filed by the wife of Mr. Justice V. Ramaswami,
a sitting Judge of this Court. 1 need not recapitulate the facts of this
case which have already. been stated in detail in the judgment prepared by
my learned brothers. The short controversy raised in the petition now
relates to an issue of a Writ of Mandamus directing the Committee appointed
under the Judges (Inquiry) Act, 1968 (hereinafter referred to as the ‘Act’)
to forward a copy of the report as and when prepared, to Justice V.
Ramaswami. It has been also prayed that a direction be also given to the
Committee to withhold the forwarding of the report to the Hon’ble Speaker
of the Lok Sabha simultaneously, so that Justice V. Ramaswami may get
reasonable time to initiate appropriate proceedings, in the event he wishes
to challenge all or any part of the said report.

102. The above relief has been sought mainly on two grounds:

(1) That a Constitution Bench of this Court in its judgment in Sub-
Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699
has already held that the proceedings before the Committee from its
inception till the time the report of the Committee is placed before
Parliament are deemed to be proceedings outside Parliament and this part
being statutory can be subjected to judicial review.

(2) If a copy of the report is not given to Justice V. Ramaswami before
such report is forwarded to the Hon’ble Speaker for the purpose of taking
out appropriate proceedings, it would not only defeat the Constitutional
right of Justice V. Ramaswami, but would also violate principles of natural
justice.

103. It may be noted at the inception that the petitioner has not
challenged The Judges (Inquiry) Act, 1968 or The Judges (Inquiry) Rules,
1969 (hereinafter referred to as the ‘Rules’) framed in exercise of the
powers conferred by sub-section (4) of Section 7 of The Judges (Inquiry)
Act, 1968. We have thus, to consider the scheme of the provisions of the
Act and the Rules as well as the provisions of the Constitution, in order
to decide whether the relief sought by the petitioner can be given or not.
Though, the Act deals with the procedure for the investigation and proof of
misbehaviour or incapacity of a Judge, but in the present case we are only
concerned with the investigation and proof of misbehaviour and not with the
incapacity of the Judge to discharge his duties efficiently due to any
physical or mental incapacity. Section 3 of the Act provides for
investigation into misbehaviour and for that purpose it is necessary that a
notice for such motion has to be given by not less than hundred members of
the House of the People in case of such notice given in the House of the
People and not less than fifty members in the case of a notice given in the
Council of States. the Speaker or the Chairman, as the case may be, after
consulting such persons, if any, as he thinks fit and after considering
such materials, if any, as may be available to him, either admit the motion
or refuse to admit the same. If such motion is admitted, then the motion
shall be kept pending and a committee consisting of the following three
members shall be constituted for making investigation into the grounds on
which the removal of a Judge is prayed. This Committee shall consist of the
following three members of whom:-

(a) one shall be chosen from among the Chief Justice and other Judges of
the Supreme Court;

(b) one shall be chosen from among the Chief Justices of the High Courts;
and

(c) one shall be a person who is, in the opinion of the Speaker or, as the
case may be, the Chairman, a distinguished jurist.

104. The Committee under sub-section (3) of Section 3 is required to frame
definite charges against the Judge on the basis of which the investigation
is proposed to be held and under sub-section (4) of Section 3, such charges
together with a statement of the grounds on which each such charge is based
shall be communicated to the Judge and he shall be given a reasonable
opportunity of presenting a written statement of defence within such time
as may be specified in this behalf by the Committee. Then under subsection
(8) of Section 3, the Committee may, after considering the written
statement of the Judge, if any, amend the charges framed under sub-section
(3) and in such a case, the Judge shall be given a reasonable opportunity
of presenting a fresh written statement of defence. Under sub-section (9)
of Section 3, the Central Government may, appoint an advocate to conduct
the case against the Judge, if required by the Speaker or the Chairman or
both as the case may be. Under Section 4 of the Act, the Committee has been
given power to regulate its own procedure in making the investigation
subject to any rules. This also provides of giving reasonable opportunity
to the Judge of cross-examining witnesses, adducing evidence and of being
heard in his defence. Sub-section (2) of Section 4 with which we are
directly concerned reads as under:-

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

Thereafter under sub-section (3) of Section 4 of the Act, the Speaker or
the Chairman, or, where the Committee has been constituted jointly by the
Speaker and the Chairman, both of them, shall cause the report to be laid
as soon as may be, respectively before the House of the People and the
Council of States. Section 5 provides for the powers of the Committee, like
a Civil Court and has been authorised to summon and enforce the attendance
of any person and examining him on oath, requiring the discovery and
production of documents, receiving evidence on oath, issuing commissions
for the examination of witnesses or documents and such other matters as may
be prescribed. Then comes Section 6 which has important bearing on the
issue raised before us and as such is reproduced as under:-

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

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

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

Section 7 provides for the power to make rules. We would now consider the
provisions of the Rules which are relevant and necessary for deciding the
controversy raised before us. Rule 5 provides for the manner in which the
charges framed against the Judge shall be served on him. Under Rule 6 when
the Judge appears, he may object in writing to the sufficiency of the
charges framed against him and if the objection is sustained by the
majority of the members of the Inquiry Committee, the Inquiry Committee may
amend the charges and give the Judge a reasonable opportunity of presenting
afresh written statement of defence. Under Rule 7, if the Judge denies that
he is guilty of the misbehaviour or if he refuses or omits, or is unable,
to plead or desires that the inquiry should be made, the Inquiry Committee
shall proceed with the inquiry. Rule 8 permits the Inquiry Committee to
proceed with the inquiry in the absence of the Judge, if the Judge does not
appear after service of notice on him. Rule 9 deals with the report of the
Inquiry Committee and this Rule being relevant and necessary for deciding
the controversy is reproduced as under:-

“9. Report of the Inquiry Committee. (1) Where the members of the Inquiry
Committee are not unanimous, the report submitted by the Inquiry Committee
under Section 4 shall be in accordance with the findings of the majority of
the members thereof.

(2) The presiding officer of the Inquiry Committee shall-

(a) cause its report to be prepared in duplicate,

(b) authenticate each copy of the report by putting his signature thereon,
and

(c) forward, within a’ period of three months from the date on which a copy
of the barges framed under sub-section (3) of Section 3 is served upon the
Judges, or, where no such service is made from the date of publication of
the notice referred to in sub-rule (3) of Rule 5, the authenticated copies
of the report to the Speaker or Chairman by whom the Committee was
constituted, or where the Committed was constituted jointly by them, or
both of them:

Provided that the Speaker or Chairman, or both of them (where the Committee
was constituted jointly by them), may, for sufficient cause, extend the
time within which the Inquiry Committee shall submit its report.

(3) A copy of the report of the Inquiry Committee, authenticated in the
manner specified in sub-rule (2), shall be laid before each House of
Parliament.

(4) Where the majority of the members of the Inquiry Committee makes a
finding to the effect that the Judge is guilty of a misbehaviour or that he
suffers from an incapacity, but the third member thereof makes a finding to
the contrary, the presiding officer of the Inquiry Committee shall
authenticate, in the manner specified in sub-rule (2), the finding made by
such third member, in duplicate and shall forward the same along with the
report submitted by him under Section 4.

(5) An authenticated copy of the finding made by third member, referred to
in sub-rule (4) shall also be laid before each House of Parliament.

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

Rule 10 provides for recording of evidence according to the provisions of
the Code of Civil Procedure so far as may be applicable to the examination
of any witness by the Committee. A copy of the evidence, oral and
documentary, received by the Committee shall be laid before each House of
Parliament along with the report laid before it under Section 4 of the Act.
Sub-rule (1) of Rule 11 provides for allowing the Judge a right to consult,
and to be defended by, a legal practitioner of his choice. Apart from the
provisions of the Act and the Rules, it has been provided in clause 4 of
Article 124 of the Constitution that a Judge of the Supreme Court shall not
be removed from his office except by an order of the President passed after
an address by each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two-thirds of
the members of that House present and voting has been presented to the
President in the same session for such removal on the grounds of proved
misbehaviour.

105. In pursuance to the above provisions 108 members of the House of the
People had given a notice of motion which was admitted by the Speaker on
12-3-1991 and a Committee was constituted of the following three persons
(1) Hon’ble Mr. Justice P.B. Sawant, a sitting Judge of this Court (2)
Hon’ble Mr. Justice P.D. Desai, Chief Justice of Bombay High Court and (3)
Hon’ble Mr. Justice O. Chinnappa Reddy, a retired Judge of this Court in
the category of a distinguished jurist. The Lok Sabha was dissolved on
13-3-1991. The Union Government after the fresh elections of the Lok Sabha
refused to act in aid of the decision taken by the Speaker of the earlier
Lok Sabha and as such a Writ Petition was filed by a body called the Sub-
Committee on Judicial Accountability. That case was decided on October 29,
1991 and the majority opinion in that case was that the process for removal
of a Judge of the Supreme Court comprises of two stages. The first stage is
of investigation and proof in accordance with The Judges (Inquiry) Act,
1968 enacted under Article 124 (5) of the Constitution by the Committee
constituted by the Speaker acting as a statutory authority under the Act
and the second stage commences after allegations of misbehaviour are found
proved. In the second stage when motion is moved, bar under Article 121 on
discussion in Parliament in respect of the conduct of the Judge is lifted
and the process envisaged under Article 124 (4) is attracted. The first
stage is subject to judicial review, but the second stage is not subject to
judicial review as the process involved being parliamentary process.

106. The Inquiry report in the present case has been stated to be completed
and awaits the decision of this Court in the present case. A perusal of the
provisions of the Act and the Rules mentioned above shows that the process
as a whole is an amalgam of statutory process as well as parliamentary
process. There are number of checks and safeguards kept in the process
where the matter relates to the misbehaviour of a sitting Judge of the
Supreme Court and the High Courts who are high constitutional
functionaries. The Parliament while enacting the Judges (Inquiry) Act, 1968
long after 18 years of the coming into force of the Constitution was fully
conscious regarding the consideration of any allegation of misbehaviour
imputed against a Judge of the Supreme Court or of a High Court. It may be
noted that Article 121 of the Constitution was a clear bar for any
discussion in Parliament with respect to the conduct of any Judge of the
Supreme Court or of the High Court in the discharge of his duties except
upon a motion for presenting an address to the President praying for the
removal of the Judge. The framers of the Constitution under clause 5 of
Article 124 of the Constitution gave an authority to the Parliament to make
any law for regulating the procedure for the presentation of an address and
for the investigation and proof of the misbehaviour or incapacity of a
Judge under clause (4). The framers of the Constitution themselves laid
down in clause (4) of Article 124 of the Constitution that a Judge of the
Supreme Court shall not be removed from his office except by an order of
the President passed after an address by each House of Parliament supported
by a majority of total membership of that House and also by a majority of
not less than two-thirds of the members of that House present and voting.
In case of the consideration of a motion for the removal of the Judge on
the ground of proved misbehaviour, the above provision shows that the
framers of the Constitution themselves keeping in view the independence of
the judiciary and the Judges of the High Courts and Supreme Court. provided
that in case of any charges of misbehaviour the Judge shall not be removed
from his office except by an order of the President passed after such
motion is supported by not only a majority of the total membership of the
House, but also by a majority of not less than two-thirds of the members of
that House present and voting and to be presented to the President in the
same session. The Parliament while enacting the Judges (Inquiry) Act, 1968
in respect of constituting a Committee for the investigation and proof of
any allegations of misbehaviour provided for constitution of a Committee
consisting of only persons belonging to the judiciary. Not only that, the
members of the Committee consisted of – one to be chosen from among the
Chief Justice of India and other Judges of the Supreme Court, second one to
be chosen from among the Chief Justices of the High Courts and the third
one a distinguished jurist. The matter of investigation as such was
entrusted to a high judicial authority consisting of a sitting Judge of the
Supreme Court, a Chief Justice of the High Court and a distinguished
jurist. This shows that the intention of the Parliament was to maintain the
dignity and independence of the judiciary and as such the investigation in
respect of the misbehaviour of a sitting Judge of the Supreme Court or the
High Court was entrusted to a wholly judicial body consisting of judicially
trained persons and no interference of any kind has been allowed or given
to any executive authority or to any person outside the judiciary. Not only
that, a combined reading of all the relevant provisions of the
Constitution, the Act and the Rules clearly show that where an Inquiry
Committee unanimously or by majority records a finding of not guilty of the
charges levelled against the Judge, the matter ends and no further
discussion on the motion is required in the Parliament. It is further
important to note that sub-rule (6) of Rule 9 further provides that where
the majority of the members of the Inquiry Committee makes -a finding to
the effect that the Judge is not guilty of any misbehaviour and the third
member thereof makes a finding to the contrary, the Inquiry Committee shall
not disclose the finding made by such third member to Parliament or to any
other authority, body or person. This provision clearly indicates the
respect, dignity and maintenance of the independence of the judiciary and
not to disclose to any authority, body or person including the Parliament,
the contrary finding of guilty made by the third member and thus to
maintain the prestige of the Judge concerned intact. The Parliament under
the above scheme is entitled to take up the motion, for consideration only
when it receives a report with the finding of guilty recorded by a majority
or unanimous opinion of the members of the Committee. It may be further
noted that in such kind of case where out of the three members of the
Committee, if two members record a finding of guilty while the third member
gives a finding of not guilty, then in that case, both the findings are
required to be submitted on the floor of the House so that at the time of
consideration of the motion both views may be available for consideration
before taking any final decision on the motion.

107. In the background of the above scheme of the law we have to consider
whether this Court can give any direction for the supply of the report of
the Committee to the concerned Judge for the purpose of giving sufficient
time so that the Judge may decide to take further action or not by may of
challenging the report by judicial review. Both the reliefs as prayed are
intermixed and according to the petitioner and rightly so one without the
other is of no use. Admittedly, there is no provision in the Act or the
Rules for the supply of such copy to the concerned Judge by the Inquiry
Committee before sending such report to the Speaker for laying down the
report before the Parliament.

108. The argument of Mr. Sibal, Learned Senior Counsel appearing on behalf
of the petitioner is that this Court in the case sub-committee on Judicial
Accountability has held that the admission of motion by the Speaker and
constitution of the Committee are statutory functions of the Speaker
outside Parliamentary process. Till the report is received by the
Parliament and the motion is taken for consideration the matter is outside
the Parliamentary process and any action till such stage being outside
Parliamentary process is amenable to judicial review. It has been submitted
that the learned Judge is entitled to question the adverse findings of
misbehaviour, if any, recorded by the Committee and this can be done only
when the copy of the report is given to the learned Judge and thereafter
reasonable time is given for availing the right of challenging the same by
judicial review. It has also been contended that there is no provision in
the Act and the Rules for the Speaker to supply a copy of the report to the
learned Judge. Once a report is placed on the floor of each House of
Parliament, it is exclusively within the domain of the Parliament and it
cannot be predicated as to what procedure the Parliament may adopt
regarding the consideration of the motion. This valuable right cannot be
taken away nor rendered nugatory by interpretative process which would
violate the principles of nature justice.

109. Mr. G. Ramaswamy, Learned Attorney General contended that the
Cornmittee is in the nature of a subordinate.authority to the Speaker. The
report is like granting of sanction for prosecution of a public servant as
contemplated under Section 197 of the Code of Criminal Procedure, 1973.
Unless the validity of the sanction is questioned at the earliest stage the
accused is precluded to assail it at a later stage. On the same analogy the
learned Judge is entitled to challenge the adverse findings, if any,
recorded in the report by the Committee before the same is taken for
consideration by the Parliament. This can only be done when such report is
made available to the learned Judge for seeking a judicial review. It is
not for this Hon’ble Court to decide as to what procedure Parliament will
follow for the purpose of voting upon the motion nor can this Court, in any
way, interfere with the Parliamentary process. It is for the Parliament
alone to decide as to how the motion shall be dealt with and in case a copy
of the Inquiry report is not furnished to the learned Judge at this stage
for seeking judicial review, it would be against the basic principle of
natural justice not to condemn a person unheard.

110. So far as the propositions of law laid down in Sub-Committee on
Judicial Accountability’s case is concerned, I do not consider it necessary
to burden this judgment as it has been considered in great detail in the
judgment by Verma, J. Suffice to say that in the aforesaid case the
controversy raised in the present case was not in issue and the Court in
that case was concerned with the stage of entertaining the motion by the
Speaker for consideration of the House and the fate of such motion upon the
dissolution of the Lok Sabha.

111. We shall now deal with the question directly raised in the present
case whether this Court should give a direction to the President of the
Committee to furnish the copy of the report to the learned Judge before
sending the same to the Speaker and to make a further direction to withhold
the submission of the report for a reasonable period so that the learned
Judge may get time to avail or not to avail the remedy of challenging the
adverse findings in the report by way of judicial review. In order to
decide this. question it is necessary to consider as to under what
principle of law or authority such relief is sought. Admittedly, there is
no provision in the Act or Rules for giving the copy of the Inquiry report
to the concerned Judge before sending it to the Speaker. This position is
even accepted by the learned Counsel appearing for the petitioner. If we
examine the provisions of the Act and the Rules a contrary conclusion
emerges to what is prayed by the petitioner. Section 4 (2) of the Act
clearly envisages that at the conclusion of the investigation, the
Committee shall submit its report to the Speaker and under sub-section (3)
the Speaker shall cause the report to be laid, as soon as may be before the
House of the People in the present case. Further under Rule 9(2) (c), it is
provided that the Presiding Officer of the Inquiry Committee shall forward
the report within a period of three months from the date on which a copy of
the charges framed under sub-section (3) of Section 3 is served upon the
Judge, or where no such service is made from the date of publication of the
notice referred to in sub-rule (3) of Rule 5. Under the proviso, the
Speaker is authorised to extend the time for sufficient cause. Thus, the
intendment of the aforesaid scheme of the provisions is a speedy disposal
of the investigation in public interest and the report is required to be
sent to the Speaker as soon as the investigation is concluded, unless the
case falls within the ambit of Rule 9(6) in that case the Inquiry Committee
shall not disclose the finding made by such third member to Parliament or
to any other authority, body or person.

112. Now the other aspect to be examined is the violation of any principle
of natural justice, if the copy of the report is not given to the Judge
concerned for seeking a judicial review and this is the main plank of
submission on which the entire edifice is built on behalf of the
petitioner. So far as, the principle of audi alteram partem that no person
can be condemned unheard, is concerned, in my view is not applicable in the
present case. The right of hearing to the concerned Judge in the present
scheme of law can only arise before two authorities. One before the Inquiry
Committee and the other before the Parliament. So far as the right of
hearing before the Committee is concerned, there is ample opportunity given
in the provisions of the Act and the Rules. The entire investigation into
misbehaviour is done after a notice given to the concerned Judge. The
charges framed together with a statement of the grounds on which each such
charge is based is communicated to the Judge and he is given a reasonable
opportunity of presenting a written statement of defence. The Committee
after considering the written statement of the Judge may amend the charges
and thereafter the Judge is again given a reasonable opportunity of
presenting a fresh written statement of defence. The Committee in making
the investigation is required to give a reasonable opportunity to the Judge
of cross-examining witnesses, adducing evidence and of being heard in his
defence. The plea of the Judge is recorded, the evidence of each witness
examined by the Inquiry Committee is taken down in writing. The Judge is
also given a right to consult, and to be defended by a legal practitioner
of his choice. Thus, so far as the opportunity of hearing before the
Inquiry Committee is concerned, the above mentioned provisions clearly show
that full opportunity of hearing is given to the Judge in respect of
contesting the charges framed against him as well as cross-examining any
witness and leading any evidence in defence.

112A. Now, so far as the opportunity of any hearing to be given to the
concerned Judge by the Parliament, that stage has not reached in the
present case. It is no doubt correct that Parliament is free to adopt its
own procedure while considering the motion, but that alone cannot be
considered as a ground for seeking a judicial review against the report of
the Committee. The question of not giving any opportunity of hearing before
any action is taken against the learned Judge by the Parliament can only
arise after any decision is taken against the Judge by the Parliament. The
violation of principle of natural justice, if any, cannot be examined in
isolation, but depends on the facts and circumstances of each case. No
argument based on the violation of principle of natural justice can be
considered on the assumption that the Parliament may adopt a procedure
which may be in violation of principles of natural justice. Learned
Attorney General at a subsequent stage of the arguments as well as the
Counsel for the Committee were in agreement on this score that the
Parliament shall give an opportunity of hearing to the learned Judge before
taking a final decision on the motion and as a necessary corollary thereof
the copy of the Inquiry report shall be given to the learned Judge by the
Parliament. Thus, if a direction is being sought for supplying a copy of
the report on the ground of assumed violation of any principle of natural
justice by the Parliament, we find no justification and it would be
prejudging the issue and predicating a remedy without laying any foundation
or basis for such relief.

113. It may also be noted that the Rules of natural justice are manifested
in the twin principles of nemo judes in sua caues and audi alteram partem.
We are not concerned here with the former since no case of bias has been
urged. The grievance ventilated is that being condemned unheard. The audi
alteram partem rule has a few facets two of which are (a) notice of the
case to be met; and (b) opportunity to explain. There is no violation in
the present case of anyone of the above two facets of the audi alteram
partem rule. The violation of principle of natural justice will depend on
the facts and circumstances of each case and in my view there is nothing to
show that in the present case there is any violation of the principles of
natural justice.

114. The next limb of this ground of violation of principles of natural
justice claimed on behalf of the petitioner is that if the copy of the
report will not be given to the learned Judge, then it would defeat his
right of judicial review. I do not find any force in this submission. The
right of judicial review is not a right emerging under any principle of
natural justice. It cannot be equated with the rule of audi alteram partem.
The rule of judicial review is itself a right available only on limited
permissible grounds. The remedy of seeking a judicial review depends on the
facts of each individual case and will depend on several factors which
would be necessary to be examined before the particular order or action is
put under challenge. There cannot be any demand of judicial review as an
abstract proposition of law on the premise of violation of any principle of
natural justice at this stage in the scheme of the Act and the Rules. No
direction as such can be sought on the basis that if the copy of the report
is not supplied at this stage, the learned Judge would be left with no
remedy of judicial review at a later stage. Neither in the scheme of the
Act and the Rules nor under any provision of the Constitution it has been
shown that such right is available to the concerned Judge. There is neither
any violation of any principle of natural justice nor violation of any
constitutional or statutory provision in not affording a copy of the
Inquiry report before sending the same to the Speaker. This Court cannot
give any mandamus to any authority unless it can be shown that such
authority is acting in violation of any provisions of the statute or
constitutional obligation. Thus, even if it may be considered that the
Committee is performing a statutory function amenable to the jurisdiction
of this Court in judicial review, it must be shown that it is acting in
violation of any rule or law. In the present case the Inquiry Committee is
rather performing its legal duty and fulfilling the statutory obligation of
sending the report to the Speaker and as such no mandamus or direction can
be given to delay or put any hindrance in such lawful action on the part of
the Committee.

115. I am not convinced with the submission of the learned Attorney General
that the Inquiry report in this case can be compared or equated with the
sanction given under Section 197 of the Code of Criminal Procedure in
respect of a public servant. The powers, duties and functions of the
Inquiry Committee constituted under the, provisions of the Act and composed
of high judicial functionaries which records its finding after giving an
opportunity to the concerned Judge on the basis of the oral and documentary
evidence cannot be compared or equated with the sanction accorded by an
executive authority in respect of a public servant.

116. We shall also examine other aspects of the matter having a direct
bearing on the question in issue. So far as any finding of guilty recorded
by the Committee on the charges is concerned, it is not conclusive and
final and the Parliament can still hold that the charges levelled against
the concerned Judge did not amount to misbehaviour and may decide not to
adopt the motion. On the other hand, if in the course of judicial review
this Court approves or affirms such findings recorded by the Inquiry
Committee being a decision of this Court shall be binding on the
Parliament. In that case, it would not be possible for the Parliament to
take a different view and this would be an extra constitutional
interference in the framework of the scheme. In another case during the
course of judicial review this Court may come to the conclusion of quashing
the entire proceedings conducted by the Inquiry Committee and require it to
hold a fresh Inquiry. In that kind of case a problem may arise of the
continuation of the investigation beyond the period allowed in the Rules
and by the Speaker. It is important to note that the life and existence of
the Inquiry Committee itself is conterminous with the period of 3 months as
laid down in rule 9(2)(c) of the Rules or till the Speaker extends the time
for sufficient cause under the proviso to the aforesaid rule. After this
period is over, the Committee ceases to function and neither this court nor
any other court can extend this period in the exercise of judicial review
of the findings of the Inquiry Committee. The period of 3 months has been
fixed in the statutory rules itself and the Speaker alone has been
authorised to extend such period for sufficient cause. In my humble opinion
this court cannot extend such period nor give any direction to the Speaker
to do so, and any attempt of remanding the matter for fresh Inquiry or to
keep the matter pending till the concerned Judge decides to challenge the
report by way of judicial review or to keep the matter pending for decision
under the exercise of judicial review beyond the aforesaid period is not
permissible and cannot be done in an indirect manner which cannot be done
directly. This Court has no power to extend the life of the Inquiry
Committee by a judicial fiat in the teeth of the express provisions of the
statutory rules.

117. Further, in case a judicial review is permitted at this stage against
the findings recorded by the Committee then in that case even findings of
not guilty recorded by the Committee may also be challenged in Court by
persons who had initiated the motion. It has been contended in this regard
on behalf of the learned Counsel for the petitioner that no question of any
challenge to the findings of not guilty recorded by the Committee is
permissible as contemplated under Section 6(1) of the Act according to
which if the report of the Committee contains a finding that the Judge is
not guilty of any misbehaviour then no further steps shall be taken in
either House Parliament in relation to the report. 1 find no force in such
contention because this will only apply when such finding of not guilty is
affirmed by the Court in judicial review also. -But in case such finding
itself is reversed in judicial review, then the finding of not guilty by
the Committee no longer exists and it would be taken as a finding of guilty
recorded in judicial review. Thus, many problems may arise which cannot be
predicated and which may result against the interest of the concerned Judge
himself.

118. Thus, in the circumstances mentioned above in the scheme of the Act
and the Rules and the Constitution, no direction can be given to the
Inquiry Committee to furnish the report to the Judge for seeking judicial
review at this stage when the investigation is already complete. So far as
the stage after the conclusion of the proceedings in the Parliament are
concerned, the remedy of judicial review is always available which, of
course, will depend on the facts and circumstances of the case emerging
then and subject to recognised permissible grounds of judicial review.

118A. The entire constitutional scheme in this matter shows that the
Parliament had complete confidence in the independence and dignity of
judiciary. The Inquiry has been left to the Inquiry Committee composed of
high judicial functionaries alone. In case of such Committee giving a
finding of not guilty, the same has been considered as final and giving a
quietus and no further discussion on the motion has been made permissible.
It is only in, case of finding of guilty recorded by the Inquiry Committee
that the motion is required to be taken up for further consideration. In
this kind of case in the larger public interest including the independence
of the-judiciary itself any delay after the recording of such finding of
guilty, if any, by the.Inquiry Committee and to permit such report being
challenged by way of judicial review at this stage would not be proper. The
matter after recording, if any, a finding of guilty against the concerned
Judge by the Inquiry Committee should be left for further consideration by
the Parliament. The Parliament should be left answerable to the public at
large for its future course of action in the matter.

119. Thus, taking in view the entire. facts and circumstances of the case,
no direction can be given as prayed by the petitioner and the petition
stands disposed of in terms of the direction given in the judgment of
brother Verma, J.

K. RAMASWAMY, J. (Minority View): -120. Having had the benefit of reading
the draft judgment circulated by my learned brother Verma, J. and given my
anxious consideration, 1 express my regrets not to sail totally with them
but prefer to sink alone.

121. The petitioner sought a writ of Mandamus or any other writ or
directions to direct Mr. Justice P. B. Sawant Committee, appointed under S.
3(2) of the Judges (Enquiry) Act, 1968 for short ‘the Act’, to supply a
copy of its report to Hon’ble Mr. Justice V. Ramaswami before its
submission to the Speaker of the Lok Sabha. She also sought direction to
the said committee to withhold forwarding simultaneously the said report to
the Speaker. The facts in nut shell are that the Speaker of 9th Lok Sabha
constituted Mr. Justice P. B. Sawant Committee to enquire into the grounds
of the motion prayed for the removal of Mr. Justice V. Ramaswami from the
office as Judge of this Court with the allegations that he committed, in
his administrative capacity as Chief Justice of Punjab & Haryana High
Court, financial irregularities which constitute misbehaviour within the
meaning of Art. 124(4) of the Constitution of India. Mr. M. Krishna Swami
filed Writ Petition No. 149 of 1992 and questioned the power and
jurisdiction of the Speaker to admit the motion, the constitution of the
committee and the procedure it adapted to investigate into the charges etc.
The committee on assumption of its office while started investigation, the
stay of the proceedings, though sought for, was not granted and the
investigation went on. While we were hearing the writ petition, on May 10,
1992, the learned Judge addressed a letter to the Presiding Officer of the
Committee requesting to supply him a copy of its report before being
forwarded to the Speaker and also requested to withhold the same by giving
reasonable time to peruse and to take appropriate action thereon. An
application for the same relief was also made in Writ Petition No. 149 of
1992. This Bench was given to understand that the Committee would submit
the report to the Hon’ble Speaker on or before July 31, 1992, the extended
date. During summer vacation the petitioner filed the writ petition for the
aforesaid reliefs which was posted along with writ petition No. 149 of
1992. On enquiry by this Bench whether the learned Judge would agree to
abide by the decision that may be given in this case, Mr. Kapil Sibal, the
learned senior counsel for the petitioner, on instruction, stated to the
positive. He placed on record the letter he addressed and the endorsement
thereon by the learned Judge.

122. He argued that in Sub-Committee on Judicial Accountability v. Union of
India, (1991) 2 SCR 741 for short ‘SCJA’ case, this Court held that the
admission of the motion by the Speaker and constitution of the committee
are statutory functions of the Speaker outside Parliamentary process. Till
the report was placed on the floor of each House of the Parliament, the
Speaker has possession of the report and power to withhold. So the
Committee too. If it finds on investigation that the misconduct has not
been proved, there ends the matter and need to take further political
process is obviated. If it finds that the misconduct has been proved, the
Parliamentary process to remove the Judge gets revived on placing the
report and the evidence on the floor of each House of Parliament and the
address started. The investigation is judicious blend of political and
judicial process. The admission of the motion, constitution of the
committee and submission of the report by the committee to the Speaker are
outside Parliamentary processes and amenable to judicial review. The
learned Judge is entitled to question the adverse finding of misbehaviour
and so is entitled to the supply of a copy of the report before it being
actually submitted to the Speaker. When the learned Judge has a right and
is entitled to judicial review, to question the correctness of the finding
of proved misbehaviour he has right to move this Court under Art. 32 or
Art. 136 or to the High Court under Art. 226. Without supply of the copy of
the report he cannot adequately plead and prove its incorrectness to quash
the same. Accordingly it is his contention that the supply of the report
and grant of reasonable time are essential postulates sequal to avail
judicial review. Accordingly the learned Judge is entitled to the copy of
the report thereof. In support thereof he stated that the Parliamentary
process commences only when the Speaker moves the motion as annexure in the
house along with the address to be presented to the President for the
removal of the Judge. Until then the Speaker remains a statutory authority,
there is no express provision either in the Act or the judges Enquiry
Rules, 1969 for short ‘the Rules’ or in the Constitution to provide the
learned Judge with an opportunity of representation aid hearing on the
floor of both the Houses of Parliament. We cannot predicate as to what
procedure the Parliament may adapt in its address and it is also immune
from judicial review. By necessary implication, the learned Judge when he
has right to review must have remedy to challenge the adverse report in a
judicial process and supply of the copy of the report is a must. There is
also no provision in the Act and Rules for the Speaker to supply a copy of
the report to the learned Judge. Once a report is placed on the floor of
each House of the Parliament it is exclusively within the domain of the
Parliament and the Judge loses his right to Judicial review. The Parliament
may choose to give a copy of the report or constitute a sub-committee to
analyse the report or may proceed with the address without any opportunity
to the learned Judge. As a corollary to the judgment of this Court in
SCJA’s case, the report of the committee with its finding must be furnished
to the learned Judge without which there can never be any efficacious
judicial review. This valuable right cannot be taken away nor rendered
nugatory by interpretative process which would violate the principles of
natural justice and unfair procedure offending Article 21. The Committee is
a statutory Tribunal, even though per force its report is not operative. As
a Tribunal it is enjoined to supply him a copy of its report and if it
fails to supply, the learned Judge is entitled to maintain the writ
petition compelling the committee to supply the copy of the report.

123. Sri G. Ramaswami, the learned Attorney General contended that the
committee is in the nature of a subordinate authority to the Speaker, the
latter being a statutory authority. The report is like grant of sanction
for prosecution of a public servant under Section 197 of the Code of
Criminal Procedure, 1973. Unless validity of the sanction is questioned at
the earliest stage the accused is precluded to assail it later on. On the
same analogy the Judge is entitled to challenge adverse findings, the
foundation for address in the Parliament, at the earliest stage even before
being considered by the Parliament. This Court in SCJA’s case found that
the judicial review is available against the adverse report of the
committee. The Parliamentary process of removal is not amenable to judicial
review. Therefore, before any motion is laid on the floor of each House of
Parliament, the learned Judge is entitled to the supply of a copy of the
report and to the judicial review thereof. Thereafter, this Court has no
jurisdiction to interdict the proceeding before both the Houses of
Parliament take up the motion for discussion. Interference later on would
tantamount to interfere with the Parliamentary process. The Parliament
alone is to decide as to how the motion is to be dealt with. Neither this
Court nor any other Court in this country has any jurisdiction to deal with
the matter or interfere with its decisions. Under these circumstances the
learned Judge is entitled to a copy of the report and a right to judicial
review of the same by this Court. Any construction otherwise would leave
the learned Judge high and dry. Such a situation is anathema to rule of law
and the cause of justice. Exercise of the power of judicial review would be
consistent with the interpretation of the provision of the Constitution,
the Act and the Rules as laid by this Court in SCJA’s case. Any other view
would run counter to the conclusions in SCJA’s case. He also contended that
it is a basic principle of natural justice that the person against whom
findings are rendered is entitled to be heard and seek judicial review of
the adverse findings. As a corollary he is entitled to be supplied with the
copy of the report and later the members of the Committee are not amenable
to writ jurisdiction.

124. Sri Nariman, the learned Senior counsel for the committee contended
that the report submitted by the committee germinates certain statutory
consequences directly relatable to the political process of removal of the
Judge, be the finding is one of guilt or exoneration. The report forms a
Parliamentary document for its consideration an ‘ d determines the future
course of the pending motion. If the finding is one of guilt the motion has
to proceed to the stage of consideration and vote. If the finding is of
“not guilty” the motion by force of statute is terminated without further
consideration or discussion by the Parliament. By operation of Sections
4(2) and 4(3) of the Act the committee is enjoined to submit its report to
the Speaker who is obligated to place it on the floor of both the houses of
Parliament under Section 4(3). If the contention that the findings in the
report are subject to judicial review, the consequence would be that the
finding of “not guilty” is also equally liable to be questioned by any
member of the Parliament that moved the motion. Until the report is upheld
or quashed the Speaker would take no further steps in both Houses of the
Parliament. By necessary implication it excludes consideration by the
Parliament. In other words judicial review would tantamount to stultify the
political process in the highest forum under the Constitution. On placing
the report on the floor of each House of Parliament the motion would be
subject to discussion, and resolution by majority in terms of Art. 124 (4)
which by necessary implication excludes judicial review of the said finding
and of the political process in the Parliament. The learned Judge is not
without remedy. Judicial review need not necessarily be by a Court of law.
Article 124 (4) empowers the Parliament to review the report submitted by
the Committee in terms of the law made under Art. 124 (5). The learned
Judge is entitled to be heard in the Parliament when the report is taken up
for consideration. In support thereof he placed reliance on the instance of
Mr. Justice Angelo Vasta of the Supreme Court of Queensland, Australia,
wherein Justice Vasta was given a notice and he was heard on the floor of
the House before the Parliament discussed his conduct and recommended to
the Governor for his removal.

125. It is next contended that the ratio in SCJA’s case was only to oversee
“the process and progress” of the Committee’s proceedings before it sends
its report. The function of the Committee ends with its submitting the
report to the Speaker finding with proved guilt or non-guilt. By
implication thereafter the report is not subject to judicial review. The
judicial review after the order of removal passed by the President, in
terms of Article 124(4), does not appear to be immuned from judicial
review, be it by a civil suit under S. 9 of the Code of Civil Procedure,
1908 which did not expressly or by necessary implication barred it or in a
proceeding under Art. 32 or Art. 226 of the Constitution. It is settled law
by this Court that it is not bound by the technicalities of prerogative
writs. Exercise of power under Art. 226 or Art. 32 of the Constitution is
elastic to mete out justice. The nature of the remedy may be different, may
not be reinstatement but may be damages. It is his further contention that
expedition in disposal of the motion admitted by the Speaker is the
animation from a reading of the relevant provisions prescribing 3 months
time to send the report to the Speaker. Interference in that judicial
review in the mid-stream is not called for. He also contends that being a
document of the. Parliament, the logical consequences would be to permit
the highest forum namely the Parliament to discuss the proved misbehaviour
of the learned Judge and to allow the Parliament to take its decision per
majority in terms of Article 124(4) of the Constitution. The judicial
review by necessary implication must be eschewed at this stage by proper
and true interpretations of Article 124(4) and Article 124(5), the Act and
the Rules, According to the learned counsel it is not sensitivity of the
learned Judge, but larger public interest of the confidence in the
independence of judiciary is paramount. Nonreview of the report till the
order of removal by the President is passed, would protect and subserve
public interest. It would also avoid protraction and proliferation of
insidious effects on the efficacy of judicial review in the interregnum.

126. In support of his contention that the judicial review removal under
Art. 124(4) is impermissible, he placed reliance on the decision in Tun
Dato Haji Mohanad Sallah Bin Abus v. Tam Sri Dato, 1983 LRC 25, of the
Supreme Court of Malasiya, wherein the Court held that a mandamus cannot be
issued restraining the Tribunal to investigate into the misbehaviour of the
Judge and to submit the report thereon since it is a constitutional
function which in effect amounts to restraining His Majesty from receiving
the report.

127. Regarding justiciability of the order of removal at the end stage he
placed reliance on Powell v. McComack, (1969) 23 L Ed 2d 491, whereunder
removal of Powell from the House by the. Senate was reviewed by the Supreme
Court and held that the impeachment power was subject to judicial review.
He also placed reliance on the Commentary thereon by Raul Berge on
Impeachment, Black on Impeachment of Prof. S. A. DeSmith’s Article in 16
Modern Law Review 502; 1974 American Bar Association Journal 681; and Prof.
Lawrence Tribe of Harward University, American Constitutional Law, 1988,
2nd Edn. Texas Law Review, Vol. 68 (1989) p. 97 Judicial Review of
Impeachment by Michael Gerhadt and Emanucts Constitutional Law 1991-92. He
drew analogies from the provisions of the Constitution itself. The
impeachment of the President under Art. 61; removal of the Vice-President
under Art. 67(b), the Dy. Chairman of the Rajya Sabha under Art. 70(c),
removal of the Speaker and Dy. Speaker of Lok Sabha under Art. 94(c) are
not subject to judicial review, as they being purely of political process
while for removal of a Judge, Arts. 124(4) and 124(5) are an amalgam of
political and judicial process. The removal of the Chairman or Member of
the Public Service Commission on a report by the Supreme Court under Art.
317 is not subject to judicial review under Art. 32, since the report is of
the Supreme Court and not of a Committee of Judges.

128. The learned Attorney General and Sri Sibal are unanimous in their
reply that the political process of removal of a Judge after the resolution
per majority, in tune with Art. 124 (4) of the Constitution, is not subject
to judicial review as the Parliament exercises judicial power but not
legislative power. Its power of recording judicial finding whether or not
guilty was entrusted to the Committee and it is its judgment. It cannot be
prognosticated as to what procedure the Parliament would follow to
discussing the misbehaviour of the learned Judge. Therefore, the judicial
review would trench into conflict of jurisdiction of two constitutional
wings of the State and the Court would exercise self restraint to disturb
the finality of constitutional process of removing a Judge. This Court in
SCJA’s case held that the judicial review would be available to the Judge
only before it is being placed on the floor of the House as a concomitant.
But they relented to the position that judicial review would be available,
if the removal is not passed like by a majority of 2/3rd members of the
Parliament present and voting or discussion and voting was not in the same
session or that even the proved facts and based thereon the finding of
guilt as accepted by the Parliament per se is not a misconduct in the eye
of law, etc. Sri Sibal distinguished Powel’s case on the ground that it was
a disqualification to sit as a member of the House and not impeachment for
misconduct and purely political process. He relied on Halsted L. Ritter v.
U. S., 84 C Cls. 293, referred to by Sri Nariman and certiorari was denied
in Ritter v. U.S., (1936) 300 US 663. This Court in SCJA’s case expressly
held that from the stage of admitting the motion till submission of the
report being statutory the Tribunal’s findings are reviewable by this Court
under Art. 32 or 136 of the Constitution or Art. 226 in the High Court. The
adverse report, if found, would give cause of action to file writ petition.
It is open to the learned Judge to show to the Court the illegalities
committed by the Committee and at the threshold they be corrected and the
judicial review after removal is not efficacious. The availability of the
remedy after removal does not preclude the Court to correct illegalities or
errors at the earliest.

129. Though the contentions are carved on wide canvass, I prefer to focus
the problem within narrow confines. Whether, judicial review of a finding
of guilt recorded by the committee for removal of the Judge following the
resolution passed by both the House of Parliament on an address with
requisite majority, amenable to judicial review and if so on what grounds,
at what stage and to what extent, would not arise on the present facts. The
controversy thereof traverses wider dimensions pregnant with far reaching
ramifications. The need to traverse the entire gamut is obviated for the
reason that it is premature to go into the question at this stage and
secondly when it trenches into conflict of jurisdictions of this court and
of the Parliament, it would be better to avoid an opinion at an inopportune
stage. The Parliament while making the Act in the language of this court in
SCJA’s case adopted ‘judicious blend” or an “admixture and amalgam” of
political and judicial process as held in Krishna Swami’s case, to remove a
Judge of the Constitutional court. The initiation of the process to remove
a Judge was entrusted to the requisite members of either Rajya Sabha or Lok
Sabha with stated grounds in the motion. The power was entrusted to the
Speaker to admit or to refuse its admission and on its admission the duty
to constitute a High Judicial Committee composed of a sitting Judge of the
Supreme Court, one of the Chief Justices of the High Courts and a
distinguished Jurist. In SCJA’s case this court held that all the Actions
of the Speaker under the Act are statutory one, outside the parliamentary
proceedings and are subject to judicial review.

130. In my respectful view, the only question on the facts relevant for
decision In this case is, whether the learned Judge is entitled to the
supply of a copy of the report of the Committee to be submitted to Hon’ble
the Speaker of Lok Sabha. If the contention of Sri Nariman is accepted that
the moment the report was signed by the Committee it forms a Parliamentary
document is accepted, the logical result must end in an address by both the
Houses of Parliament; a resolution in that behalf passed in terms of Art.
124(4) and an order of removal would be passed by the President. Certainly,
the consequence would be that the political process comes to a terminus and
the order of removal of the Judge becomes final. Whether it is reviewable
by judicial process is yet another question. As soon as the report is
signed by the Committee, as reported to have already been signed by the
Committee, whether would automatically form part of the Parliamentary
document is the question. Whether the finding of exoneration of the learned
Judge by the Committee is also liable to be questioned as contended for by
Sri Nariman? Let us first take the later question. To bring out that
contention pointedly to focuss, it is necessary to consider the scope of S.
6 of the Act which reads thus:

6. the of in and no or the Houses of Parliament shall not be proceeded
with.

(2) If the report of the Committee contains a finding that the Judge is
guilty of any misbehaviour or suffers from any Incapacity, then, the motion
referred to in sub-sec. (1) of S. 3 shall, together with the report of the
Committee, be taken up for consideration by the House or the Houses of
Parliament in which it is pending.

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

The Act insisted that the political process of removal of a Judge must be
flavoured by a finding of guilt of proved misbehaviour or incapacity, a
foundation for removal under Art. 124(4) by a high judicial authority as it
impinges upon the reputation and forfeiture of office by an equally high
constitutional functionary. Art. 124(5) empowers to make law of procedure
for investigation into misbehaviour or incapacity of a Judge. Section 3(2)
authorises the Speaker to constitute the Committee in terms thereof and,
therefore, he ceases to have any hold over the committee. The Committee
thus is a high judicial body consistent with the status of the Judge. The
contention of the Attorney General that the Committee is a delegate of the
Speaker is ill conceived. By operation of S. 6(1), if the report of the
Committee contains a finding that the Judge is not guilty of misbehaviour
or does not suffer from any incapacity, then no further steps should be
taken in either House of the Parliament in relation to the report and there
is legislative mandamus that the motion pending in either the House of the
Parliament shall not be proceeded with. In other words the motion stands
lapsed. The result also is envisaged in Rule 9(4). Rule 9 provides the
procedure to submit the report. Sub-rule (4) of rule 9 provides thus:

“(4) Where the majority of the members of the Inquiry Committee makes a
finding to the effect that the Judge. is guilty of a misbehaviour or that
he suffers from an incapacity, but the third member thereof makes a finding
to the contrary, the presiding officer of the Inquiry Committee shall
authenticate, in the manner specified in sub-rule (2), the finding made by
such third member,. in duplicate and shall forward the same along with the
report submitted by him under S. 4.

Sub-rule (6) of rule 9 reads thus:

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

A conjoint reading of S. 6(1), rule 9(4) read with rule 9(6) would
establish the legislative animation that where the report contains a
finding of guilt of misbehaviour or that the Judge suffers from an
incapacity, unanimously or per majority view, then the Presiding Officer
(sitting Judge of this Court) of the Inquiry Committee shall authenticate,
in the manner prescribed in sub-rule (2) the finding made by the third
member of not guilty, in duplicate, should be forwarded to the Speaker/
Chairman along with the report submitted by him under S. 4. At the
discussion by the Parliament, the favourable finding of ‘not guilty’ may be
taken into account by the Parliament or even the finding of guilt may be
open to discussion with the aid of the evidence placed on its floor and the
Parliament may or may not agree with the majority view in which case there
shall be deemed proof or disproof of misbehaviour or incapacity in the
light of majority resolution, though no express finding was recorded in
that behalf On the other hand, if the majority members make a finding that
the Judge is not guilty of any misbehaviour or he does not suffer from any
incapacity, but the third member records a finding to the contrary, the
Committee shall not disclose that finding of the third member to the
Parliament or to any other authority, body or person. In other words there
is a statutory prohibition or mandatory injunction to the committee to
disclose the minority view to the public. Thus it is clear that the finding
of “not guilty”, in other words, “exoneration” from the alleged
misbehaviour or incapacity by majority of the members was, treated to be
conclusive and should be kept secret and by necessary implication it
exclude judicial review. The reason is obvious that the finding of a high
judicial body, a final arbiter, must be respected; should receive finality
and should not be tinkered with. Equally disclosure of even the minority
view would effect not only the reputation of the Judge but also ward off
collateral attack from any quarter nor liable to be questioned by any third
party. It is held in Krishna Swami’s case that neither the members of the
Parliament, nor anybody have locus or right to participate and lead
evidence against the Judge at the investigation done by the Committee. As a
necessary corollary no one is entitled to impugn the correctness of the
findings of ‘not guilty’ recorded by the Committee, absolving the Judge
from the charge. Therefore, the legislature itself made a distinction
between the consequences that would flow from recording a finding of guilty
or exoneration and. the former is subject to political process, together
with the contra finding of third member but in the latter case it is
conclusive. As held in SCJA’s case, no further steps based thereon should
be taken up for consideration. In other words, it is immune from attack
from any quarter whatsoever, when even the Parliament itself was prohibited
to go into that question. It must thus be held that the first contention of
Sri Nariman is not tenable and accordingly it is negatived.

131. The next question is as to when the report of unanimous or per
majority finding of ‘proved misbehaviour or in capacity’ would form part of
Parliamentary document. Under sub-sec. (2) of S. 4, ‘at the conclusion of
the investigation, the Committee shall send the report to the Speaker, as
the case may be, to the Chairman or where the Committee has been
constituted jointly by the Speaker and the Chairman, to both of them
stating therein its findings on each of the charges with such of the
reasons on the whole case as it deemsfit’. Under sub-sec. (3) thereof the
Speaker or the Chairman or both when the committee was constituted jointly
by them, ‘shall cause the report to be laid, as soon as may be, before the
House of People and Council of State’. Under Rule 9(3), a copy of the
report of the Inquiry Committee, authenticated in the manner specified in
sub-rule (2), ‘shall be laid before each House of Parliament’. Under sub-
rule (6) of rule 9 when one member recorded a finding of not guilty of
misbehaviour or does not suffer from any incapacity, the said report of the
third member, as authenticated by the Presiding Officer, shall also be laid
before each House of Parliament along with the evidence as per Rule 9(5).

132. In SCJA’s case interpreting Ss. 3, 4 and 6 of the Act, the majority,
in the context of the doctrine of lapse, held that the entire stage up to
proof of misbehaviour or incapacity began with the initiation of
investigation on the allegation being made is governed by the law enacted
under Article 124(5). The stage of an address by each House of the
Parliament commences only when the alleged misbehaviour or incapacity is
proved in accordance with the law enacted under Clause 5 . The House does
not come into picture at the stage of admitting the motion, constituting
the committee and the investigation into the alleged misbehaviour or
incapacity.

133. Therefore, the Speaker on receipt of the report submitted by the
committee under S. 4(2) or, as the case may be, the Chairman or both of
them, by operation of sub-section (3) thereof should cause the report laid
before each House of Parliament. The manner of preparation of the record is
controlled and regulated by Rule 16.. It postulates that, when the
committee unanimously or per majority thereof, finds that the Judge is
guilty of any -misbehaviour or suffers from an incapacity, the Secretary of
the Lok Sabha or Rajya Sabha, as the case may be, shall prepare the address
in form II, copy of the motion shall be annexed to the address. They shall
fix the date for consideration by each House and address may be supported
by majority members in terms of Art. 124(4). Thus it is clear that the
moment the report was signed by the committee, it did not, ipso facto,
became the document of the Parliament but when the Speaker/ Chairman or
both, as the case may be, caused the report laid on the floor of each House
of Parliament together with the evidence and the motion in the manner
prescribed in Rule 16, it becomes the document of the Parliament. Until
then the Speaker/ Chairman holds the document in his statutory capacity
under the Act. The anchor of Sri Nariman lost its hook.

134. The question then is whether the committee is a tribunal? In Indo-
China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. Collector of Custom,
(1964) 6 SCR 594 the facts were that under the Customs Act on proceedings
having been taken and confiscated the goods, an appeal was laid before the
Central Board of Revenue which was rejected. A revision to the Central
Govt. also met with the same fate. When their correctness was questioned in
this court under Art. 136, a preliminary objection was raised that the
Board and the Government are not a tribunal within the meaning of Art. 136
and that, therefore, the order passed by the authorities under the Act was
not subject to judicial review. While repelling the contention the
Constitution Bench held at pages 603 and 604 thus:

“It is difficult to lay down any definite or precise test for determining
the character of a body which is called upon to adjudicate upon matters
brought before it. Sometimes in deciding such a question, courts enquire
whether the body or authority whose status or character is the subject
matter of the enquiry is clothed with the trappings of a court. Can it
compel witnesses to appear before it and administer oath to them, is it
required to follow certain rules of procedure, is it bound to comply with
the rules of natural justice, is it expected to deal with the matters
before it fairly, justly and on the merits and not be guided by subjective
considerations; in other words, is the approach which it is quasi-judicial
approach? If all or some of the important tests in that behalf are
satisfied, the proceedings can be characterised as judicial proceedings and
the test of trappings may be said to be satisfied. But apart from the test
of trappings, another test of importance is whether the body or authority
had been constituted by the State and the State had conferred on it its
inherent judicial power. If it appears that such a body or authority has
been constituted by the legislature and on it has been conferred the
State’s inherent judicial power, that would be a significant, if not a
decisive, indication that the said body or authority is a Tribunal.”

135. Accordingly it was held that the Central Board of Revenue and the
Central Govt. are Tribunals for the purpose of Art. 136. In The Bharat Bank
Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, 1950 SCR 459 when
similar objection was taken of Industrial Tribunal another Constitution
Bench held that the main function of the Industrial Tribunal is to
adjudicate on industrial disputes which implies that there must be two or
more parties before it with conflicting cases and that it has also to
arrive at a conclusion as to how the dispute is ended. Prima facie,
therefore, a Tribunal like this cannot be excluded from the scope of Art.

136. It was also further held that though the award proprio vigore is not
enforceable, its life kindles into being, on acceptance by the government
concerned and a notification was issued by the government in the manner
Prescribed by law. It by itself is not a determinative factor to keep the
award outside the purview of Art. 136 of the Constitution. In Associated
Cement Co. Ltd. v. P N. Sharma, (1965) 2 SCR 366 , the question was whether
the order passed by the government with the concurrence of the Labour
Commissioner under the Punjab Welfare Officer Recruitment and Conditions of
Service Rules, 1952 is a Tribunal within the meaning of Art. 136. This
Court at pages 386 & 387 held thus:-

“The presence of all or some of the trappings of a court is really not
decisive. The presence of some of the trappings may assist the
determination of the question as to whether the power exercised by the
authority which possesses the said trappings is the judicial power of the
State or not. The main and the basic test, however, is whether the
adjudicating power which a particular authority is empowered to exercise
has been conferred on it by a statute and can be described as a part of the
State’s inherent power exercised in discharging its judicial function.
Applying this test, there can be no doubt that the power which the State
Govt. exercises under R. 6(5) and R. 6(6) is a part of the State’s judicial
power. It has been conferred on the State Government by a statutory Rule
and it can be exercised in respect of disputes between the management and
its Welfare Officers. There is, in that sense, a lis; there is affirmation
by one party and denial by another, and the dispute necessarily involves
the rights and obligations of the parties to it.”

The same is the ratio in Durga Shankar Mehta v. Thakur Raghuraj Singh
(1955) 1 SCR 267 and Dev Singh v. Registrar, Punjab and Haryana High
Court, (1987) 2 SCR 1005 and the latter a little digressed on facts.

136. It is, therefore, settled law that all the trappings of the court need
not necessarily be present in a particular case to bring the authority as a
Tribunal but the essential postulate must be that it must be the creature
of the statute and the State should delegate its inherent power of judicial
review to the Tribunal; all or some of the trappings of a court may or may
not be present in a given case. The Tribunal should adjudicate the dispute
between the parties before it, after giving reasonable opportunity to the
parties, consistent with the principles of fair play. and natural justice.
It is not necessary that proprio vigore it is enforceable. The mere fact
that it is subject to further orders does not take away the effect of the
decision or findings recorded thereunder.

137. The committee is not a recommendatory body. It is high judicial
authority derived its power from Art. 124(5) of the Constitution read with
S. 3(2) of the Act. On framing definite charges and service on him, it
gives reasonable time to the learned Judge to file his defence. The
Committee under Rule 8 is empowered to conduct ex parte enquiry, in the
absence of the Judge when he did not appear or had chosen to remain absent.
The Judge also has been given right under Rule 11 to consult his counsel
and the right to be defended by a legal practitioner of his choice. During
investigation the Committee was empowered by S. 5 of the Act ‘powers of a
civil court while trying the civil suit’ under Code of Civil Procedure,
1908 in respect of enumerated matters, namely, ‘to summon, and enforce the
attendance of the witnesses and their examination, power of discovery and
inspection or to direct them, production of documents, to receive evidence
on oath, to issue commission for examination of the witnesses or the
documents and such other prescribed matters’. Under S. 4(1) the Committee
shall give reasonable opportunity to the Judge and the Advocate appointed
under S. 3(9) to examine witnesses, right to examine, adjudication of
evidence in proof or disproof of the charges and right to be heard in
defence. Under Rule 10(1) the evidence should be recorded as per provision
of the Code of Civil Procedure. The right to examine and cross-examine
witnesses is a valuable right akin to a trial of dispute between two
contending parties and their right to address the Committee on the evidence
adduced is in proof or disproof of the charges to adjudge the issue in a
judicious manner. The Committee thus has been empowered to adjudicate on
the proof or disproof of the charges in accordance with the evidence
legally adduced after hearing the Judge and the Advocate. The Committee has
no other function except to adjudicate upon the dispute of “the proved
guilt or not guilty”. By operation of Rule 6 the Committee, on
consideration of the evidence and applying the standard of ‘proof beyond
reasonable doubt’, make a finding that the misbehaviour or incapacity has
been proved or disproved. The finding of guilt alone is subject to
political process. Thus the Inquiry Committee is a high judicial body or
authority.

138. The problem could be broached from a different perspective. In
substance the investigation and proof of misbehaviour or incapacity of a
Judge under Art. 124(5) read with the Act and the Rules; the address by
each House of Parliament supported by the requisite majority and removal of
a Judge by the President is akin to a disciplinary measure to resuscitate
and infuse needed judicial conduct and fervidity by assertion of the
supremacy of law that the Judge too will be subject to law. The Judge
occupies a constitutional office. Art. 124(5) devised an amalgam of
judicial and political process to remove an erring Judge or Judge suffering
from incapacity. The report submitted by the Committee to the Speaker with
the finding that the alleged misbehaviour is proved and the Judge is found
guilty of the proved misbehaviour, constitutes fresh material This Court in
Union of India v. H. C. Goel, (1964) 4 SCR 718

“The enquiry report along with the evidence recorded constitute the
material on which the government has ultimately to act. That is the only
purpose of the enquiry held by the competent officer and the report which
he makes as a result of the said enquiry”.

(Emphasis supplied)

“It is true that the order of dismissal which may be passed against a
government servant found guilty of misconduct, can be described as an
administrative order; nevertheless. the proceedings held against such a
public servant under the statutory rules to determine whether he is guilty
of the charge framed against him are in the nature of quasi-judicial
Proceedings and there can be little doubt that a writ of certiorari, for
instance, can be claimed by a public servant if he is able to satisfy the
High Court that the ultimate conclusion of the government in the said
proceedings which is the basis of his dismissal is based on no evidence.

139. In Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588 ), a bench of
three Judges held (of course it is subject to the decision by the
Constitution Bench, pending reference) that the disciplinary authority very
often influenced by the conclusion of the enquiry officer and even by the
recommendations relating to the nature of the punishment to be inflicted.
With the 42nd amendment the delinquent officer is associated with the
disciplinary enquiry not beyond the recording of evidence and submissions
made on the basis of the matter to assist the enquiry officer has to come
to his. conclusion. In case his conclusions are kept away beyond the
enquiry with or without recommendation as to punishment, the delinquent is
precluded from knowing the contents thereof although such material is used
against him by the disciplinary authority. The report is an adverse
material if the Inquiry Officer records a finding of guilt and proposes a
punishment so far as the delinquent is concerned. In a quasi-judicial
matter, if the delinquent is being deprived of knowledge of the material
against him, though the same was made available to the punishing authority
in the matter of reaching its conclusion, it is violative of the rules of
natural justice. This court further approved the ratio in Mazharul Islam
Hashmi v. State of U.P., (1979) 4 SCC 537 that the other person must know
what he has to meet and he must have an opportunity of meeting that case.
The Legislature, however, can exclude operation of these principles
expressly or impliedly but in the absence of any such exclusion, principles
of natural justice will have to be followed. The finding of guilt of
misbehaviour or incapacity, with which the Judge is suffering from, would
visit with civil consequences of loss of reputation in the society apart
from forfeiture of office. In Mohinder Singh Gill v. The Chief Election
Commr. New Delhi, (1978) 2 SCR 272 it was held that a person effected by
the civil consequences is entitled to the Report. It is now settled law
that the principles of natural justice are an integral part of
constitutional scheme of just and fair procedure envisaged under Art. 14 of
the Constitution.

140. The above discussion leads to conclude that if the committee makes a
unanimous or per majority, finding that the learned Judge is, ‘not guilty’
of misbehaviour, the finding receives quiteous and is conclusive. The
political process pursuant to pending motion should not be proceeded with
and should stand lapsed. The minority finding of ‘guilt’ should remain
secret and none be entitled to either access to the report of exoneration
or to assail the correctness of the finding of not guilty recorded by the
committee. The need to supply the report is obviated. On the other hand if
the committee either unanimously or per majority makes a finding of ‘guilt
of the proved misbehaviour’ only that part should be laid on the floor of
each House of the Parliament in terms of the Act and the Rules along with
the minority views of ‘not guilty’ and the political process for removal of
the Judge would start. That report is adverse to the learned Judge. The
constitutional scheme laid emphasis on expedition of the consideration of
the pending motion and, it should doubtless be done for, its dilation would
generate deleterious effects on public confidence in the efficacy of
administration of justice. Every right carries with it the corollary remedy
to redress the injury. Indisputably and as a fact in fairness, Sri Nariman,
also accepted that the learned Judge is entitled to judicial review. The
arena of controversy is whether, before the Parliament had taken up the
motion for consideration or after the President passed an order of removal
under Art. 124(4). As prefaced before the start of discussion that stage
would set only if and when the learned Judge has chosen to seek judicial
review. That would arise only when he has been supplied with a copy of the
report. Without knowing what the contents of the report are; the reasoning
in support of the findings of proved misbehaviour or other illegalities in
the process of adjudication, can a party be foreclosed of legal remedy? In
such a case is it not a non-issue? Without supply of the material, the
foundation of legal injury, can he adequately and effectively plead, prove
and disabuse the incorrectness of the finding. etc.? May be the learned
Judge opt to avail the remedy on the floor of the House of Parliament. Does
non-supply of the report not trench into offending the principles of
natural justice? Is it not anathema to judicial process? The secrecy of the
report of minority member’s finding of ‘guilt’ is to protect the Judge but
when the finding of guilt when adversely affects the Judge, can it be
denied on the plea of secrecy? May be the counsel may canvass any
contention on a non-issue. Is the court bound to answer all the contentions
raised? In the circumstances, I am of the humble view that the learned
Judge is entitled to the supply of a copy of the report and the committee
being a high statutory one, the court can, keeping the status of the
committee in view, make a request to supply the copy of the report to the
learned Judge.

141. The necessary conclusion, therefore, is that the learned Judge is
entitled to the supply of a copy of the report of the committee. Its
concomitant would be that the learned Judge needs time to reflect upon to
taking a decision and action thereon. Though the Speaker was sought to be
impleaded as a respondent to the writ petition, later on he was deleted.
Therefore the question of direction to Hon’ble the Speaker with a request
not to lay the report on the floor of each House of Parliament does not
arise. Necessarily, the committee is to be requested to withhold submission
of its report for a reasonable time.

142. Accordingly, I allow the writ petition and direct the Registrar
General to communicate a letter of request to Sri Justice P. B. Sawant
Committee to supply a copy of the report to Hon’ble Sri Justice V.
Ramaswami and to convey further request to withhold submission of its
report for a reasonable time from the date of the receipt of the letter of
request from the Registry. The Attorney General is also requested to
apprise the Hon’ble Speaker of the Lok Sabha of the order passed in this
behalf and if necessary to extend the needed time to enable the committee
to submit its report within that extended time. The writ petition is
accordingly ordered but in the circumstances without cost.

ORDER

The Writ Petition is disposed of in terms of, and in accordance with the
majority opinion.