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PETITIONER: SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS., ETC.

DATE OF JUDGMENT29/10/1991

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SHARMA, L.M. (J) VENKATACHALLIAH, M.N. (J) VERMA, JAGDISH SARAN (J) AGRAWAL, S.C. (J)

CITATION:  1992 AIR  320            1991 SCR  Supl. (2)   1  1991 SCC  (4) 699        JT 1991 (6)   184  1991 SCALE  (2)844  CITATOR INFO :  RF         1992 SC2219  (1,2,4,8,9,16,17,23,TO 26,33,3

ACT: Constitution of India. 1950:     Articles  124(4)  and (5) and 118--Removal of  Judge  of Supreme Court--Motion for presenting an Address to President and decision of Speaker of Lok Sabha to admit the motion and constitute a committee under Judges (inquiry) Act for inves- tigation and proof of grounds--Whether lapses on dissolution of  the  Lok Sabha--Whether Judges (inquiry) Act  being  law under Article 124(5) excludes operation of doctrine of lapse and  also rules framed under Article  118--Whether  Articles 124(5) and 118 operate in different fields-Question  whether the  motion  lapsed  or  not  on  the  dissolution  of   Lok Sabha--Justiciability of.     Articles  124(4) and (5) and 121--Scope and  interpreta- tion  of-Removal of Judge of Supreme Court---Whether  Justi- ciable---Enactment of law under Article 124(5) for  regulat- ing procedure for investigation and proof of misbehaviour or incapacity of Judges-----Whether mandatory--Word ’may  "When to be construed as ’shall ’.     Articles  124(4)  and (5) and 32---Removal of  Judge  of Supreme Court ---Apart from constitutional process,  whether Supreme  Court  has  jurisdiction to  enquire  into  alleged misbehaviour or incapacity and restrain the concerned  Judge from  exercising  judicial junctions--Whether  it  can  give legal  directive to Chief Justice of India not to allot  any judicial work to the concerned Judge--Judge facing  enquiry, continuing to discharge judicial functions-----Propriety of.     Article  32 ---Public Interest Litigation--Inquiry  Com- mittee constituted by the Speaker of Lok Sabha under  Judges (inquiry) Act to investigate into the alleged misconduct  of Judge of Supreme Court--Writ Petitions seeking directions to Union  Government to enable the Committee to  discharge  its functions  under  the  Act and to restrain  the  Judge  from performing judicial functions during pendency of proceedings before  the Committee---Maintainability of--Locus standi  of Sub-committee on Judi- 2 cial  Accountability  and Supreme Court Bar  Association  to

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sue--Whether  Court could refuse to interfere on grounds  of infructuousness,  propriety  and  futility--Declaration   of legal and Constitutional position--Duty of  Court--Different organs  of  State to consider matters within  the  orbit  of their respective jurisdictions and powers. Judges (inquiry) Act, 1968: Constitutional validity of.     Sections 3 and 6--Removal of Judge--Motion for  present- ing  an address to President admitted and Committee  consti- tuted  by  the  Speaker of Lok  Sabha  to  investigate  into charges  of misconduct----Whether lapses on  dissolution  of the  House--Whether  the Act, being law made  under  Article 124(5) of Constitution, excludes doctrine of lapse and  also rules  of procedure for the Lok Sabha framed  under  Article 118--Action  of  Speaker --Whether vitiated  on  grounds  of denial  of notice and pre-decisional opportunity of  hearing to  concerned  Judge  and  Speaker’s  political  affiliation ---Doctrine  of statutory exceptions or  necessity--Applica- bility of. Constitutional Law:     Separation of Powers under federal set-up--Court--Inter- preter  of  limits  of  authority  of  different  organs  of State----Judicial  review--Incidental  to and  flowing  from concept of written Constitution, the fundamental and  higher law. Interpretation of Constitution:     Constructions  which strengthen the fundamental  feature of  the  Constitution to be adoped-Rule  of  law--Whether  a basic feature---Independence of Judiciary----Whether  essen- tial attribute of Rule of Law.     Aids      to     Construction--Constituent      Assembly debates--Whether could be relied upon--Comparative Study  of Constitution  of other Countries-Whether afford proper  per- spective--Resort to historical background-Whether  permissi- ble.     Administrative Law--Natural Justice--Motion for  removal of  a Judge under Judges (Inquiry) Act-Speaker  deciding  to admit  the  motion and constituting a Committee  to  enquire into  allegations  of misbehaviour-Whether  Judge  concerned entitled to pre-decisional opportunity of hearing. 3 Practice and Procedure:     Removal    of    a    Judge    Constitutional    process pending--Conduct  of members of the bar--Propriety  required that  the  Judge should not be embarrassed even  before  the charges  were  proved----Level  of  debate  in  and  out  of Court----To be dignified and decorous. Words & Phrases: Word ’may ’--When could be read as’shall ’.

HEADNOTE:     Upon a notice given by 108 members of the 9th Lok  Sabha of  a Motion for presenting an Address to the President  for the removal of a sitting Judge of the Supreme Court for  the alleged misconduct committed by him while he was functioning as  Chief  Justice of a High Court, the Speaker of  the  Lok Sabha  admitted the Motion and constituted a Committee  con- sisting of a sitting Judge of this Court, Chief Justice of a High  Court and a distinguished jurist in terms  of  Section 3(2)  of the Judges (Inquiry) Act, 1968.  Subsequently,  the Lok Sabha was dissolved and its term came to an end.     On  its  understanding that the Motion as  well  as  the decision of the Speaker thereon had lapsed consequent on the dissolution  of the Lok Sabha, the Union government did  not

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act  in aid of the decision of the Speaker, and 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 II Schedule to the  Constitu- tion.     Thereupon,  a body called the Sub-Committee on  Judicial Accountability,  claiming to be a Sub-Committee  constituted by  an  All India Convention on Judicial  Accountability  to carry  forward the task of implementing the  resolutions  of the  conventions,  and the Supreme  Court  Bar  Association, seeking to prosecute the matter in the larger public  inter- est and, in particular, in the interests of litigant public, filed  two  Writ Petitions before this  Court.  Two  prayers common to both the petitions were, first, that the Union  of India  be  directed to take immediate steps  to  enable  the Inquiry  Committee  to  discharge its  functions  under  the Judges  (Inquiry)  Act, 1968 and, second,  that  during  the pendency  of the proceedings before the Committee  the  con- cerned  Judge should be restrained from performing  judicial functions and from exercising Judicial powers.     It  was  contended  on behalf of  the  petitioners  that pending  business  lapsed on prorogation, and as  a  general practice the House was 4 usually  prorogued before it was dissolved, but  impeachment motions  were  sui-generis in their nature  and,  therefore, they  did  not  lapse; that the question  whether  a  motion lapsed or not was a matter pertaining to the conduct of  the business  of the House of which the House was the  sole  and exclusive  master; no aspect of the matter  was  justiciable before  a Court and Houses of Parliament were privileged  to be the exclusive arbiters of the legality of their  proceed- ings, that it would be highly inappropriate that the Speaker should  issue notice to a Judge and call upon him to  appear before him; that these proceedings could not be equated with disciplinary or penal proceedings and the Speaker would  not decide  anything against the Judge at that stage  and  would merely  decide whether the matter would bear  investigation; that the constitutional machinery for removal of a Judge was merely a political remedy for judicial misbehaviour and  did not  exclude the judicial remedy available to the  litigants to ensure and enforce judicial integrity, that the right  to move  the  Supreme Court to enforce fundamental  rights  was itself  a fundamental right and that took within its  sweep, as inhering in it, the right to an impartial judiciary  with persons of impeccable integrity and character, without which the  fundamental  right  to move the  court  itself  becomes barren  and hollow, that the court itself had the  jurisdic- tion  - nay a duty to ensure the integrity and  impartiality of the members composing it and restrain any member who  was found  to lack in those essential qualities and  attainments at which public confidence is built.     Another Writ Petition was filed by an individual by  way of  a  counter to the second prayer in  the  Writ  Petitions filed by the SubCommittee on Judicial Accountability and the Supreme  Court Bar Association. It was contended  that  till the  Inquiry  Committee actually found the  concerned  Judge guilty  of charges, there should be no interdiction  of  his judicial  functions and that if such a finding was  recorded then thereafter till such time as the Motion for the presen- tation  of  the  Address for the removal of  the  Judge  was disposed of by the Houses of Parliament--which should not be delayed  beyond  180 days--the President may ask  the  Judge concerned to recuse from judicial functions.     Another  Writ  Petition was also filed by  a  practising

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Advocate  challenging  the constitutional  validity  of  the Judges (Inquiry) Act, 1968 as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Constitution of India and seeking a  declaration that the’ Motion presented by 108 Members  of Parliament for the removal of the Judges 5 had lapsed with the dissolution of the Lok Sabha. The  peti- tioner  also  sought  the quashing of the  decision  of  the Speaker  admitting  the Motion, on the ground of  denial  of opportunity of being heard to the concerned Judge before the admission  of  Motion and constitution of the  Committee  by Speaker.     A Transfer Petition was filed seeking the withdrawal  by the  Supreme Court to itself from the Delhi High  Court  the Writ  Petition filed in the High Court, where  reliefs  were similar  to those prayed for in the Writ Petition  filed  by the  practising Advocate. The Writ Petition was directed  to be  withdrawn to the Supreme Court and was heard along  with other Writ Petitions.     1t  was contended on behalf of the petitioners in  these Writ  Petitions that before taking a decision to  admit  the motion  and constituting a Committee for  investigation,  it was incumbent upon the Speaker, as a minimum requirement  of natural  justice, to afford an opportunity to the  Judge  of being heard since such a decision had momentous consequences both to the Judge and to the judicial system as a whole  and that  any  politically motivated steps to  besmear  a  Judge would  not  merely  affect the Judge himself  but  also  the entire system of administration of justice and therefore  it would  greatly  advance the objects and purposes  of  Judges (inquiry) Act, 1968 if the Judge concerned himself was given such  a  hearing;  that the Speaker had  acted  contrary  to Constitutional  practice,  that the manner in which  he  had admitted  the  motion  smacked of malafides  and  since  the Speaker  had not entered appearance and denied  the  allega- tions, he must be deemed to have admitted them; that  having regard  to the nature of the area the decision of the  Court and  its writ is to operate in, the Court should decline  to exercise its jurisdiction, and that any decision rendered or any writ issued might, ultimately become futile and  infruc- tuous  as the constitution of and investigation by the  com- mittee  were not, nor intended to be, an end  by  themselves culminating in any independent legal consequence, but only a proceeding preliminary to and preceding the deliberations of the  House on the motion for the presentation of an  address to  the  President  for the removal of a  Judge,  which  was indisputably within the exclusive province of the Houses  of Parliament over which courts exercised no control or  juris- diction.     On behalf of the Union of india it was contended that  a combined  reading  of Articles 107, 108 and 109  would  lead irresistibly to the conclusion that upon dissolution of  the House, all bills would 6 lapse  subject only to the exception stipulated  in  Article 108, that on first principle also it required to be accepted that  no motion should survive upon the dissolution  of  the House unless stipulated otherwise under the Rules of  proce- dure  and conduct of business; the doctrine of lapse  was  a necessary concomitant of the idea that each newly constitut- ed  House  was a separate entity having a life  of  its  own unless  the business of the previous House was carried  over by  the force of statute or rules of procedure and that  the question whether a motion lapsed or not was to be decided on the  basis of the provisions of law guiding the  matter  and

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the  House  itself was not its final arbiter and  the  Court alone  had jurisdiction to examine and pronounce on the  law of the matter. Disposing of the cases, this Court,     HELD: By majority Per Ray. J. (for himself,  Venkatacha- liah, Verma and Agrawal, J J)     1.1 Where there is a written Constitution which  consti- tutes  the fundamental and in that sense a "higher law"  and acts  as a limitation upon the Legislature and other  organs of  the State as grantees under the Constitution, the  usual incidents of parliamentary sovereignty do not obtain and the concept  is one of ’limited Government’. Judicial review  is an incident of and flows from this concept of the  fundamen- tal and the higher law being the touchstone of the limits of the  powers of the various organs of the State which  derive power and authority under Constitution and that the judicial wing is the interpreter of the Constitution and,  therefore, of  the limits of authority of the different organs  of  the State. In a federal set-up, the judiciary becomes the guard- ian of the Constitution.The inter-  pretation of the Consti- tution  as  a  legal instrument and its  obligation  is  the function of the Courts. It is emphatically the province  and duty of the judicial department to say what the law is.  [51 G-H, 52A, D]     1.2  In interpreting the constitutional provisions  con- cerning the judiciary and its independence the Court  should adopt  a  construction which  strengthens  the  foundational features  and the basic structure of the Constitution.  Rule of  law is a basic feature of the Constitutional fabric  and is  an integral part of the constitutional structure.  Inde- pendence of the judiciary is an essential attribute of  Rule of law. [31 D] 1.3 In construing the Constitutional provisions, the law and 7 procedure for removal of Judges in other countries afford  a background  and  a comparative view. The solution  must,  of course, be found within our own Constitutional Scheme. But a comparative idea affords a proper perspective for the under- standing  and interpretation of the  Constitutional  Scheme. [31 G-H]     Barringtons  Case [1830]; Terrell v. Secretary of  State for the Colonies and Another, [1953I 2 QB 482, referred to.     Constituent Assembly Debates Vols. I to VI @ pp  899,900 Vol. VIII @ pp. 243-262, referred to.     Halsbury’s  Laws of England, 4th Ed. Vol. p  1108;  She- treet ’Judges on Trial’ (1976); pp. 404-405; Rodney  Brazier ’Constitutional Texts’ (1990) pp. 606-607; Gall ’The Canadi- an Legal System’ (1983); pp. 184-186, 189; Lane’s Commentary on  The  Australian Constitution (1986)  p.  373;  Mclelland ’Disciplining  Australian Judges’ (1990) 64 ALJ 388,  at  p. 403; Henry J. Abraham.’ The Judicial Process, 3rd Ed. p. 45; Robert  J. Janosik: Encyclopeadia of the  American  Judicial System,  Vol  II  pp. 575 to 578; "The  Impeachment  of  the Federal  Judiciary" Wrisley Brown Harvard Law  Review  1912- 1913  684 at page 698; ’The Judicial Process in  Comparative Perspective’   (Clarendon  Press-Oxford 1989  at  page  73); (Erskine May’s "The Law, Privileges, Proceeding and Usage of Parliament" (Twenty-first Edition London Butterworths 1989); M.N.  Kaul  and S.L. Shakdher in Practice and  Procedure  of Parliament", referred to.     2.1 It is not correct to say that the question whether a motion  has  lapsed or not was a matter  pertaining  to  the conduct of the business of the House, of which the House was the  sole  and exclusive master, and that no aspect  of  the matter was justiciable before a Court. [29 C ,53 G]

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   2.2  The  question whether the motion has  lapsed  is  a matter  to be pronounced upon on the basis of the  Constitu- tion and the relevant rules. [53 E]     2.3 On such interpretation of the Constitutional  provi- sions as well as the Judges (Inquiry) Act, 1968, the  Courts retain jurisdiction to declare that a motion for removal  of Judge does not lapse on dissolution of the House. [53F-G] Bradlaugh v. Gossett, [18841 12 Q.B.D. 271, distinguished. 8      A.K.  Gopalan  v. The State of Madras,  |1950]  SCR  88 Special Reference Case, [1965] 1 SCR 413, referred to.      Barton  v. Taylor, [1886] 11 AC 197,  Rediffuson  (Hong Kong) Ltd. v. Attorney General of Hong Kong, [1970I AC 1136, referred to.      3.1  The constitutional process for removal of a  Judge upto  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.  Upto that  point the matter cannot be said to remain outside  the Court’s jurisdiction. [66 E]     3.2  The scheme of Articles 124(4) and (5) is  that  the entire process of removal is in two parts - the first  part, 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, the second part under clause (4) is in  Par- liament and that process commences only on proof of misbeha- viour or incapacity 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. [61 D]     3.3 The context and setting in which clause (5)  appears along with clause (4) in Article 124 indicate its nature and distinguish it from Articles 118, 119 and 121, all of  which relate  to procedure and conduct of business in  Parliament. [61 B-C]     3.4 The validity of law enacted by the Parliament  under clause  (5) of Article 124 and the stage upto conclusion  of the  inquiry  in accordance with that  law,  being  governed entirely by statute, 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. [59 G-H, 60 A]     4.1  Article 121 suggests that the bar on discussion  in Parliament  with  respect  to the conduct of  any  Judge  is lifted ’upon a 9 motion  for presenting an address to the  President  praying for  the  removal of a Judge as hereinafter  provided’.  The words  ’motion’  and ’as hereinafter provided’  are  obvious references  to the motion for the purpose of clause  (4)  of Article 124 which, in turn, imports the concept of  "proved" misbehaviour or incapacity. What lifts the bar under Article 121  is the ’proved’ misbehaviour or incapacity. Clause  (5) of  Article  124 provides for an enactment of  law  for  the purpose of investigation and proof of misconduct or incapac- ity preceding the stage of motion for removal on the  ground of ’proved’ misbehaviour or incapacity under clause (4). [56

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H, 57 A-B]     4.2  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  upto 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 remov- al 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  pre- senting  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  conse- quences  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). [57 G-H, 58 A-B]     4.3  Thus prior proof of misconduct in  accordance  with the  law made under Article 124(5) is a condition  precedent for  the lifting of the bar under Article 121  against  dis- cussing  the conduct of a Judge in the  Parliament.  Article 124(4) really becomes meaningful only with a law made  under Article 124(5), without which, the constitutional scheme and process for removal of a Judge remains inchoate. [66 F]     4.4  The  bar in Article 121 applies  to  discussion  in Parliament  but  investigation and proof  of  misconduct  or incapacity  cannot exclude such discussion.  This  indicates that  the machinery for investigation and proof must  neces- sarily  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 limita- 10 tion  of  Article  121. The policy appears to  be  that  the entire  stage  upto  proof of  misbehaviour  or  incapacity, beginning with the initiation of investigation on the  alle- gation  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. Parliament neither has any role to  play till misconduct or incapacity is found proved nor has it any control over the machinery provided in the law enacted under Article 124(5). Parliament comes in the picture only when  a finding is reached by that machinery that the alleged misbe- haviour 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  Arti- cles  121, 124(4) and 124(5). The general scheme of the  Act conforms to this view. [58 H-59 A-D]     4.5 It is not the law enacted under Article 124(5) which abridges or curtails the parliamentary process or exclusivi- ty of its jurisdiction, but the Constitutional Scheme itself which  by enacting clauses (4) and (5) simultaneously  indi- cated that the stage of clause (4) is reached and the  proc- ess thereunder commences only when the alleged  misbehaviour or  incapacity is proved in accordance with the law  enacted under clause (5). It is only then that the need for discuss- ing  a Judge’s conduct in the Parliament arises and,  there- fore, the bar under Article 121 is lifted. [60 D-E]     5.1 If the motion for presenting an address for  removal is envisaged by Articles 121 and 124(4) ’on ground of proved misbehaviour  or incapacity’, it presupposes  that  misbeha-

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viour or incapacity has been proved earlier. This is more so on account of the expression ’investigation and proof’  used in  clause (5) with specific reference to clause (4),  indi- cating  that  ’investigation and proof’ of  misbehaviour  or incapacity  is not within clause (4) but within clause  (5). Use  of the expression ’same session’ in clause (4)  without any  reference to session in clause (5) also indicates  that session  of House has no significance for clause  (5)  i.e., ’investigation  and proof’ which is to be entirely  governed by the enacted law and not the parliamentary practice  which may be altered by each Lok Sabha. [61 F-H]     5.2  The  significance of the word ’proved’  before  the expression  ’misbehaviour  or incapacity’ in clause  (4)  of Article 124 is also indicated when the provision is compared with  Article 317 providing for removal of a member  of  the Public  Service Commission. The expression in clause (1)  of Article 317 used for describing the ground 11 of  removal is ’the ground of misbehaviour’ while in  clause (4)  of Article 124, it is, ’the ground of  proved  misbeha- viour or incapacity’. [62 A]     5.3  Use of the word ’may’ in clause (5) indicates  that for  the  ’procedure for presentation of address’ it  is  an enabling provision and in the absence of the law, the gener- al procedure or that resolved by the House may apply but the ’investigation  and proof’ is to be governed by the  enacted law.  The word ’may’ in clause (5) is no impediment to  this view. When a provision is intended to effectuate a right  -- here it is to effectuate a constitutional protection to  the Judges under Article 124(4) -- even a provision as in  Arti- cle 124(5) which may otherwise seem merely enabling  becomes mandatory. The exercise of the power is rendered obligatory. The use of the word ’may’ does not necessarily indicate that the whole  of clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even  for the investigation and proof of the misbehaviour or incapaci- ty or not. [62 D, 62 G, 63 E-F]     State  of Uttar Pradesh v. Joginder Singh, [1964] 2  SCR 197  at 202;  Punjab Sikh Regular Motor Service,  Moudhapara v. The Regional Transport Authority, Raipur & Anr., [1966] 2 SCR 221, referred to.     Erederic  Guilder  ,Julius v. The Right  Rev.  The  Lord Bishop  of  Oxford,’  the  Rev.  Thomas  Tellusson   Carter, [1879-80] 5 A.C. 214 at 244, referred to.     5.4  Similarly,  use of word ’motion’  to  indicate  the process  of investigation and proof in the Judges  (Inquiry) Act,  1968, because the allegations have to be presented  to the  ’Speaker’ does not make it ’motion in the  House’  not- withstanding use of that expression in Section 6. Otherwise, section 6 would not say that no further step is to be  taken in  case  of a finding of ’not guilty’. It only  means  that when  the  allegation is not proved, the  Speaker  need  not commence the process under clause (4) which is started  only in case it is proved. The Speaker is, therefore, a statutory authority  under the Act chosen because the further  process is parliamentary and the authority to make such a  complaint is  given to Members of Parliament. Moreover, the  enactment under Article 124(5) cannot be a safe guide to determine the scope of Article 124(5). [64 A-C]     6.1 Article 124(5) does not operate in the same field as Article 118 relating to procedure and conduct of business in Parliament. [61C] 12

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   6.2  Article  118 is a general provision  conferring  on each  House  of Parliament the power to make  its  rules  of procedure. These rules are not binding on the House and  can be  altered by the House at any time. A breach of the  rules amounts  to an irregularity and is not subject  to  judicial review in view of Article 122. [64 G]     6.3 Article 124(5) is in the nature of a special  provi- sion  intended  to regulate the procedure for removal  of  a Judge  under  Article  124(4), which is not a  part  of  the normal business of the House but is in the nature of special business. It covers the entire field relating to removal  of a Judge. Rules made under Article 118 have no application in this field. [64 H, 65 A]     6.4  Article 124(5) has no comparison with Article  119. Articles 118 and 119 operate in the same field viz.,  normal business  of  the  House. It was,  therefore,  necessary  to specifically  prescribe that the law made under Article  119 shall prevail over the rules of procedure made under Article 118.  Since  Articles 118 and 124(5)  operate  in  different fields;  a provision like that contained in Article 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 a  law  would  constitute illegality  and could not be immune from  judicial  scrutiny under Article 122(1). [65 B-C]     7.1  -Neither the doctrine that dissolution of  a  House passes  a sponge over parliamentary slate nor  the  specific provisions  contained  in  any rule or  rules  framed  under Article  118  of the Constitution determine  the  effect  of dissolution  on  the  motion for removal of  a  Judge  under Article 124, because Article 124(5) and the law made  there- under exclude the operation of Article 118 in this area. [49 F]     Purushothaman Nambudiri v.. The State of Kerala,  [1962] Suppl. 1 SCR 753, referred to.     7.2 The law envisaged in Article 124(5) is parliamentary law which is of higher quality and efficacy than rules  made by  the House for itself under Article 118. Such a  law  can provide against the doctrine of lapse. [50 H]     7.31n the constitutional area of removal of a Judge, the law  made under Article 124(5) must be held to go  a  little further  and  to exclude the operation of  the  Rules  under Article 118 and no ques- 13 tion  of repugnance could arise to the extent the  field  is covered by the law under Article 124(5). [51 C] State  of  Punjab v. Sat Pal Dang & Ors, [1969] 1  SCR  478, relied on.     8.1 The Judges (Inquiry) Act, 1968 reflects the  consti- tutional  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  proc- ess 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  inde- pendence. The provisions of the Judges (Inquiry) Act do  not foul with the constitutional scheme. [65 B-C, 64 C]     8.2 The Speaker, while admitting a motion and constitut- ing a Committee to investigate the alleged grounds of misbe-

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haviour or incapacity does not act as part of the House. The House  does  not come into the picture at  this  stage.  The provisions of the Judges (Inquiry) Act, 1968 are not  uncon- stitutional  as abridging the powers and privileges  of  the House. The Judges (Inquiry) Act, 1968 is constitutional  and is intra vires. [66 G-H]     9.1 The Judges (Inquiry) Act, 1968 is law enacted  under Article 124(5) which provides against doctrine of lapse.     9.2 The effect of sections 3(1) and (2) and 6(2) of  the Judges  (Inquiry)  Act, 1968, is that the motion  should  be kept  pending till the committee submits its report  and  if the  committee finds the Judge guilty, the motion  shall  be taken  up  for consideration. Only one motion  is  envisaged which  will remain pending. No words of limitation that  the motion  shall  be kept pending subject to  usual  effect  of dissolution of the House can or should be imported. [50 G]     9.3  Section 3 of the Act applies to both the Houses  of Parliament. The words "shall keep the motion pending" cannot have  two different meanings in the two different  contexts. It can only mean that the consideration of the motion  shall be deferred till the report 14 of  the Committee implying that till the happening  of  that event  the motion will not lapse. Therefore, such  a  motion does not lapse with the dissolution of the House of  Parlia- ment. [51 D]     10.  At  the stage of the provisions  when  the  Speaker admits  the motion under section 3 of the  Judges  (Inquiry) Act,  a  Judge is not, as a matter of right, entitled  to  a notice. The scheme of the statute and the rules made  there- under  by necessary implication, exclude such a  right.  But that  may not prevent the Speaker, if the facts and  circum- stances  placed before him indicate that hearing  the  Judge himself  might  not  be inappropriate, might do  so.  But  a decision to admit the motion and constitute a Committee  for investigation  without  affording such an  opportunity  does not, by itself and for that reason alone, vitiate the  deci- sion. [68 E-G]     11.1   It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct, and any conduct which tends to impair public confi- dence  in the efficiency, integrity and impartiality of  the court is indeed forbidden. But, the proposition that,  apart from  the constitutional machinery for removal of  a  Judge, the judiciary itself has the jurisdiction and in appropriate cases  a  duty to enquire into the integrity of one  of  its members  and  restrain the Judge  from  exercising  judicial functions  is beset with grave risks. The court  would  then indeed  be acting as a tribunal for the removal of  a  Judge and  is  productive  of more problems than it  can  hope  to solve. [69 C, 70 H]     Sampath  Kumar & Ors. v. Union of India & Ors, [1985]  4 S.C.C. 458, referred to. Corpus Juris Secundum, (VoI.48A), referred to.     11.2   The relief of a direction to restrain  the  Judge from  discharging judicial functions cannot be granted.  The entire  Constitutional  Scheme,  including  the   provisions relating  to  the process of removal of a Judge  are  to  be taken  into  account  for the purpose  of  considering  this aspect. Since the Constitutional Scheme is that the  Judge’s conduct cannot be discussed even in the Parliament which  is given  the  substantive power of removal, till  the  alleged misconduct or incapacity is ’proved’ in accordance with  the law enacted for this purpose, it is difficult to accept that any  such  discussion  on the conduct of the  Judge  or  any

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evaluation or inference as to its 15 merit  is  permissible  according to  law  elsewhere  except during investigation before the Inquiry Committee constitut- ed  under  the statute for this purpose.  Therefore,  it  is difficult  to accept that there can be any right  in  anyone running  parallel  with the Constitutional Scheme  for  this purpose contained in clauses (4) and (5) of Article 124 read with Article 121. No authority can do what the  Constitution by necessary implication forbids. [71 B-F]     11.3   The question of propriety is, however,  different from that of legality. Whether the Judge should continue  to function  during the intervening period is to be covered  by the  sense of propriety of the concerned Judge  himself  and the judicial tradition symbolised by the views of the  Chief Justice of India. It should be expected that the Judge would be  guided  in such a situation by the advice of  the  Chief Justice  of  India,  as a matter of  convention,  unless  he himself  decided  as  an act of propriety  to  abstain  from discharging judicial functions during the interregnum. It is reasonable  to assume that the framers of  Constitution  had assumed  that a desirable convention would be followed by  a Judge in that situation which would not require the exercise of  a  power of suspension.[It would also be  reasonable  to assume that the Chief Justice of India is expected to find a desirable  solution in such a situation to avoid  embarrass- ment  to  the concerned Judge and to the  Institution  in  a manner  which is conducive to the independence of  judiciary and should the Chief Justice of India be of the view that in the interests of the institution of judiciary it is  desira- ble  for  the Judge to abstain from judicial work  till  the final  outcome  under Article 124(4), he  would  advise  the Judge accordingly, and the concerned Judge would  ordinarily abide by the advice of the Chief Justice of India. All  this is, however, in the sphere of propriety and not a matter  of legal  authority  to  permit any court to  issue  any  legal directive  t? the Chief Justice of India for  this  purpose. [71 G, 72 A, C-E]     12.  Even  on the allegations made in the  petition  and plea of malafides which require to be established on  strong grounds no such case is made out. A case of malafides cannot be made out merely on the ground of political affiliation of the  Speaker either. That may not be a sufficient ground  in the  present context. At nil events, as the  only  statutory authority  to  deal with the matter, doctrine  of  statutory exceptions or necessity might be invoked. [74 B-C] 13. The law as to standing to sue in public interest actions has 16 undergone a vast change over the years and liberal standards for determining locus standi are now recognised. The present matter  is of such nature and the constitutional  issues  of such  nature  and  importance that it cannot  be  said  that members of the Bar, and particularly, the Supreme Court  Bar Association have no locus standi in the matter. An elaborate re-survey  of  the principles and precedents over  again  is unnecessary. Suffice it to say that from any point view, the petitioners satisfy the legal requirements of  the standing to sue. [74 E-F]     S.P.  Gupta & Ors. etc. etc.  v. Union of India  &  Ors. etc. etc., [1982] 2 SCR 365, relied on.     14.  Certain submissions advanced on the prayer  seeking to re.strain the judge from functioning till the proceedings of the committee were concluded lacked as much in  propriety as in dignity and courtesy with which the Judge is entitled.

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While  the  members of the bar may claim to  act  in  public interest,  they have, at the same time, a duty  of  courtesy and  particular care that in the event of the charges  being found baseless or insufficient to establish any moral turpi- tude,  the  Judge does not suffer irreparably  in  the  very process. The approach should not incur the criticism that it was  calculated  to expose an able and  courteous  Judge  to public  indignity even before the allegations were  examined by the forum constitutionally competent to do so. The  level of the debate both in and outside the Court should have been more  decorous and dignified. Propriety required  that  even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed. The  constitutional  protection to Judges is not  for  their personal benefit; but is one of the means of protecting  the judiciary  and  its independence and is, therefore,  in  the larger  public interest. Recourse to constitutional  methods must be adhered to if the system were to survive. [74 G,  75 A-C]     15.1    The interpretation of the law declared  by  this Court  that a motion under section 3(2) of the  Judges  (In- quiry) Act, 1968, does not lapse upon the dissolution of the House  is  a  binding declaration. If the law  is  that  the motion  does  not lapse, there can be no  occasion  for  the House  to say so at any time and it is erroneous  to  assume that the Houses of Parliament would act in violation of  the law,  since  the  interpretation of the law  is  within  the exclusive power of the courts. [76 E] 17     25.2    If the House is not required to’  consider  this question  since the parliamentary process can commence  only after a finding of guilt being proved, the further  question of  a  futile writ also does not arise. The point  that  the House can decide even after a finding of guilt that it would not proceed to vote for removal of the Judge is not  germane to the issue since that is permissible in the Constitutional Scheme itself under Article 124(4), irrespective of the fact whether  Article  124(5) is a mere enabling provision  or  a constitutional  limitation  on the exercise of  power  under Article 124 (4). [60 B-C]     15.3   The Union Government has sought to interpret  the legal  position for purpose of guiding its own  response  to the  situation and to regulate its actions on the  Speaker’s decision. That understanding of the law is unsound. [76 G]     15.4    No specific writ of direction need issue to  any authority. Having regard to the nature of the subject matter and the purpose it is ultimately intended to serve, all that is  necessary is to declare the legal and correct  constitu- tional position and leave the different organs of the  State to  consider matters falling within the orbit of  their  re- spective jurisdiction and powers. [76 H, 77 A]     15.5   In the circumstances, the question of  Court  de- clining to exercise its jurisdiction on the ground that  the Judgment rendered and Writ issued by it would become infruc- tuous does not arise. [31 A-C, 77 A] Per Sharma, J. (dissenting);     1.1  On a close examination of the Constitution,  it  is clear  that a special pattern has been adopted with  respect to  the  removal of the members of the three organs  of  the State. The Executive, the Legislature and the  Judiciary--at the  highest  level, and this plan having  been  consciously included  in  the Constitution, has to be kept  in  mind  in construing its provisions. The approach should be that  when a question of removal of a member of any of the three  wings at the highest level-i.e. the President; the Members of  the

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Parliament and the State Legislatures; and the Judges of the Supreme  Court and the High Courts-arises, it is left to  an organ other than where the problem has arisen, to be  decid- ed. Consistent with this pattern, Clause (4) of Article  124 in emphatic terms declares that a Judge of the Supreme Court or  the  High  Court shall not be removed  from  his  office except on a special majority of the Members of each House of Parliament. Both the Executive and the Judiciary 18 are  thus  excluded in this process. The  scheme  cannot  be construed as lack of trust in the three organs of the State. There  are  other relevant considerations to be  taken  into account  while framing and adopting a written  Constitution, which include the assurance to the people that the possibil- ity  of  a subjective approach clouding the decision  on  an issue as sensitive as the one under consideration, has  been as far eliminated as found practicable in the situation. And where this is not possible at all, it cannot be helped,  and has  to  be  reconciled by application of  the  doctrine  of necessity,  which is not attracted in the instant case.  [81 F-H, 82 D-E,F-G]     A11 Party Hill Leaders Conference v. M.A. Sangma, [1978] 1 SCR 393 at 411, referred to. The Federalist: Hamilton, referred to.     1.2 There cannot be two opinions on the necessity of  an independent  and fearless judiciary in a democratic  country like  ours, but it does not lead to the  further  conclusion that  the independence of judiciary will be under a  threat, unless the matter of removal of Judges, even at the  highest level,  is not subjected to the ultimate control of  Courts. Great  care was taken by the framers of the Constitution  to this aspect and the matter was examined from every  possible angle,  before adopting the scheme as laid down. So  far  as the  district courts and subordinate courts  are  concerned, the  control has been vested in the High Court, but when  it came  to  the High Court and Supreme Court  Judges,  it  was considered  adequate for the maintenance of their  independ- ence to adopt and enact the Constitution as it is found now. There  is no reason to doubt the wisdom of  the  Constituent Assembly  in entrusting the matter exclusively in the  hands of the Parliament and there is no ground for suspicion  that the  Members  of Parliament or  their  representatives,  the Speaker  and the Chairman, shall not be acting in  the  true spirit of the Constitutional provisions. The mandate of  the Constitution is binding on all. [100 B-E]     2.1 The exercise of power under clause (4) was not  made conditional on the enactment of a law under clause (5),  and the  reason  for  inserting clause (5) in  Article  124  was merely  for elaborating the provisions. Clause (4) does  not state  that the misbehaviour or the incapacity of the  Judge will  have to be proved only in accordance with a law to  be passed  by the Parliament under clause (5) Clause (4)  would continue to serve the purpose as it does now, without any 19 amendment if clause (5) were to be removed from the  Consti- tution  today. There is no indication of any  limitation  on the power of the Parliament to decide the manner in which it will  obtain  a finding on misbehaviour  or  incapacity  for further action to be taken by it. Clause (5) merely  enables the  parliament  to enact a law for this purpose, if  it  so chooses. [88 E, 88 A, 89 A]     2.2 The word ’may’ has been sometimes understood in  the imperative  sense as ’shall’, but ordinarily it indicates  a choice of action and not a command. In the present  context, there  is no reason to assume that it has been used  in  its

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extraordinary meaning. [88 F]     3.  The object of Article 121 is to prevent any  discus- sion in Parliament with respect to the conduct of a Judge of the  Superior Courts, except when it cannot be avoided.  The Article,  accordingly,  prohibits such a  discussion  except upon a motion for presenting an address to the President for removal of a Judge. [89 B]     4.1 The expression "motion" has not been defined in  the Judges (Inquiry) Act, 1968. The Lok Sabha Rules framed under Article  118 of the Constitution deal with "motions".  There are  separate  rules of procedures for conduct  of  business adopted  by the Rajya Sabha. Section 3(1) of the Act  states that  if  a notice of "motion" is given  for  presenting  an address  to  the President for the removal of a  Judge,  the Speaker or the Chairman, as the case may be, after  consult- ing  such  persons as he deems fit, as  also  such  relevant materials  which  may be available to him either  admit  the "motion"  or refuse to admit the same. The manner  in  which this  section  refers to "motion" in the Act for  the  first time without a definition or introduction clearly  indicates that  it is referring to that "motion" which  is  ordinarily understood  in the context of the two Houses  of  Parliament attracting their respective rules. Section 3 does not speci- fy  as  to how and to whom the notice of "motion" is  to  be addressed or handed over and it is not quite clear as to how the  Speaker  suddenly comes in the picture unless  the  Lok Sabha  Rules are taken into account. Therefore,  the  provi- sions  of the Act have to be read alongwith some of the  Lok Sabha  Rules. Rules 185, 186 and 137 which are relevant  for the  purpose  should be treated to be supplementary  to  the Act. [90 D-G, 91 B]     4.2  Sub-section  (2) of Section 3, which  is  of  vital importance in the present context, says that if the "motion" referred  to  in  subsection (1) is  admitted,  the  Speaker "shall keep the motion pending" 20 and constitute a Committee for investigation into the  alle- gations. 191 C]     4.3  The situs where the "motion" is pending  is  almost conclusive on the issue whether the House is seized of it or not.  The  Act does not leave any room for  doubt  that  the "motion"  remains pending in the House and not  outside  it. This  is  corroborated by the language used  in  proviso  to Section  3(2) which deals with cases where notices  of  "mo- tion" under Section 3(1) are given on the same date in  both Houses  of Parliament. It says that in such a situation,  no Committee shall be constituted unless the "motion" has  been "admitted in both Houses", and where such "motion" has  been admitted "in both Houses", the Committee shall be constitut- ed  jointly  by the Speaker and the Chairman. It is  not  an inadvertent  reference  in  the Act of  the  "motion"  being pending in the House: the Act and the Rules made  thereunder envisage  and deal with a "motion" which is admitted in  the House  and remains pending there to be taken up  again  when the  date is fixed by the Speaker on receipt of  the  report from the Committee. The language throughout the Act has been consistently  used  on this premise and is  not  capable  of being ignored or explained away. [91 D, G-H, 92 A, C-D]     4.4 The scope of the Act and the Rules is limited to the investigation  in  pursuance of a "motion" admitted  by  the Speaker. At the conclusion of the investigation the  Commit- tee  has to send the report to the Speaker (or the  Chairman as  the case may be) along with a copy of the  original  Mo- tion. If the finding goes against the Judge, the Motion, the same  original  Motion, together with the  report  would  be

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taken up for consideration by the House where the Motion  is pending, and the address and the Motion would be put to vote together  in each House of Parliament. What the Act and  the Rules contemplate is the original Motion to be taken up  for consideration  by the House, and if this Motion is  held  to have  exhausted itself on admission by the  Speaker  nothing remains on which the Act would operate. [92 E, G]  4.5 Thus, the concept of the original Motion being  pending in  the  House, to be taken up for debate and  vote  on  the receipt of the report of the Committee, is the life and soul of  the Act, and if that Motion disappears  nothing  remains behind to attract the Act. This idea runs through the entire Act and the Rules, and cannot be allowed to be replaced by a substitute.  The existence of a Motion pending in the  House is a necessary condition for the application of 21 the  Act. Bereft of the same, the Act does not  survive.  It is, therefore, not permissible to read the Act so as to mean that the House is not seised of the Motion and that it  does not have anything to do with the inquiry pending before  the Committee, until the report is received. If clauses (4)  and (5) of Article 124 are construed otherwise the Act will have to be struck down as ultra vires, or in any event,  inopera- tive  and  infructuous and, on this ground alone,  the  Writ Petitions are liable to be dismissed. [92 H, 93 A-B]     5.1  The mandate of the Constitution against  discussion on  the conduct of a Judge in the House is for everybody  to respect,  and it is the bounden duty of the Speaker  to  en- force  it.  He has to ensure that Article 121 is  obeyed  in terms  and spirit. The pendency of the motion in  the  House cannot be a ground to violate Article 121, and the apprehen- sion that if the motion is held to be pending in the  House, on its admission, the object of Article 121 would be defeat- ed is misconceived. [93 C, F]     5.2  The wider proposition that the House was seized  of the  matter  so effectively as to entitle  every  member  to demand a discussion in the House at any stage will not  only violate  Article 121, but also offend the provisions of  the 1968  Act. It is not correct to assume that if the right  of the  individual member to insist on immediate discussion  is denied, the consequence will be to deprive the Parliament of the  control  of the motion. The Speaker may  consult  other persons  before admitting the motion, and while so doing  he may  consult  the  members of the House  also,  but  without permitting  a  discussion in the  House.  The  consultation, which  the Act permits, is private in nature, not  amounting to  a public discussion, while the object of Article 121  is to  prevent  a  public debate. It may also be  open  to  the Speaker  to consult the House on a legal issue which can  be answered without reference to the conduct of Judge in  ques- tion,  as  for example, the issue involved  in  the  instant case, whether on account of dissolution of the old House the Motion  has lapsed and the Committee of Inquiry is  defunct. What  is  prohibited  is not every matter  relating  to  the removal of a Judge; the bar is confined to a discussion with respect  to the conduct of a Judge in the discharge  of  his duties. [95 E-H, 96A]     5.3  There  is no justification  for  interpreting  such portion  of  the 1968 Act, which directed  or  declared  the initial motion admitted by the Speaker to remain pending  in the House, as creating legal fiction limited for the purpose of  ensuring that the bar under Article 121 was  not  lifted prematurely. [96 B] 22     East  End Dwellings Co. Ltd. And Finsbury Borough  Coun-

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cil: 1952 A.C. 109, referred to.     5.4 A close reading of the entire Act indicates that the language  therein was consciously chosen to make  the  House seized  of the matter, and consequently it became  necessary to  include  the provision directing the  motion  to  remain pending  for the purpose of preventing a  premature  discus- sion.  The Act has, thus, very successfully  respected  both Articles 124 and 121 in their true spirit, by neatly  harmo- nising them. [97 B]     5.5 Parliament is in control of the matter from the very beginning  till the end. By the introduction of the  Speaker and  the requirement of a large number of members of  either House  to initiate the matter, the House is brought in  con- trol  of  the  proceeding through  its  representative,  the Speaker  or the Chairman. The ground of proved  misbehaviour or  incapacity is necessary only for putting the  matter  to vote  in the House under clause (4), and is not a  condition precedent  for  initiating a proceeding and  taking  further steps in this regard. ]97 G-H, 98 A]     5.6 It is a well established practice for a larger  body to  entrust  investigations to a smaller  body  for  obvious practical reasons, and such an exercise cannot be  characte- rised as indulging in abnegation of authority. It could have asked a Parliamentary Committee to enquire into the  allega- tions  or employed any other machinery for the purpose.  [98 D]     5.7 So long as the statute enables the House to maintain its  control  either directly or through  the  Speaker,  the entrustment of the investigation does not amount to  abdica- tion of power. It is a case where the Parliament has taken a decision  to respect the verdict of the Committee in  favour of the Judge, consistently with clause (4) and no fault  can be found. 199 B]     State  of Uttar Pradesh v. Batuk Deo Pati  Tripathi  and Anr., [1978] 2 SCC 102, referred to.     5.8 The House, which is in control of the proceeding  is entitled  to  take all necessary and relevant steps  in  the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted. If it  is held that the Committee is an  independent  statutory body not subject to the control of the House 23 directly  or through the Speaker, then the Act may  be  ren- dered  unworkable. Besides, this would lower the dignity  of the Chief Justice of India by providing a machinery consist- ing  of  5 or 4 Judges to sit in ,appeal over  him.  If  the Committee  is held to be functioning under  the  supervision and control of the Parliament, with a view to aid it for the purpose of a proceeding pending in the House, it will be the Parliament  which will be in control of the  proceeding  and not the Committee. [99 E-F, H]     6.1  When  even  after a verdict against  the  Judge  is returned  by  the  Committee, the Parliament,  or  for  that matter any of the two Houses can refuse to vote in favour of the  Motion for removal of a Judge, and the Court would  not have any jurisdiction to interfere in the matter, it is  not conceivable, that at the intermediate stage of investigation the  Court has got the power to intervene. This is  because, if  the  control of the House continues  on  the  proceeding throughout,  which can be exercised through the Speaker,  it cannot  be presumed that the Court has a parallel  jurisdic- tion,  which may result in issuance of contradictory  direc- tions. Besides, the Court cannot be expected to pass  orders in  the  nature of step in aid, where the  final  result  is beyond  its  jurisdiction.  Any order  passed  or  direction

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issued  by  this Court may result in merely an  exercise  in futility,  and may cause a situation, embarrassing both  for the  highest  judicial and legislative  authorities  of  the country. The Constitution cannot be attributed with such  an intention. [101 A-C]     6.2  In  the circumstances the  courts,  including  this Court,  do  not have any jurisdiction to pass any  order  in relation  to  a  proceeding for removal of a  Judge  of  the superior courts. [101 C]     7.   No opinion is expressed on the controversy  whether the  Motion lapsed or not on the dissolution of the  earlier House, as the issue is for the Lok Sabha to decide. [102 E]     8.   This Court cannot pass any order whether  permanent or  temporary on the prayer that the respondent No.  3,  the concerned  Judge,  should  not be allowed  to  exercise  his judicial powers. [102 F]     9.1  Although the powers of State have been  distributed by the Constitution amongst the three limbs, i.e. the Legis- lature,  the  Executive and the Judiciary, the  doctrine  of Separation  of Powers has not been strictly adhered  to  and there  is  some  overlapping of powers in  the  gray  areas. [80F-G] 24     Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 347 at p. 415, referred to.     9.2  Generally,  questions  involving  adjudication   of disputes are amenable to the jurisdiction of the courts, but there  are  exceptions, not only those covered  by  specific provisions of the Constitution in express terms, but  others enjoying the immunity by necessary implication arising  from established  jurisprudential  principles  involved  in   the Constitutional scheme. [81 C]     10.  It  is permissible to take into  consideration  the entire  historical background of the provisions of the  Con- stitution and the Act as aid to interpretation. [84 C]     Bengal Immunity Company v. The State of Bihar, [1955]  2 SCR  603 at 632 & 633; B. Prabhakar Rao v. State  of  Andhra Pradesh, [1985] Suppl 2 SCR 573, referred to.     Heydon’s case: 76 E.R. 637; Eastman Photographic Materi- al  Company  v. Comptroller General of Patents,  LR.  [1898] A.C. 571, referred to.

JUDGMENT: ORIGINAL  JURISDICTION:  Writ Petition (Civil)  No.  491  of 1991. (Under Article 32 of the Constitution of India)               WITH TRANSFER  PETITION (CIVIL) No, 278 of 1991.  (Under  Article 139-A(i) of the Constitution of India)               WITH WRIT PETITION (CIVIL) Nos. 541,542 & 560/91     G.  Ramaswamy,  Attorney  General,  Altar  Ahmad,  Addl. Solicitor General, Shanti Bhushan, Ram Jethmalani, P.P. Rao, Kapil Sibal, P.R.Krishnan, Ms. Indira Jaisingh, Ashok Desai, Hardev  Singh, P.S. Poti, Danial Latifi,  Rajinder  Sachhar, M.K.  Ramamurthy, R.K. Garg, S.K. Dholakia,  Santosh  Hegde, V.N. Ganpule, Tapas Ray, N.B. Shetye, Jayant Bhushan,  Mohan Rao, Prashant Bhushan, Ms. Kamini Jaiswal, A.K.  Srivastava, Manoj  Wad, Ms. Rashmi Kathpalia, Ms. Nina  Dikshit,  E.M.S. Anam,  Rajiv K. Garg, N.D. Garg, G.D. Sharma, Sudhir  Walia, A.M. Khanwilkar, Mrs. Anil Katiyar, Ms. A. Subhashini,  R.S. Suri,  M. Veerappa, K.R. Nambiar, Harish Uppal (appeared  in person) and P.H. Parekh for the appearing parties. The Judgment of the Court was delivered by

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   B.C. RAY, J. These writ petitions raise certain  consti- tutional  issues  of quite some importance  bearing  on  the construction of Articles 121 and 124 of the Constitution  of India and of the "The Judges 25 (Inquiry)  Act, 1968" even as they in the context  in  which they are brought, are somewhat unfortunate.     Notice  was given by 108 members of the 9th  Lok  Sabha, the term of which came to an end upon its dissolution, of  a Motion  for presenting an Address to the President  for  the removal  of Mr. Justice V.Ramaswami of this Court.  On  12th March, 1991, the motion was admitted by the then Speaker  of the  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. Chinappa Reddy,  a distinguished jurist in terms of Section 3(2) of The  Judges (Inquiry) Act, 1968.     The occasion for such controversy as is raised in  these proceedings is the refusal of the Union Government to act in aid of the decision of the Speaker and to decline 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 II Schedule to the Constitu- tion.  It is said that without such a notification  the  two sitting  Judges cannot take time off from theft  court-work. The  Union  Government  seeks to justify its  stand  on  its understanding  that both the motion given notice of  by  the 108  Members of the Lok Sabha for presenting an  Address  to the President for the removal of the Judge concerned as well as the decision of the Speaker of the 9th Lok Sabha to admit the  motion and constitute a Committee under the  provisions of the Judges (Inquiry) Act have lapsed with the dissolution of the 9th Lok Sabha.     Constitutional  issues  of some  importance,  therefore, arise  as to the constitutional and the legal  position  and status  of a Motion for the removal of a Judge under  a  law made  pursuant to Article 124(5) of the Constitution and  as to  whether  the  Doctrine of Lapse would apply  to  such  a Motion upon the dissolution of the Lok Sabha and whether, in view  of the contention that such motions for  removal,  im- peachment etc. of holders of high constitutional offices are in  their  very nature politically introduced,  debated  and decided  in the Houses of Parliament and not elsewhere,  the matters  arising out of or relating to a Motion for  removal of  a  Judge in either House of the Parliament  are  at  all justiciable before courts of law. It is also-urged that even if these issues have some degree of adjudicative disposition and involve some justiciable areas, the Court should decline to exercise jurisdiction as its decision and its writ  might become  infructous in view of the fact that in the  ultimate analysis, the final arbiter whether at all any Address is to be presented rests exclusively with the Houses of Parliament and which, are wholly outside the purview of the Courts. 26     2.   The foregoing serves to indicate broadly  the  com- plexities of the constitutional issues on which the Court is invited  to pronounce and, as in all constitutional  litiga- tion, the views inevitably tend to reflect a range of policy options  in constitutional adjudications and, in some  meas- ure, value judgments.     3.   Writ Petition No. 491 of 1991 is by a  body  called the "SubCommittee on Judicial Accountability" represented by its  convener, Sri Hardev Singh, a Senior Advocate  of  this Court. Petitioner-body claims to be a Sub-Committee  consti-

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tuted by an "All India Convention on Judicial  Accountabili- ty"  "to carry forward the task of implementing the  resolu- tions of the conventions". Writ Petition No. 541 of 1991  is by  the  Supreme Court Bar Association  represented  by  its Honorary  Secretary. The Bar Association seeks to  prosecute this petition "in the larger public interest and in particu- lar  in the interests of litigant public". The  two  prayers common  to both the petitions are, first, that the Union  of India  be  directed to take immediate steps  to  enable  the Inquiry Committee to discharge its functions under the  "The Judges  (inquiry) Act, 1968" and, secondly, that during  the pendency of the proceedings before the Committee the learned Judge  should be restrained from performing  judicial  func- tions and from exercising Judicial powers.     4.  Writ Petition No. 542 is by a certain Harish  Uppal. This writ petition is more in the nature of a counter to the second  prayer in the WP No. 541/1991 and WP  No.  491/1991. Petitioner,  Sri  Harish Uppal says that  till  the  Inquiry Committee  actually  finds the learned Judge guilty  of  the charges  there should be no interdict of his judicial  func- tions and that if such a finding is recorded then thereafter till  such  time as the Motion for the presentation  of  the Address  for  the removal of the Judge disposed  of  by  the Houses  of  Parliament-which petitioner says should  not  be delayed beyond 180 days --- the President may ask the  Judge concerned to recuse from judical functions.     In  Writ  Petition No. 560/1991 brought by  Shyam  Ratan Khandelwal, a practising Advocate, the constitutional valid- ity of the Judges (Inquiry) Act, 1968 is challenged as ultra vires Articles 100, 105, 118, 121 and 124(5) of the  Consti- tution of India. It also seeks a declaration that the Motion presented  by 108 Members of Parliament for the  removal  of the  Judge  has lapsed with the dissolution of the  9th  Lok Sabha. It also seeks quashing of the decision of the Speaker admitting  the Motion on the ground that an  opportunity  of being heard had been denied to the Judge before the  Speaker admitted the Motion and proceeded to constitute a Committee. On the question of the validity of The Judges (Inquiry) Act, 27 1968 the petitioner contends that the law properly construed vests the powers of admitting a Motion and of constituting a Committee under Section 3 in the Speaker in his capacity  as Speaker of the House and subject to the well known and  well settled principles of law. procedure and conventions of  the Houses  of Parliament and the statute does not  depart  from these  principles. On the contrary, the statute admits of  a construction which accords with the powers and privileges of the  House and that the Motion even at that stage of  admis- sion  would require to be debated by the House. It is  urged that if that be’ the construction, which the language of the statute  admits then there should be no vice of  unconstitu- tionality  in  it. But if the statute is construed  to  vest such  power exclusively in the Speaker, to the exclusion  of the House, the statute, on such constitution would be uncon- stitutional  as violative of Articles 100 (1),  105,118  and 121 of the Constitution.     4.  Transfer Petition No. 268/1991 is for the withdrawal by  this Court to itself from the High Court of  Delhi,  the Writ Petition (Civil) No. 1061/1991 in the Delhi High  Court where reliefs similar to those prayed for by Sri  Khandelwal in WP (Civil) No. 560/1991 are sought. The prayer for trans- fer  has not yet been granted; only the further  proceedings in  the High Court are stayed. But full-dress  arguments  in all  these matters have been heard. It is  appropriate  that this  writ  petition should also be formally  withdrawn  and

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finally  disposed of along with the present batch of  cases. All that is necessary is to make a formal order  withdrawing WP (Civil) No. 1061/1991 from the Delhi High Court, which we hereby do.     5.   Certain allegations of financial improprieties  and irregularities were made against Justice V. Ramaswami,  when he  was  the  Chief Justice of the High Court  of  Punjab  & Haryana. There were certain audit reports concerning certain items  of  purchases and other expenditure. The  then  Chief Justice of India, Justice Sabyasachi Mukharji, took note  of the reports in this behalf and of representations  submitted to  him  in  this behalf and advised  Justice  Ramaswami  to abstain  from  discharging judicial  functions  until  those allegations  were cleared. Thereafter, a Committee of  three Judges  was constituted by the then Chief Justice of  India, to  look  into the matter and to advise him whether  on  the facts Justice Ramaswami might be embarrassed in  discharging judicial  functions as a Judge of this Court. The  Committee tendered  its  advice to the Chief Justice.  It  noted  that Justice Ramaswami had declined to acknowledge the  jurisdic- tion  of any Committee to sit in judgment over his  conduct. The Committee, accordingly, abstained from an inquiry on the charges  but.  on  an evaluation of the  matter  before  it, expressed the view that as long as the charges of 28 improper  conduct involving moral turpitude were not  estab- lished  in the various enquiries then pending the  operation of the constitutional warrant appointing him a Judge of  the Court could not be interdicted.     Thereafter,  in February, 1991, 108 Members of  the  Lok Sabha presented a Motion to the Speaker of the 9th Lok Sabha for Address to the President for the removal of the  learned Judge under Article 124(4) of the Constitution read with the provisions  of the Judges (inquiry) Act, 1968. On  12.3.1991 the  Speaker of the Lok Sabha in purported exercise  of  his powers under Section 3 of the said Act, admitted the  Motion and constituted a Committee as aforesaid to investigate  the grounds on which the removal was prayed for.     Soon  after  the decision of the Speaker  to  admit  the Motion and constitute a Committee to investigate the charges was made, the term of the Ninth Lok Sabha came to  premature end  upon  its  dissolution. The  petitioners  question  the legality  of  the Speaker’s order and assert  that,  at  all events,  the Motion had lapsed with the dissolution  of  the House.  This contention is supported by the Union of  India. They  say  that the effect of dissolution of the  Ninth  Lok Sabha  is to "pass a sponge across the Parliamentary  slate" and all pending motions lapse. The motion for removal, it is urged, is no exception.     6.  ’We have heard Sri Shanti Bhushan, Sri Ram Jethmala- ni,  Sri  P.P. Rao, Sri R.K. Garg and Ms. Indira  Jaising  - learned  senior  counsel in support of the prayers  in  writ petitions Nos. 491 and 541 of 1991 filed by the  Sub-Commit- tee  on  Judicial Accountability and the Supreme  Court  Bar Association respectively; Sri G. Ramaswamy, learned Attorney General  for  the Union of India; Sri Kapil  Sibal  for  the petitioners  in writ petition No. 560/91 and transfer  peti- tion  No. 278/91. Sri Harish Uppal, petitioner in-person  in writ petition No. 542/91 has filed his written submissions.     The arguments of the case covered a wide  constitutional scheme  relating to the removal of members of  the  superior judiciary in India and tO the problems of justiciability  of disputes arising therefrom. We shall refer to the  arguments when we assess the merits of these contentions.     7.   The contentions urged at the hearing in support  of

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the  petitions which seek enforcement of Speaker’s  decision as well as those urged in support of the petitions which say that the Motion has lapsed can be summaried thus: 29 Contention A:               The  motion for removal of the Judge moved  by               108  Members  of  Parliament as  well  as  the               purported  decision  of the Speaker  to  admit               that  motion and to constitute a committee  to               investigate into the grounds on which  removal               is sought have lapsed upon the dissolution  of               the 9th Lok Sabha. The general rule is that no               House  of  Parliament  can seek  to  bind  its               successor. All pending business at the time of               dissolution  of  House lapses.  A  motion  for               removal of a judge is just another motion  and               perishes  with the expiry of the term  or  the               earlier dissolution of the House.               The question whether the motion for the remov-               al of the judge has lapsed or not is a  matter               pertaining  to the conduct of the business  of               the  House of which the House is the sole  and               exclusive  judge. No aspect of the  matter  is               justiciable before Court. Contention B:               The  constitutional  process of removal  of  a               Judge, both in its substantive and  procedural               aspects,  is  a political process  within  the               exclusive domain of the Houses of  Parliament.               The  conduct of the Speaker in regulating  the               procedure and business of the House shall  not               be  subject to the jurisdiction of any  Court.               The  Speaker of the Lok Sabha in the  exercise               of his powers under the Judges (Inquiry)  Act,               1%8,  acts  in  an area  outside  the  courts’               jurisdiction.  There is nothing in the  Judges               (Inquiry)  Act, 1968 which detracts from  this               doctrine of lapse. On the contrary, the provi-               sions  of the ’Act’ are consistent  with  this               Constitutional position. Contention C:               Article  124(5) pursuant to which  the  Judges               (Inquiry) Act, 1968, is a mere enabling provi-               sion.  Prior  ’proof of misconduct  is  not  a               condition  precedent  before  the  bar   under               Article  121  against the  discussion  of  the               conduct of the Judge is lifted. Contention D:               The  action  of the Speaker in  admitting  the               notice  of  motion without  reference  to  the               House and constituting a committee for  inves-               tigation  without the support of the  decision               of the               30               House is ultra vires Articles 100(1), 105, 121               and  the rules made under Article 118  of  the               Constitution.               The  provisions of the Judges  (inquiry)  Act;               1968 can be read consistently with the Consti-               tutional Scheme under the aforesaid  Articles.               But  if the provisions of the Act are so  con-               strued  as to enable the Speaker  to  exercise               and perform those powers and functions without               reference  to and independently of the  House,               then the provisions of the Act would be uncon-

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             stitutional.               Contention E.               The  decision  of  the Speaker  to  admit  the               motion  and  to  constitute  a  committee  for               investigation  is void for failure  to  comply               with the rules of natural justice as no oppor-               tunity, admittedly, was afforded to the  Judge               of being heard before the decision was taken.               Contention F.’               The  process of removal by means of  a  motion               for  address to the President is  a  political               remedy. But the fundamental right to move  the               Supreme  Court for enforcement of  fundamental               rights  take  within its sweep  the  right  to               access  to  a court comprising  of  Judges  of               sterling and unsullied reputation and integri-               ty which is enforceable. This judicial  remedy               is  independent of the  constitutional  remedy               and that the court has jurisdiction to  decide               as to its own proper constitution. In exercise               of  this  jurisdiction it should  examine  the               grounds  of the alleged misbehaviour  and  re-               strain the Judge from judicial functioning.               Contention G.’               The  Speaker’s  decision is vitiated  by  mala               fides and oblique and collateral motives.               Contention H.’               The  Supreme  Court Bar  Association  and  the               Sub-Committee on Judicial Accountability - the               petitioners  in Writ Petition No. 491 of  1991               and Writ Petition No. 541 of 1991, respective-               ly, do not have the requisite standing to  sue               and  the writ petitions are, accordingly,  not               maintainable at their instance.               31               Contention L’               At all events, even if the Speaker is held  to               be  a  statutory authority  acting  under  the               Statute and not as part of the proceedings  or               business  of the Lok Sabha and is amenable  to               the  jurisdiction of the Court,  any  judgment               rendered  and writ issued by this  Court  have               the  prospect of being infructuous in view  of               the  undisputed constitutional position  that,               in  the  ultimate analysis,  the  decision  to               adopt  or turn down the motion is  exclusively               within  the power of the House and  the  Court               would have no jurisdiction over that area.     The  Court  would, therefore, decline  to  exercise  its jurisdiction on grounds of infructuousness.     8.  Before we discuss the merits of the arguments it  is necessary to take a conspectus of the constitutional  provi- sions  concerning  the judiciary  and  its.independence.  hi interpreting the constitutional provisions in this area  the court  should  adopt a construction  which  strengthens  the foundational features and the basic structure of the Consti- tution.  Rule of law is a basic feature of the  Constitution which  permeates the whole of the Constitutional fabric  and is  an integral part of the constitutional structure.  Inde- pendence of the judiciary is an essential attribute of  Rule of law. Articles 124(2) and 217(1) require, in the matter of appointments  of  Judges, consultation with the  Chief  Jus- tices.  These  provisions also ensure fixity  of  tenure  of office of the Judge. The Constitution protects the  salaries of  Judges.  Article 121 provides that no  discussion  shall

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take place in Parliament with respect to the conduct of  any Judge  of the Supreme Court or of a High Court in  the  dis- charge of his duties except upon a motion for presenting  an address  to  the President praying for the  removal  of  the Judge  as hereinafter provided. Articles  124(4) and  124(5) afford  protection  against premature determination  of  the tenure.  Article i 24(4) says "a Judge of the Supreme  Court shall  not  be  removed from his  office  except"  etc.  The grounds for removal are again limited to proved misbehaviour and  incapacity. It is upon a purposive and harmonious  con- struction and exposition of these provisions that the issues raised in these petitions are to be resolved.     9.  In construing the Constitutional provisions the  law and  procedure  for  removal of Judges  in  other  countries afford  a  background and a comparative view.  The  solution must,  of  course, be found within  our  own  Constitutional Scheme. But a comparative idea affords a proper  perspective for  the understanding and interpretation of  the  Constitu- tional Scheme. 32     10.  In  England a Judge of the superior courts  can  be removed  only  on  presentation of an address  by  both  the Houses of Parliament to the Crown. Proceedings may be initi- ated  by  a petition to either House of  Parliament  for  an address  to the Crown or by a resolution for an  address  to the Crown to appoint a committee of inquiry into the conduct of  the person designated, though preferably they should  be commenced in the House of Commons. Sometimes [as in Barring- tons Case (1830)], a Commission of Inquiry is appointed  and the  matter is considered in the light of the report of  the said Commission. The motion for removal is considered by the entire  House. In case any enquiry is to be  conducted  into the allegations, it is either referred to a Select Committee of the House or to the Committee of the whole House Opportu- nity is given to the Judge whose conduct is impugned to make defence on public inquiry.     The  report of the Committee and its recommendation  are placed  before the House where the matter  is  debated.(See: Halsbury’s Laws of England, 4th Ed. Vol. p. 1108). 11. This process has been subjected to following criticism -                 (i)  legislative  removal  is  coloured   by               political partisanship inasmuch as the initia-               tion  of the process as well as  the  ultimate               result may be dictated by political considera-               tions and process of fact-finding and deliber-               ations also suffer from party spirit.                 (ii) the government has considerable control               not  only on the ultimate result of  the  pro-               ceedings but also on parliamentary time  which               enables them to prevent motions for an address               from being adopted if it suits them.                 (iii)  the  legislative  procedure  is   not               adequate for adjudicative fact finding; and                 (iv)  since Parliament is the master of  its               own  procedure,  the procedures and  rules  of               evidence  appropriate to judicial  proceedings               which  would seem to be required in a case  of               judicial removal are unlikely to be allowed in               Parliament.  (See: Shetreet - Judges on  Trial               (1976) p. 405-407)     12.  The Justice Sub-Committee on the Judiciary  consid- ered  the question whether the existing process for  removal by  address of the Houses should be substituted for or  sup- plemented by a new mechanism designed to meet changing needs and  conditions.  The  Sub-Committee, in  its  1972  Report,

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answered  the said question in the affirmative and has  pro- posed a new procedure for removal of judges. The Sub-Commit- tee  has recommended the establishment of an adhoc  judicial commission to be ap- 33 pointed  by  the  Lord Chancellor, if he  decides  that  the question  of  removing a judge is to  be  investigated.  The Commission  should include a majority of, and in  any  event not  less  than three, persons who hold or  have  held  high judicial  office. Members of Parliament or persons who  hold or  have held any political appointment would  be  excluded. Upon  completing  its inquiry the ad  hoc  Commission  shall report  the  facts  and recommend whether  the  question  of removal  of a judge should be referred to the Judicial  Com- mittee of the Privy Council. If the Commission so recommend- ed,  the Privy Council would consider the matter and  if  it concluded  that  the judge should be removed,  it  would  so advise  Her  Majesty.  [see:  Shetreet  ’Judges  on  Trial’, (1976); pp. 404-405].     Dr. Shetreet has suggested a via-media and has  favoured the establishment of a Judicial Commission for removal  (but not  for discipline short of removal) along the  lines  sug- gested by the Sub-Committee but has expressed the view  that the  existing process of address should also  be  preserved. [See:  Shetreet ’Judges an Trial’, (1976); p. 409].  Similar view  has been expressed by Margaret Brazier.  (See:  Rodney Brazier ’Constitutional Texts’ (1990) pp.606-607).     13.  In Canada, under section 99(1) of the  Constitution Act  of 1867, the judges of the superior courts hold  office during  good behaviour, and are removable by  the  Governor- General  on address of the Senate and House of  Commons.  On petition  for removal submitted in 1868 and 1874 the  matter was referred to a Select Committee of the House. In a  third case in 1874 the judge died before any action could be taken on motion for appointment of a Select Committee. Recently in 1966-67, a motion for removal of Mr. Justice Leo Landreville of  the Supreme Court of Ontario was moved and in that  con- nection a Royal Commission consisting of Mr. Justice Ivan C. Rand,  a  retired judge of the Supreme Court of  Canada  was appointed  under the Inquiries Act R. S. C. 1952 C.  154  to conduct an enquiry. After considering the report of the said Commission,  a  Joint Committee of  the  Houses  recommended removal but the judge resigned while Parliament was  prepar- ing for his removal by joint address. Thereafter, Judges Act was  enacted in 1971 whereby Canadian Judicial  Council  has been  created. The functions of the said Council as set  out in s. 39(2) include making the enquiries and the  investiga- tion  of complaints or allegations described in s. 40.  Sec- tion 40 provides that the council may conduct an enquiry  to determine  whether a judge of superior, district  or  county court should be removed from office and it may recommend  to the  Minister  of Justice of Canada that a Judge  should  be removed from office. The grounds on which such a recommenda- tion can be made are set out in s. 41(2) of the Act and they are: (a) age or infirmity, Co) having been 34 guilty of misconduct, (c) having failed in the due execution of his office, or (d) having been placed, by his conduct  or otherwise, in a position incompatible with the due execution of  his office. (Gall ’The Canadian Legal System’ ( 1983  ); pp. 184-186).     In  1’982  the matter of Mr. Justice  Thomas  Berger,  a Judge of the Supreme Court of British Columbia, was investi- gated  by the Canadian Judicial Council prompted by  certain remarks  made by the judge. The Council concluded  that  the

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public expression of political views in the nature of  those made  by Mr. Justice Berger constituted  an  "indiscretion", but that they were not a basis for a recommendation that  he be  removed from office and on the basis of the said  recom- mendation,  no further action was taken though  Mr.  Justice Berger  tendered  his resignation as a judge  a  few  months later.  (See:  Gall.’ The Canadian Legal System,  (1983)  p. 189)     14. Under section 72(ii) of the Commonwealth of  Austra- lia  Constitution Act, 1900, the justices of the High  Court and of the other courts created by the Parliament cannot  be removed  except  by the  GovernorGeneral-in-Council,  on  an address  from  both  Houses of the Parliament  in  the  same session  praying  for such removal on the ground  of  proved misbehavior or incapacity. Similar provisions are  contained in the Constitutions of the States with regard to removal of Judges of State Courts.     Proceedings  were initiated for removal of  Mr.  Justice Murphy of the High Court of Australia in 1984 under  section 72(ii) of the Commonwealth of Australia Constitution Act. In connection with those proceedings at first a select  Commit- tee  of the Senate was appointed to enquire and report  into the  matter. It consisted of six senators drawn  from  three political parties. The Committee by majority decision (3: 2, one  undecided) found no conduct amounting  to  misbehaviour under  section  72(ii). In view of the split vote  a  second Committee  of  four senators from the same  three  political parties  was established and it was assisted by two  retired judges - one from the Supreme Court of Western Australia and the  other  from  Supreme Court of  the  Australian  Capital Territory  and the said Committee recorded its  finding  but the  judge did not appear before either of  the  committees. The  judge was also prosecuted before the  Central  Criminal Court of New South Wales and was found guilty of an  attempt to  pervert the course of justice but the said  verdict  was set  aside by the Court of Criminal Appeal. Fresh trial  was held where under the judge was found not guilty. Thereafter, an  ad hoc legislation, namely, Parliamentary Commission  of Inquiry Act, 1986 was enacted by the Commonwealth Parliament and a Commission consisting of three retired judges  respec- tively  of Supreme Court of Victoria, Supreme Court of  Aus- tralia Capital Territory 35 and  the Federal Court and Supreme Court of South  Australia was  constituted  to  investigate into  the  allegations  of misbehaviour.  Before  the said commission  could  give  its report,  the  judge became gravely ill and the Act  was  re- pealed  [Lane’s Commentary on the  Australian  Constitution, (1986) p. 373].     15.  In  one other case, proceedings  for  removal  were initiated against Mr. Justice Vasta of the Supreme Court  of Queensland and for that purpose, the Queensland  Legislature enacted  the  Parliamentary (Judges) Commission  of  Inquiry Act,  1988 whereby a commission comprised of  three  retired judges respectively of the High Court of Australia,  Supreme Court  of Victoria and the Supreme Court of New South  Wales was constituted.     16. In Australia, there has been criticism of the exist- ing  procedure  with  regard to removal of  judges  both  by judges  as well as by lawyers. Mr. Justice L.J. King,  Chief Justice  of  the Supreme Court of South Australia,  has  ob- served:               "The concept of removal by an address of  both               Houses of Parliament is itself the subject  of               a  good deal of criticism.  Curiously,  common

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             criticism  which are made  are  contradictory.               One  criticism is that the necessity  for  the               involvement  of the legislature  ensures  that               the  procedure will not be used and  that  the               judges  therefore  have a  practical  immunity               from  removal. Removal by this means  is  cer-               tainly  extremely tare. That may be,  however,               because in the countries in which this  proce-               dure  prevails,  conditions are  such  that  a               judge  who commits a serious act  of  judicial               misconduct  would certainly resign. That  con-               sideration, together with the fact that stand-               ards  of judicial conduct are  generally  very               high  in those countries, renders  removal  by               the legislature a rarity. The opposite  criti-               cism, however, is that there is no established               procedure  for  the  trial of  a  judge  whose               removal  by the legislature is sought.  It  is               assumed  that  the  legislature  would  itself               institute  some form of inquiry at  which  the               judge would be able to defend himself  against               the  accusations, but that would be  a  matter               for  the legislature in each case.  There  are               some  who fear that a parliamentary  majority,               encouraged by inflamed public feeling about an               unpopular  judicial decision, might  some  day               act to remove a judge, without due process.               It is at least questionable whether the system               of  removal  by an address of both  Houses  of               Parliament accords to a judge the               30               degree  of security which is required  by  the               concept  of judicial independence.               [ ’Minimum Standards of Judicial Independence’               1984 (58) ALl 340, at p. 345]     Similarly,  Mr.  Justice M.H. Mclelland of  the  Supreme Court, of New South Wales has expressed the view:               "In  lieu  of measures of  the  kinds  already               discussed,  some  permanent,  and   preferably               Australia-wide,  machinery should be  provided               by legislation for the purpose of establishing               an  effective procedure for the  determination               by a judicial tribunal                   -  of  the existence  of  misbehaviour  or               incapacity  which  could  warrant  a   judge’s               removal  from office. The design of  that  ma-               chinery should be such as to produce as little               damage to judicial independence, public confi-               dence in the judicial system, and the authori-               ty  of the courts, as is consistent  with  its               effective operation. It should also be such as               to ensure to a judge both procedural  fairness               and  protection  from public  vilification  or               embarrassment pending the making of the deter-               mination". (Disciplining  Australian  Judges, (1896) 64 ALJ 688  at  p. 401)     Mr. Justice Mclelland has also suggested that the tribu- nal  should be subject to the supervisory  jurisdiction  of, and  an  appeal should lie from the tribunal  to,  the  High Court of Australia. In this context, he has stated:               "Furthermore,   the  protection  of   judicial               tenure  and  independence  which  the  Act  of               Settlement provisions were intended to effect,               has  in  the intervening period lost  a  great

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             deal of its strength. In 1701, the Crown,  the               House  of Lords and the House of Commons  were               three  powerful  but  relatively   independent               entities.  It  was necessary for  a  judge  to               incur the displeasure of all three concurrent-               ly to be at risk of removal under the  parlia-               mentary  address  procedure.  The   subsequent               development  of the party system  and  cabinet               government  (especially with modern  ideas  of               strict party discipline) has radically altered               the  position. In modern times, the  executive               government and the lower house (and frequently               the  upper  house,  where there  is  one)  are               effectively  under  the control  of  a  single               individual  or cohesive group, so that  now  a               judge  may  be at risk of  removal  under  the               parliamentary address procedure if               37               he  or she were to incur the sole  displeasure               of that individual or group."               (Disciplining Australian Judges, (1990) 64 ALJ               3 8 8 at p. 402-3)     Sir  Maurice  Byers,  former Solicitor  General  of  the Commonwealth has also spoken in the same vein:               "A  federal system involves a tension  between               the  High  Court and the  Parliament  and  the               executive.  Recent  years have seen  this  in-               crease because interpretations of the  Consti-               tution  have become party dogma.  The  Court’s               constitutional  decisions are seen by many  of               the uninformed and quite a few of the informed               as  bearing  upon party  political  questions.               When, as in the case of Mr. Justice Murphy and               to a much less degree Sir Garfield Barwick,  a               former political figure, hands down a judgment               he attracts the animus and often the abuse  of               some in Parliament. Section 72 of the  Consti-               tution leaves him exposed to the attack of his               opponents  and the often doubtful  support  of               his  former  friends. Whether  Parliament  may               itself  decide  the judicial question  of  his               fitness for office or "proved misbehaviour  or               incapacity" is at the least doubtful. But  the               Court should not be exposed to this hazard,  A               Commission of Judges whose membership  rotates               is  called for." (From the other side  of  the               Bar  Table: An Advocates’ view of the  Judici-               ary,  (1987) 10 University of New South  Wales               Law Journal 179 at p. 185).     A Constitutional Commission was set up in Australia  for suggesting  reforms  in the Commonwealth  Constitution.  The said  Commission  has recommended that provision  should  be made  by amendment to the Commonwealth Constitution for  (a) extending  the security of tenure provided by section 72  to all  judges  in Australia, and (b) establishing  a  national judicial  tribunal to determine whether facts found by  that tribunal  are capable of amounting to misbehaviour or  inca- pacity warranting removal of a judge from office.     (Mclelland ’Disciplining Australian Judges ’, (1990)  64 ALJ 388, at p. 403) 17. In the United States, the removal of a judge of the U.S. Supreme or a Federal judge is governed by the provisions  of the U.S. Constitution wherein Article 11(4) provides for the removal from office of the President, Vice-President and all civil officers of the United States on impeachment for,  and

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conviction of, treason, bribery or other high crimes 38 and  misdemeanours.  Impeachment may be voted  by  a  simple majority  of  the members of the House  of  Representatives, there being a quorum on the floor and trial is then held  in the Senate, which may convict by a vote of two-thirds of the members  of  the Senate present and voting,  there  being  a quorum.  With  regard  to state judiciary,  the  process  of removal is governed by the State Constitutions. Majority  of the  States follow the federal pattern an4 provide  for  im- peachment  as  the normal process of  removal  of  appointed judges. In some States, provision is made for removal by  an address of the Governor to both Houses of legislature or  by a  joint resolution of the legislature. In some States,  the removal power is vested in the State Supreme Courts while in some  states,  special courts are provided to  hear  removal charges. In the State of New York, the Court is known as the Court on the judiciary. (See Henry J. Abraham: The  Judicial Process, 3rd Ed. p.45).     For judicial administration at the national level, there is  Judicial Conference of the United States which  consists of the Chief Justices of the United States, the chief judges of each of the eleven numbered circuits and of the  District of  Columbia  and federal circuits but also, since  1957,  a district  judge  representative from each circuit  with  the exception of the federal circuit, which lacks a  trial-court tier. By an Act of the Congress passed in 1932 (incorporated in  Title  28 of the U.S. Code) the Judicial  Conference  is charged with the duty to make a comprehensive survey of  the condition  of business in the courts; to prepare  plans  for assignment of judge,’ to or from circuits or districts where necessary; and to submit suggestions and recommendations  to the  various  courts  to promote  uniformity  of  management procedures  and the expeditious conduct of  court  business. The work of the Judicial Conference is performed in  special committees  which include the special committee on  judicial ethics. Another Act of Congress passed in 1939 makes  provi- sion  for  a judicial council for each circuit  composed  of circuit  judges of the circuit who is empowered to make  all necessary orders for the effective and expeditious  adminis- tration  of the business of the courts within  its  circuit. The  mandate of the Judicial Councils embraces the  business of the judiciary in its institutional sense  (administration of  justice), such as avoiding of loss of public esteem  and confidence in respect to the court system, from the  actions of  a  judge  or other person attached to  the  courts.  The Judicial  Councils  have exercised the power  of  review  of allegations  of misconduct on the part of  court  personnel, officers  and  judges. In view of the  increased  number  of judges,  who can be removed only by the process of  impeach- ment, Congress has enacted the Judicial Councils Reform  and Judicial  Conduct  and Disability Act of  1980  whereby  the Judicial Councils have been explicitly empowered to  receive complaints about judicial 39 conduct opaquely described as "prejudicial to the  effective and  expeditious  administration  of  the  business  of  the courts,  or  alleging  that such a Judge  or  magistrate  is unable  to discharge all the duties of office by  reason  of mental  or physical disability." It prescribes an  elaborate judicilised procedure for processing such complaints  within the  administrative system of the councils and the  Judicial Conference.  Should  a Council determine  that  the  conduct constitutes  grounds for impeachment the case may be  certi- fied  to the Judicial Conference of the United States  which

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may  take  appropriate action and if impeachment  is  deemed warranted,  the  Conference  is empowered  to  transmit  the record  and  its determination to the House  of  Representa- tives.     In  so  far as the States are concerned, all  the  fifty States  have  central Institutions  for  disciplining  their judges  and  in each a variously constituted  commission  is organised in either a single tier or in many tiers depending on  the  perceived desirability of  separating  fact-finding from  judgment recommendation tasks. Commission  recommenda- tions  are  transmitted to the State Supreme Court  for  its authoritative  imprimatur, except in states where  they  are received by legislatures that retain judicial removal power. (See Robert J.Janosik Encyclopaedia of the American Judicial System, Vol. II pp.575 to 578).     18. This study of the practice prevailing in the  above- mentioned  countries reveals that in Canada,  Australia  and the United States, the process of removal of a judge  incor- porates an investigation and inquiry into the allegations of misconduct  or  incapacity  against a judge  by  a  judicial agency  before  the  institution of the  formal  process  of removal  in the legislature. England is the  only  exception where  the  entire process is in Parliament but  there  also views  are being expressed that it should be replaced  by  a judicial  process  of investigation by a  judicial  tribunal before  the matter is taken up by the Houses of  Parliament. This is also the trend of the recommendations in the resolu- tions  adopted  by the United Nations General  Assembly  and international conferences of organisations of lawyers.     19.  International Bar Association at its 19th  Biennial Conference held at New Delhi in October 1982 adopted Minimum Standards of Judicial Independence. Paras 27 to 32  relating to ’Judicial Removal and Discipline’ are as under:               "27.The proceedings for discipline and removal               of judges should ensure fairness to the judge,               and adequate opportunity for hearing.               40               28.  The  procedure for discipline  should  be               held in camera. The judge may however  request               that the heating be held in public, subject to               final and reasoned disposition of this request               by  the  Disciplinary Tribunal.  Judgments  in               disciplinary   proceedings  whether  held   in               camera or in public, may be published.               29.  (a)  The grounds for  removal  of  judges               should  be fixed by law and shall  be  clearly               defined.               (b)  All  disciplinary action shall  be  based               upon standards of judicial conduct promulgated               by law or in established rules of court.               30.  A judge shall not be subject  to  removal               unless, by of a criminal act or through  gross               or  repeated  neglect or  physical  or  mental               incapacity,  he has shown  himself  manifestly               unfit to hold the position of judge.               31.  In systems where the power to  discipline               and remove judges is vested in an  institution               other  than the Legislature, the tribunal  for               discipline  and  removal of  judges  shall  be               permanent  and  be composed  predominantly  of               members of the Judiciary.               32.  The  head of the court  may  legitimately               have  supervisory powers to control judges  on               administrative matters."     20.  The First World Conference on the  Independence  of

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Justice held at Montreal on June 10, 1983 adopted a  UniVer- sal  Declaration on the Independence of Justice. It  relates to  international  judges as well as  national  judges.  The following  paragraphs deal with ’Discipline and Removal’  in relation to national judges:               "2.32  A  complaint against a judge  shall  be               processed  expeditiously and fairly  under  an               appropriate practice, and the judge shall have               the opportunity to comment on the complaint at               its  initial  stage. The  examination  of  the               complaint  at its initial stage shall be  kept               confidential,  unless otherwise  requested  by               the judge.               2.33 (a) The proceedings for judicial  removal               or discipline, when such are initiated,  shall               be held before a court or a board predominant-               ly  composed of members of the  judiciary  and               selected by the judiciary.               (b)  However,  the  power of  removal  may  be               vested  in the Legislature by  impeachment  or               joint  address, preferably upon a  recommenda-               tion  of  a court or board as referred  to  in               2.33(a).               41               [Explanatory  Note:  In  countries  where  the               legal  profession plays an indispensable  role               in  maintaining the rule of law  and  judicial               independence,  it is recommended that  members               of  the  legal profession participate  in  the               selection  of  the  members of  the  court  or               board, and be included as members thereof.]               2.34  All disciplinary action shall  be  based               upon  established standards of  judicial  con-               duct.               2.35 The proceedings for discipline of  judges               shall  ensure  fairness to the judge  and  the               opportunity of a full hearing.               2.36 With the exception of proceedings  before               the  Legislature, the proceedings  for  disci-               pline and removal shall be held in camera. The               judge  may, however, request that the  hearing               be  held  in public, subject to  a  final  and               reasoned  disposition of this request  by  the               Disciplinary Tribunal. Judgments in  discipli-               nary proceedings, whether held in camera or in               public, may be published.               2.37 With the exception of proceedings  before               the  Legislature or in connection  with  them,               the decision of a Disciplinary Tribunal  shall               be subject to appeal to a court.               2.38  A judge shall not be subject to  removal               except  on  proved grounds  of  incapacity  or               misbehaviour, rendering him unfit to  continue               in office.               2.39  In the event that a court  is  abolished               judges  serving  in this court  shall  not  be               affected, except for their transfer to another               court of the same status."     21.  The Seventh United Nations Congress on the  Preven- tion  of Crime and the Treatment of Offenders held at  Milan from August 26 to September 6, 1985 adopted the Basic  Prin- ciples  on the Independence of the Judiciary. Paragraphs  17 to 20 dealing with ’Discipline, Suspension and Removal’  are as under:               "17.A charge or complaint made against a judge

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             in his/her judicial and professional  capacity               shall  be processed expeditiously  and  fairly               under  an  appropriate  procedure,  The  judge               shall  have the right to a fair  heating.  The               examination of the matter at its initial stage               shall  be kept confidential, unless  otherwise               requested by the judge.               18.  Judges shall be subject to suspension  or               removal  only  for reasons  of  incapacity  or               behaviour that renders them unfit to               42               discharge their duties.               19.  All disciplinary, suspension  or  removal               proceedings shall be determined in  accordance               with  established standards of  judicial  con-               duct.               20.  Decisions in disciplinary, suspension  or               removal  proceedings should be subject  to  an               independent  review.  This principle  may  not               apply  to the decisions of the  highest  court               and those of the legislature in impeachment or               similar proceedings."     The Congress Documents were endorsed by the U.N. General Assembly  in  its Resolution 40/32 on November 9,  1985  and Resolution  40/ 146 on December 13, 1985. Resolution  40/146 dated December 13, 1985 of the General Assembly specifically welcomed  the  Basic Principles on the Independence  of  the Judiciary  and  invited Government "to respect them  and  to take them into account within the framework of their nation- al legislation and practice" (para 2).     22. Unlike the judges of the Superior courts in England, the  judges  in the colonies did not enjoy the  security  of tenure  as guaranteed under the Act of Settlement, 1700  and they held office at the pleasure of the Crown. (See: Terrell v. Secretary of State for the Colonies and Another, 1953(2), 482).  The  position  was not different in  India  till  the enactment of Government of India Act, 1935. In Clause (b) of the proviso to sub-Section 2 of Section 200 of the said  Act which  related to judges of the Federal Court, it  was  pre- scribed  that  "a judge may be removed from  his  office  by order of the Governor-General on the ground of  misbehaviour or  of infirmity of body or mind, if the Judicial  Committee of  the  Privy  Council, on reference being  made  to  them, report  that  the judge ought on any such ground to  be  re- moved".  Similar provisions were made with regard to  judges of the High Court in Section 220. It would thus appear  that prior to the coming into force of the Constitution of India, it was necessary to have a determination by a judicial  body about  the alleged grounds of misbehaviour or  infirmity  of mind  and body before a judge of the Federal Court  or  High Court could be removed. Does the Constitution seek to  alter this  position  in a way, as to  exclude  investigation  and proof  of misbehaviour or incapacity by a judicial body  and to rest the power of removal including the investigation and proof of misbehaviour or incapacity in Parliament alone.     23. Basically, the process of removal or impeachment  of a  judge  is a political process. A learned author  in  "The Impeachment of the Federal 43 Judiciary:’ [Wrisley Brown Harward Law Review 1912-1913  684 at page 698) says:               "....   Thus an impeachment in  this  country,               though judicial in external form and ceremony.               is political in spirit. It is directed against               a political offence. It culminates in a polit-

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             ical judgment. It imposes a political  forfei-               ture. In every sense, say that of  administra-               tion,  it is a political remedy, for the  sup-               pression  of  a political  evil,  with  wholly               political consequences.               This results in no confusion of the  political               and the judicial powers. The line of  demarca-               tion  is clearly discernible even through  the               labyrinth of formal non-essentials under which               ingenious counsel in various cases have sought               to bury it. The judgment of the High Court  of               Parliament  upon conviction of an  impeachment               automatically works a forfeiture of  political               capacity; but this is simply an effect of  the               judgment,  which is to be  distinguished  from               the judgment itself..."                   Mauro Cappelletti in ’The Judicial Process               in  Comparative Perspective’[Clarendon  Press-               Oxford 1989 at page 731 says:               "Two main features of this accountability type               can  be identified; first, the fact  that  ac-               count  has to be given to ’political’  bodies,               ultimately  to  the  legislative  and/or   the               executive branches by means of essentially’po-               litical’, non-judicial processes; second,  and               perhaps even more characteristically, the fact               that  account  has  to be given  not,  or  not               primarily, for ’legal’ violations, but  rather               for behaviour (and this might include private,               out-of-office behaviour) which is evaluated on               the basis of ’political’ criteria.               Perhaps  the  best illustration  of  political               accountability can be found in the systems  of               the  common law tradition. In England,  judges               (like  any other officials) can  be  impeached               ’before the House of Lords, at the suit of the               House of Commons’, although this practice  has               fallen into desuetude; moreover, higher  court               judges  can  be ’removed from  office  by  the               Crown  on an address presented to Her  Majesty               by both Houses of Parliament’. The idea behind               this  ’address’ procedure is that  judges  are               appointed ’during good behaviour’, hence, they               can  be removed upon breach of the  condition.               Misbehaviour includes such situations as  ’the               case of conviction upon an indictment for  any               infamous offence of such a nature as to render               the               44               person unfit to exercise the office’, but also               ’improper exercise of the functions appertain-               ing  to  the  office,  or  non-attendance,  or               neglect of or refusal to perform the duties of               the  office’.  Of course the decision  of  the               Houses and the Crown can only be an essential-               ly  political  one,  not  a  purely  juridical               decision, even though we are informed that the               removal  procedure is subject to  some  extent               ’to the rules of natural justice’..."     24.  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

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intention to exclude determination by a judicial process  of the correctness of the allegations of misbehaviour or  inca- pacity on a more careful examination this is not the correct conclusion.  In the submissions of the learned  counsel  who contend  against the manifestation of an intention to  bring in  a  judicial  element, reliance has been  placed  on  the proceedings of the Constituent Assembly dated July 29,  1947 relating to adoption of Clause 18 of the report of the Union Constitution  Committee relating to the Supreme Court.  Shri Alladi Krishnaswami Ayyar had moved the said clause  subject to  modifications  and conditions in the said  clause  which related  to  appointment and removal of  judges  of  Supreme Court. It was provided that "a judge of the Supreme Court of India  shall  not be removed from his office except  by  the President  on an address from both the Houses of  Parliament of  the  Union in the same session for such removal  on  the ground of proved misbehaviour or incapacity. Further  provi- sion  may  be made by Federal law for the  procedure  to  be adopted  in  this behalf’. Shri K. Santhanam  had  moved  an amendment  in the said Clause relating to removal of  judges and  he  wanted the last sentence  about  further  provision being made by Federal law for the procedure to be adopted in that behalf, to be omitted. Shri M.Ananthasayanam  Ayyanagar proposed  amendments suggesting two alternative  clauses  in the  place  of  the Clause with regard  to  removal  of  the judges. In one clause, it was suggested that "a judge may be removed from office on the ground of misbehaviour or infirm- ity  of mind or body by an address presented in this  behalf by  both  the  Houses of the legislature  to  the  President provided that a committee consisting of not less than 7 High Court  Chief Justices chosen by the President,  investigates and  reports that the judge on any such ground be  removed". The  other alternative clause suggested by  Shri  M.Anantha- sayanam Ayyangar was that "a judge of the Supreme Court  may be  removed  from office by the President on the  ground  of misbehaviour  or of infirmity of mind or body, if on  refer- ence  being made to it (Supreme Court) by the  President,  a special 45 tribunal  appointed  by  him for the  purpose  from  amongst judges or exjudges of the High Courts or the Supreme  Court, report  that  the"’judge  ought on any such  grounds  to  be removed."  The Constituent Assembly adopted clause  18  with the amendments as proposed by Shri Alladi Krishnaswami Ayyar and  rejected the amendments suggested by Shri  M.  Anantha- sayanam Ayyangar. Shri Santhanam did not press his amendment and  it was withdrawn. There is no doubt that in the  amend- ments  which were suggested by Shri M.Ananthasayanam  Ayyan- gar, it was provided that there-should be investigation into the allegations of misbehaviour or infirmity by a  committee consisting  of  Chief  Justices of the High  Courts  or  the special  tribunal consisting of judges or ex-judges  of  the High  Court or the Supreme Court, but the rejection  of  the said  amendments moved by Shri Ayyangar does not  mean  that the Constituent Assembly was not in favour of  determination about  the correctness of such allegations by judicial  body because Shri Alladi Krishnaswami Ayyar, while moving  Clause 18  had  emphasised the word ’proved misbehaviour’  and  had stated:               "While  the ultimate power may rest  with  the               two  Houses,  the  Clause  provides  that  the               charges  must be proved. How exactly to  prove               the charges will be provided for in the Feder-               al law. We need not be more meticulous or more               elaborate,  than the people who have  tried  a

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             similar  case in other jurisdictions. I  chal-               lenge  my friend to say whether there  is  any               detailed  provision for the removal of  judges               more  than that in any other  Constitution  in               the world. The general principle is laid  down               in  the Constitution and later on the  Federal               law  will provide for adequate  machinery  and               that is the import of the clause".....   There               is  sufficient  safeguard  in  the   reference               "proved misbehaviour" and we might make elabo-               rate  and  adequate provision for the  way  in               which  ’,he guilt could be brought home  to  a               particular  judge in any Federal law that  may               be   passed   but   that   is   a    different               matter"......   "But I do not think that in  a               Constitution  it is necessary to  provide  de-               tailed  machinery as to the  impeachment,  the               charges  to  be framed  against  a  particular               judge.  To make a detailed machinery  for  all               these could be a novel procedure to be adopted               in any Constitution".               (Constituent  Assembly Debates, vols. I to  VI               at pp. 899-900)     25.  Reference was also made to the debates of the  Con- stituent  Assembly dated May 24, 1949 on Article 103 of  the Draft  Constitution. Shri Tajamul Hnsain moved an  amendment in Clause (4) of Article 103 which related to the removal of a  judge of Supreme Court and suggested an amendment in  the said clause so as to provide that "a judge of the Supreme 46 Court  shall  not be removed from his office  except  by  an order of the President passed, after a Committee  consisting of all the judges of the Supreme Court had investigated  the charge  and  reported on it to the President and  etc."  The said  amendment was negatived by the  Constituent  Assembly. (Constituent  Assembly  Debates, vol. VIII at  pp.  243  and 262). The said amendment was similar to those moved by  Shri M.  Ananthasayanam  Ayyangar  at the stage  of  adoption  of Clause 18 of the report of the Union Constitution  Committee noticed earlier. The reasons which were given by Shri Alladi Krishnaswami  Ayyar for opposing the said  amendments  would apply to this amendment also.     26. The proceedings in the Constituent Assembly,  there- fore, do not give an indication that in adopting Clauses (4) and (5) of Article 124 of the Constitution, the intention of the  Costituent Assembly was to exclude_  investigation  and proof of misbehavior 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  amend- ments  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.     27.  This is some of the historical material  and  back- ground  on  the topic. We may now proceed  to  consider  the merits of the contentions. RE: CONTENTION A:     28.  This contention has two aspects: whether  a  motion for  removal of a Judge lapses upon the dissolution  of  the House of Parliament and secondly, the question whether it so lapses  or not is a matter within the exclusive  domain  and decision  of  that House itself. On the  first  aspect,  the

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contention  of the learned Attorney General and  Shri  Kapil Sibal,  learned Senior Counsel, are similar. On  the  second aspect,  the  learned Attorney General would  say  that  the question whether a motion lapsed or not is to be decided  on the  basis of the provisions of law guiding the  matter  and the House itself is not its final arbiter. Learned  Attorney General  would say that the Court alone has jurisdiction  to examine and pronounce on the law of the matter.     29. On the question of lapse reliance was placed on  the classic  treatise  of Erskine May’s  "The  Law,  Privileges, Proceedings and Usage 47 of  Parliament" [Twenty-first Edition,  London  Butterworths 1989].  A  motion is described as a "proposal made  for  the purpose of illustrating the decision of the House".  Accord- ing to Erskine May, certain matters may be raised by only  a substantive motion. He says:               "Certain matters cannot be debated, except  on               a  substantive motion which allows a  distinct               decision  of the House. Amongst these are  the               conduct  of  the sovereign, the  heir  to  the               throne or other members of the Royal Family, a               Governor-General of an independent  territory,               the Lord Chancellor, the Speaker, the Chairman               of Ways and Means, Members of either House  of               Parliament  and judges of the superior  courts               of  the  United  Kingdom,  including   persons               holding  the  position of a judge, such  as  a               judge  in a court of bankruptcy and  a  county               court, or a recorder..."     30.  ’Sri Sibal placed strong reliance on the  following statements  in  M.N.Kaul and S.L.Shakdher in  "Practice  and Procedure  of Parliament" as to the effects of the  dissolu- tion of the House:               "Dissolution, as already stated, marks the end               of the life of a House and is followed by  the               constitution  of a new House. Once  the  House               has been dissolved, the dissolution is irrevo-               cable. There is no power vested in the  Presi-               dent  to cancel his order of  dissolution  and               revive the previous House. The consequences of               a dissolution are absolute and irrevocable. In               Lok Sabha, which alone is subject to  dissolu-               tion   under  the  Constitution,   dissolution               "passes   a  sponge  over  the   parliamentary               slate". All business pending before it or  any               of  its committees lapses on  dissolution.  No               part of the records of the dissolved House can               be  carried  over  and  transcribed  into  the               records  or  registers of the  new  House.  In               short, the dissolution draws the final curtain               upon the existing House".     Adverting to the effect of dissolution on other business such as motions, resolutions etc., the learned authors say:               "All  other  business pending  in  Lok  Sabha,               e.g., motions, resolutions, amendments supple-               mentary  demands for grants etc., at  whatever               stage,  lapses upon dissolution, as  also  the               petitions  presented to the House which  stand               referred to the Committee on Petitions."     Learned  Attorney General urged that a combined  reading of  Articles  107,  108 and 109 leads  irresistibly  to  the conclusion that upon dissolution 48 of  the  House,  all bills will lapse subject  only  to  the

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exception  stipulated  in Article 108. It is  further  urged that on first principle also it requires to be accepted that no  motion should survive upon the dissolution of the  House unless stipulated otherwise under the Rules of Procedure and conduct of business. The doctrine of lapse, it is urged,  is a necessary concomitant of the idea that each newly  consti- tuted  House is a separate entity having a life of  its  own unless the business of the previous House is carried over by the force of statute or rules of procedure. Both the learned Attorney  General and Shri Kapil Sibal took us  through  the Rules of Procedure and Conduct of Business in Lok Sabha made under Article 118 of the Constitution to show that  invaria- bly  all pending business come to an end with the expiry  of the term of the House or upon its earlier dissolution.     Shri  Ram  Jethmalani for  the  petitioner-sub-committee referred  to the conventions of the British  Parliament  and urged  that pending business lapses on prorogation and as  a general practice the House is usually prorogued before it is dissolved. Learned counsel said that impeachment motions are sui generous in their nature and that they do not lapse.  It is. however, necessary to distinguish the Indian  Parliamen- tary experience under a written Constitution from the  Brit- ish conventions. Indeed, referring to the doctrine of  lapse this Court in Purushothaman Nambudiri v. The State of Kerala [1962] Suppl. 1 SCR 753 Gajendragadkar J said:               "....  In support of this argument it is urged               that  wherever the English parliamentary  form               of Government prevails the words "prorogation"               and "dissolution" have acquired the status  of               terms of art and their significance and conse-               quence are well settled. The argument is  that               if  there is no provision to the  contrary  in               our  Constitution the English convention  with               regard  to  the  consequence  of   dissolution               should be held to follow even in India.  There               is no doubt that, in English, in addition   to               bringing  a session of Parliament to  a  close               prorogation puts an end to all business  which               is  pending consideration before either  House               at  the time of such prorogation; as a  result               any proceedings either in the House or in  any               Committee of the house lapse with the  session               Dissolution  of Parliament is invariably  pre-               ceded by. prorogation, and what is true  about               the  result of prorogation" is, it is said,  a               fortiori true about the result of dissolution.               Dissolution  of  Parliament is  sometimes  de-               scribed  as  "a civil  death  of  Parliament".               Ilbert,  in his work on ’Parliament’  has  ob-               served  that "prorogation means the end  of  a               session (not of a Parliament)"; and adds  that               "like  dissolution, it kills all  bills  which               have not yet passed". He also describes disso-               lution as an "end of a Parliament (not  merely               of               49               a  session)  by royal proclamation",  and  ob-               serves  that "it wipes the slate clean of  all               uncompleted        bills       or        other               proceedings"..."[p.759 & 760].     After  referring  to the position in  England  that  the dissolution  of the House of Parliament brought to  a  close and  in that sense killed all business of the House  at  the time of dissolution, the learned Judge said:               "  .......  Therefore, it seems to us that the

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             effect of cl. (5) is to provide for all  cases               where  the principle of lapse  on  dissolution               should  apply. If that be so, a  Bill  pending               assent of the Governor or President is outside               cl.  (5)  and cannot be said to lapse  on  the               dissolution of the Assembly."               [p. 768]               "   ........   In the absence of  cl.  (5)  it               would have followed that all pending business,               on  the  analogy of  the  English  convention,               would lapse on the dissolution of the Legisla-               tive  Assembly. It is true that  the  question               raised before us by the present petition under               Pal.  196 is not free from difficulty but,  on               the  whole, we are inclined to take  the  view               that  the effect of cl. (5) is that all  cases               not  falling within its scope are not  subject               to  the doctrine of lapse of pending  business               on  the dissolution of the Legislative  Assem-               bly. In that sense we read cl. (5) as  dealing               exhaustively  with Bills which would lapse  on               the  dissolution of the Assembly. If  that  be               the  true position then the argument that  the               Bill which was pending assent of the President               lapsed  on the dissolution of the  Legislative               Assembly cannot be upheld."               [P. 769]     31.  It is true that Purushothaman Nambudiri case  dealt with a legislative measure and not a pending business in the nature  of  motion. But, we are persuaded to the  view  that neither  the doctrine that dissolution of a House "passes  a sponge over parliamentary slate" nor the specific provisions contained  in any rule or rules flamed under Article 118  of the Constitution determine the effect of dissolution on  the motion for removal of a judge under Article 124. the  reason is  that Article 124(5) and the law made thereunder  exclude the operation of Article 118 in this area. Section 3 of the Act provides:               "3(1)  If  notice  is given of  a  motion  for               presenting an address to the President praying               for the removal of a Judge signed,--                    (a) in the case of a notice given in  the               House  of  the People, by not  less  than  one               hundred members of that House;               50                     (b) in the case of a notice given in the               Council  of  States, by not  less  than  fifty               members of that Council;               then, the Speaker or, as the case may be,  the               Chairman  may, after consulting such  persons,               if any, as he thinks fit and after considering               such materials, if any, as may be available to               him,  either  admit the motion  or  refuse  to               admit the same.               (2)  If the motion referred to in  sub-section               (1)  is admitted, the Speaker or, as the  case               may  be,  the Chairman shall keep  the  motion               pending and constitute, as soon as may be, for               the  purpose of making an  investigation  into               the grounds on which the removal of a Judge is               prayed  for, a Committee consisting  of  three               members of whom --                 (a) One shall be chosen from among the Chief               Justices  and  other  Judges  of  the  Supreme               Court;

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                Co)  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;               Proviso &)              Omitted               Sub-sections)           as               (3) to (9))              unnecessary here.               Section 6.(2) provides:               "(2) If the report of the Committee contains a               finding that the Judge is guilty of any misbe-               haviour 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."     The effect of these provisions is that the motion  shall be kept pending till the committee submits its report and if the  committee finds the Judge guilty, the motion  shall  be taken  up  for consideration. Only one motion  is  envisaged which  will remain pending. No words of limitation that  the motion  shall  be kept pending subject to  usual  effect  of dissolution  of  the House can or should  be  imported.  The reason  is that a law made by the Parliament and binding  on the House can provide against the doctrine of lapse. The law envisaged in article 124(5) is Parliamentary law which is of higher quality and efficacy than rules made by the House for itself  under  Article 118. Such a law can,  and  under  the present statute does 51 provide  against  the doctrine of lapse. Further,  Art.  118 expressly  states  that each House of  Parliament  may  make rules  "for  regulating, subject to the provisions  of  this Constitution".     In  State of Punjab v. Sat Pal Dang & Ors. [1969] 1  SCR 478 this Court held that the law for purposes of Article 209 (analogues  to Article 119) could even take the form  of  an Ordinance  promulgated  by  the Governor of  a  State  under Article  213 and that wherever there is  repugnance  between the Rules of Procedure framed under Article 208 (Article 118 in  the ease of Parliament), the law made under Article  209 shall  prevail. In the constitutional area of removal  of  a Judge, the law made under Article 124(5) must be held to  go a  little further and to exclude the operation of the  Rules under  Article 118. Indeed, no question of repugnance  could arise  to the extent the field is covered by the  law  under Article 124(5).     Such  a view would indeed obviate some  anomalies  which might  otherwise arise. Rajya Sabha is not dissolved  and  a motion  for presentation of address for the removal  of  the Judge  can never lapse there. Section 3 applies to both  the Houses  of  Parliament.  The words "shall  keep  the  motion pending"  cannot  have  two different meanings  in  the  two different contexts. It can only mean that the  consideration of  the  motion  shall be deferred till the  report  of  the committee implying that till the happening of that event the motion will not lapse. We are of the view that the  argument that such a motion lapses with the dissolution of the  House of Parliament is not tenable.     32. The second limb of Contention A is that the question whether a motion has lapsed or not is a matter pertaining to the conduct of the business of the House of which the  House is  the sole and exclusive master. No aspect of the  matter, it is contended, is justificiable before a Court. Houses  of

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Parliament,  it is claimed, are privileged to be the  exclu- sive  arbiters of the legality of their proceedings.  Strong reliance  has  been  placed on the  decision  in  oft-quoted decision  in  Bradlaugh v. Gosserr, [1884]  12  Q.B.D.  271. There  the exclusiveness of parliamentary jurisdiction on  a matter  related to the sphere where Parliament, and not  the Court,  had exclusive jurisdiction even if the matters  were covered by a statute.     But  where,  as in this country and unlike  in  England, there is a written constitution which constitutes the funda- mental and in that sense a "higher law" and acts as a  limi- tation upon the Legislature and other organs of the State as grantees  under  the Constitution, the  usual  incidents  of parliamentary  sovereignty do not obtain and the concept  is one of ’limited Government’. Judicial review is, indeed,  an incident of and flows 52 from  this  concept of the fundamental and  the  higher  law being  the  touchstone of the limits of the  powers  of  the various organs of the State which derive power and, authori- ty  under  Constitution and that the judicial  wing  is  the interpreter  of  the  Constitution and,  therefore,  of  the limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown is Supreme  and  its powers are unlimited and  courts  have  no power of judicial review of legislation.     This  doctrine  is in one sense the  doctrine  of  ultra vires  in  the constitutional law. In a federal set  up  the judiciary becomes the guardian of the Constitution.  Indeed, in A.K. Gopalan v. The State of Madras, [1950] SCR 88  Arti- cle  13 itself was held to be ex abundante cautela and  that even  in its absence if any of the fundamental  rights  were infringed by any legislative enactment, the court had always power  to declare the enactment invalid. The  interpretation of the Constitution as a legal instrument and its obligation is  the  function  of the Courts. "It  is  emphatically  the province and duty of the judicial department to say what the law  is".  In Re: Special Reference Case, [1965] 1  SCR  413 Gajendragadkar, CJ said:               ".......though  our Legislatures have  plenary               powers,  they function within the limits  pre-               scribed  by the material and  relevant  provi-               sions of the Constitution.               In a democratic country governed by a  written               Constitution, it is the Constitution which  is               supreme and sovereig.....  "     But  it is the duty of this Court to interpret the  Con- stitution  for  the  meaning of which this  Court  is  final arbiter.     33. Shri Kapil Sibal referred us to the following obser- vations of Stephen J. in Bradlaugh v. Gosserr, supra:               "......It  seems to follow that the  House  of               Commons has the exclusive power of  interpret-               ing  the statute, so far as the regulation  of               its  own proceedings within its own  walls  is               concerned;  and that even if that  interpreta-               tion  should be erroneous, this court  has  no               power  to interfere with it directly or  indi-               rectly..."               [p. 280 & 281]               "....The  House of Commons is not a  Court  of               Justice;  but the effect of its  privilege  to               regulate its own internal concerns practically               invest it with the judicial character when  it               has  to apply to particular cases  the  provi-

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             sions of Acts of Parliament.               53               We must presume that it discharges this  func-               tion properly and with due regard to the laws,               in  the  making  of which it has  so  great  a               share. If its determination is not in  accord-               ance  with law, this resembles the case of  an               error by a judge whose decision is not subject               to  appeal. There is nothing startling in  the               recognition of the fact that such an error  is               possible. If, for instance, a jury in a crimi-               nal case gives a perverse verdict, the law has               provided no remedy. The maxim that there is no               wrong without a remedy does not mean, as it is               sometimes supposed, that there is legal remedy               for every moral or political wrong.....  " [p. 285]     The  rule in Bradlaugh v. Gossett, supra, was  held  not applicable  to proceedings of colonial legislature  governed by the written constitutions Barton v..Taylor, [1886] 11  AC 197 and Redillusion (Hong Kong) Ltd. v. Attorney General  of Hong Kong, [1970] AC 1136.     The  principles in Bradlaugh is. that even  a  statutory right  if it related to the sphere where Parliament and  not the  courts had exclusive jurisdiction would be a matter  of the  Parliament’s own concern. But the principle  cannot  be extended where the matter is not merely one of procedure but of substantive law concerning matters beyond the  Parliamen- tary  procedure. Even in matters of procedure the  constitu- tional  provisions are binding as the legislations  are  en- forceable. Of the interpretation of the Constitution and  as to  what law is the Courts have the constitutional  duty  to say  what  the law is. The question whether the  motion  has lapsed  is a matter to be pronounced upon the basis  of  the provisions  of the Constitution and the relevant  laws.  In- deed, the learned Attorney General submitted that the  ques- tion  whether  as an interpretation  of  the  constitutional processes  and laws, such a motion lapses or not  is  exclu- sively for the courts to decide.     The  interpretation  of the laws is the  domain  of  the courts  and  on such interpretation  of  the  constitutional provisions  as  well as the Judges (Inquiry) Act,  1968,  it requires  to be held that under the law such a  motion  does not lapse and the Courts retain jurisdiction to so  declare. Contention A is answered accordingly. RE: CONTENTIONS (B), (C) AND (D):    34. These contentions have common and over-lapping  areas and admit  of being deal with and disposed of together. On  tile interpretative criteria apposite to the true meaning and scope of  Articles 121, 124(4) and 124(5),  indeed, three constructional options become  avail- able: 54               First:        The entire power for taking  all               steps for the removal of a  Judge, culminating               in   the   presentation  of  an   address   by               different  Houses of Parliament to the  Presi-               dent,  is committed to the two Houses of  Par-               liament alone and no             initiation of               any  investigation  is  possible  without  the               initiative  being  taken by the  Houses  them-               selves.  No  law   made  by  Parliament  under               Article 124(5) could take away this power. The

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             bar  of Article 121 is lifted the  moment  any               Member  of Parliament gives notice  of  motion               for  the   removal of a Judge and  the  entire               allegations levelled by him would be open  for               discussion in the House itself. It will be for               the  majority  of the Members of the  House  t               decide if and how they would like to have  the               allegations               investigated.    Any               abridging this power is bad.               Second:      Since a motion for presenting  an               address to the President referred to in  Arti-               cles  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 misbeha-               viour  or incapacity and regulates the  proce-               dure  therefor,  no motion for  removal  of  a               Judge  would  be  permissible  under   Article               124(4) and the  House of Parliament would  not               be brought into the picture till some authori-               ty  outside the two Houses of  Parliament  has               recorded a finding of misbehaviour or incapac-               ity.   The  emphasis  is  on  the   expression               ’proved’.               Third:        That Article 124(5) is  only  an               enabling provision and in  the absence of  any               enactment by the Parliament under that  provi-               sion  it  would  be open to  either  House  to               entertain a motion for the removal of a Judge.               However,  it is open to the  Parliament  under               Article 124(5) to enact a law to regulate  the               entire procedure starting with the  investiga-               tion  of  the allegations  against  the  Judge               concerned and ending with the presentation  of               the  address by the two Houses of  Parliament.               It  would be open to the Parliament to  desig-               nate any authority of its choice for  investi-               gating  the allegations and also  to  regulate               the               55               procedure for the consideration of the  matter               in either House.               As  soon  as a law has been  enacted  all  its               provisions would be binding on both Houses  of               Parliament  and would even override any  Rules               flamed by the two Houses under Article 118  of               the  Constitution. It will not be  permissible               for either House to act contrary to the provi-               sions of such Act. The question as to when and               in what circumstances motion would be  allowed               to  be moved in either House of Parliament  to               lift the ban against the discussion of conduct               of a Judge under Article 121 would be  accord-               ing to such Act of Parliament.     In regard to the first and the second alternative propo- sitions,  the  deliberations of the Joint  Select  Committee would  indicate a sharp divide amongst the eminent  men  who gave  evidence. Particularly striking is the sharp  contrast between the opinions of Mr. K.K. Shah and Mr. M.C. Setalvad. The first view would tend to leave the matter entirely  with

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the House, which can adopt any procedure even differing from case  to case. The matter would be entirely beyond  judicial review.  Then there is the inevitable’ element of  political overtone and of contemporary political exacerbations arising from  inconvenient judicial pronouncements thus  endangering judicial independence.     The  third view would suffer from the  same  infirmities except that Parliament might itself choose to discipline and limit  its own powers by enacting a law on the subject.  The law  enacted under Article 124(5) might be a  greatly  civi- lized  piece of legislation deferring to values of  judicial independence.  But  then  the Parliament would  be  free  to repeal that law and revert hack to the position reflected in the  first view. The third view can always acquire back  the full  dimensions of the first position at the choice of  the Parliament.     35. 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 inves- tigation and inquiry in the two Houses. Let us elaborate  on this. 56 36. Article 121 ,and the material parts of Article 124  read as under:               "121.   Restriction on discussion  in  Parlia-               ment.  -  No discussion shall  take  place  in               Parliament with respect to the conduct of  any               Judge of the Supreme Court or of a High  Court               in  the discharge of his duties except upon  a               motion for presenting an address to the Presi-               dent  praying for the removal of the Judge  as               hereinafter provided.                     124.  Establishment and constitution  of               Supreme Court.               (1)....................................               (2) Every Judge of the Supreme Court shall  be               appointed  by the President by  warrant  under               his hand and seal after consultation with such               of the Judges of the Supreme Court and of  the               High Courts in the States as the President may               deem necessary for the purpose and shall  hold               office until he attains the age of  sixty-five               years:               Provided that in the case of appointment of  a               Judge  other than the Chief Justice  of  India               shall always be consulted:               Provided further that -               (a)  a  Judge may, by writing under  his  hand               addressed to the President, resign his office;               (b) a Judge may be removed from his office  in               the manner provided in clause (4).               (4) 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               not  less  than two-thirds of the  members  of               that  House present and voting has  been  pre-               sented  to the President in the  same  session               for  such  removal  on the  ground  of  proved               misbehaviour or incapacity.

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             (5) Parliament may by law regulate the  proce-               dure  for the presentation of an  address  and               for the investigation and proof of the  misbe-               haviour or incapacity of a Judge under  clause               (4)."     Article  121  suggests  that the bar  on  discussion  in Parliament  with  respect  to the conduct of  any  Judge  is lifted  ’upon  a  motion for presenting an  address  to  the President praying for the removal of a Judge as hereinaf- 57     provided’. The word ’motion’ and ’as hereinafter provid- ed’ are obvious references to the motion for the purpose  of clause (4) of Article 124 which in turn, imports the concept of  "proved" misbehaviour or incapacity. What lifts the  bar under Article 121 is the ’proved’ misbehaviour or  incapaci- ty. Then arises the question as to how the investigation and proof  of misbehaviour or incapacity preceding the stage  of motion for removal on the ground of "proved" misbehaviour or incapacity under Article 124(4) is to be carried on.  Clause (5) of Article 124 provides for enactment of a law for  this purpose.     37. The seminal question is whether clause (5) is merely an enabling provision particularly in view of the use of the word ’may’ therein, or it incorporates a condition precedent on  the power of removal of the parliament. In other  words, can  the  function of removal under Article 124(4)  be  per- formed without the aid of a law enacted under clause  (5)?If it  can  be, then the power for investigation and  proof  of misbehaviour  or  incapacity  of a Judge must  be  found  in clause  (4) itself and the scope of clause (5) limited  only to  enactment of a law for this limited purpose if the  Par- liament so desires and not otherwise. The other view is that clause (5) contains a constitutional limitation on the power of  removal contained in clause (4) so that it can be  exer- cised only on misbehaviour or incapacity "proved" in accord- ance  with the law enacted under clause (5). In such  situa- tion,  the  power of the Parliament would  become  available only  for enacting the law under clause (5) and if  misbeha- viour or incapacity is "proved" in accordance with such law. 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  misbehavior  or incapacity has been proved in accordance with the law enact- ed  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 investi- gation and finding of proof of the misbehaviour or incapaci- ty  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  misbeha- viour 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 upto 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 58 discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct

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of  the Judge; and the further consequence would  ensue  de- pending  on the outcome of the motion in a House of  Parlia- ment.  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).     38. If it be accepted that clause (4) of Article 124  by contains the complete power of removal and the enactment  of a law under clause (5) is merely enabling and not a  consti- tutional limitation on the exercise of the power of  removal under  clause (4), then some other questions arise for  con- sideration.  If clause (5) is merely an enabling  provision, then it cannot abridge the scope of the power in clause  (4) and,  therefore,  the power of a House of  Parliament  under clause (4) cannot be curtailed by a mere enabling law enact- ed  under clause (5) which can be made only for the  purpose of  aiding  or facilitating exercise of the  function  under clause (4). In that situation, enactment of the enabling law under  clause (5) would not take the sphere covered  by  the law  outside  the ambit of Parliament’s power  under  clause (4).  The argument that without enactment of the  law  under clause  (5), the entire process from the time of  initiation till presentation of the address to the President, including investigation  and proof of the misbehaviour or  incapacity, is  within the sphere of Parliament, but on enactment  of  a law under clause (5) that area is carved out of the  Parlia- ment’s sphere and assumes statutory character appears  tenu- ous.  If the argument were correct, then clause  (5),  would merely contemplate a self-abnegation.     39.  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.  The matter not  being  before  the Parliament prior to this stage is also indicated by  Article 121  which  lifts the bar on discussion in  Parliament  only upon a motion for presenting an address to the President  as provided later in Article 124(4). The bar in 59 Article 121 applies to discussion in Parliament but investi- gation and proof of misconduct or incapacity cannot  exclude such  discussion.  This  indicates that  the  machinery  for investigation and proof must necessarily be outside  Parlia- ment 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 upto  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

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role  to play till misconduct or incapacity is round  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.  Some  ex- pressions used in the Act, particularly sections 3 and 6  to suggest that the motion is initiated in the House or is kept pending in the House during investigation can be reconciled, if this Constitutional Scheme is accepted. Those expressions appear  to have been used since the authority  tO  entertain the  complaint is ’Speaker/Chairman’, the complaint  is  de- scribed  as ’motion’ and the complaint can be made  only  by the specified number of Members of Parliament. In  substance it  only means that the specified number of M.Ps. alone  can make  such  a complaint; the complaint must be made  to  the ’Speaker/Chairman’;  on  receiving such a complaint  if  the Speaker/Chairman  form  the opinion that there  is  a  prima facie  case for investigation, he will constitute the  judi- cial committee as prescribed; and if the finding reached  is ’guilty’ then the Speaker/Chairman commences the  parliamen- tary  process in accordance with Article 124(4) for  removal of the Judge and the bar in  Article 121 is lifted.     40.  If this be the correct position, then the  validity of law enacted by the Parliament trader clause (5) of  Arti- cle  124  and the stage upto conclusion of  the  inquiry  in accordance with that law being governed entirely by  statute would be open to judicial review as the parliamentary  proc- ess  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 60 the  process and progress of inquiry under the  Judges  (in- quiry) Act, 1968 and consequently exclusion of this  Court’s jurisdiction in the matter at this stage does not arise. For the  same reason, the question of applying the  doctrine  of lapse  to the motion made to the Speaker giving rise to  the constitution  of the Inquiry Committee under the  Act,  also does not arise and there can be no occasion for the House to say so at any time. If the House is, therefore, not required to  consider this question since the  parliamentary  process can commence only after a finding of guilt being proved, the further  question of a futile writ also does not arise.  The argument  that the House can decide even after a finding  of guilt  that it would not proceed to vote for removal of  the Judge is not germane to the issue since that is  permissible in  the  Constitutional Scheme itself under  Article  124(4) irrespective  of the fact whether Article 124(5) is  a  mere enabling  provision  or a constitutional limitation  on  the exercise of power under Article 124(4).     41. It is not the law enacted under Article 124(5) which abridges or curtails the parliamentary process or exclusive- ly of its jurisdiction but the Constitutional Scheme  itself which  by enacting clauses (4) and (5) simultaneously  indi- cated that the stage of clause (4) is reached and the  proc- ess thereunder commences only when the alleged  misbehaviour or  incapacity is proved in accordance with the law  enacted under clause (5).     42.  It  is  only then that the need  for  discussing  a Judge’s conduct in the Parliament arises and, therefore, the

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bar under Article 121 is lifted. in short, the point of time when  the  matter comes first before the Parliament  in  the Constitutional Scheme, Article 121 provides that the bar  is lifted.  The other view creates difficulties by  restricting discussion  in Parliament on a motion which would be  before it. The suggestion to develop a convention to avoid  discus- sion  at  that stage or to prevent it by  any  other  device adopted by the Speaker after admitting the motion, does  not appear  to be a satisfactory solution or  explanation.  That this  obvious situation could have been left unprovided  for and  the field left to a convention to be  developed  later, while  enacting these provisions with extreme care and  cau- tion in a written Constitution, is extremely unlikely.  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  Parlia- ment’s jurisdiction under clause (4), does not exist,  which is  the reason for section 6 of 1968 Act saying so;  and  in case it is proved, the 61 process  under  clause  (4) commences,  culminating  in  the result provided in it.     43.  In  Part  V of the Constitution  relating  to  ’The Union’, Article 124 is in ’Chapter IV - The Union Judiciary’ while Articles 118 and 119 relating to Parliament’s power to make rules or enact a law to regulate its procedure and  the conduct  of  its business are in ’Chapter II  -  Parliament’ under the heading ’Procedure Generally’ wherein Article  121 also  finds place. The context and setting in  which  clause (5)  appears along with clause (4) in Article  124  indicate its nature connected with clause (4) relating to curtailment of  a  Judge’s tenure, clause (4) providing  the  manner  of removal and clause (5) the pre-requisite for removal distin- guished from Articles 118, 119 and 121, all of which  relate to procedure and conduct of business in Parliament.  Article 124(5)  does  not, therefore, operate in the same  field  as Article 118 relating to procedure and conduct of business in Parliament.     Accordingly,  the scheme is that the entire  process  of removal  is in two parts  the first parts 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.     44. 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.     If  the motion for presenting an address for removal  is envisaged  by Articles 121 and 124(4) ’on ground  of  proved misbehaviour or incapacity’ it presupposes that misbehaviour or  incapacity has been proved earlier. This is more  so  on account  of the expression ’investigation and proof used  in

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clause  (5)  with  specific reference to  clause  (4).  This indicates that ’investigation and proof’ of misbehaviour  or incapacity  is not within clause (4) but within clause  (5). Use  of the expression ’same session’ in clause (4)  without any  reference to session in clause (5) also indicates  that session  of House has no significance for clause  (5)  i.e., ’investigation  and proof’ which is to be entirely  governed by the enacted law and not the parliamentary practice  which may be altered by each Lok Sabha. 62      45.The  significance  of the word ’proved’  before  the expression  ’misbehaviour  or incapacity’ in clause  (4)  of Article 124 is also indicated when the provision is compared with  Article 317 providing for removal of a member  of  the Public  Service Commission. The expression in clause (1)  of Article  317  used for describing the ground of  removal  is ’the  ground of  behaviour’ while in clause (4)  of  Article 124, it is, ’the ground of proved misbehaviour or  incapaci- ty’.  The  procedure for removal of a member of  the  Public Service  Commission is also prescribed in clause  (1)  which provides for an inquiry by the Supreme Court on a  reference made for this purpose. In the case of a Judge, the procedure for investigation and proof is to be in accordance with  the law  enacted by the Parliament under clause (5)  of  Article 124. In view of the fact that the adjudication of the ground of  misbehaviour under Article 317 (1) is to be by  the  Su- preme Court, in the case of a Judge who is a higher  consti- tutional functionary, the requirement of judicial determina- tion  of  the ground is re-inforced by the addition  of  the word  ’proved’ in Article 124(4) and the requirement of  law for this purpose under Article 124(5).     46.  Use of the word ’may’ in clause (5) indicates  that for  the  ’procedure for presentation of address’ it  is  an enabling provision and in the absence of the law the general procedure  or that resolved by the House may apply  but  the ’investigation  and proof’ is to be governed by the  enacted law.  The word ’may’ in clause (5) is no impediment to  this view.     47.  On the other hand, if the word ’shall’ was used  in place of ’may’ in clause (5) it would have indicated that it was incumbent on the Parliament to regulate even the  proce- dure  for presentation of an address by enacting such a  law leaving  it  no option even in the matter of  its  procedure after  the misbehaviour or incapacity had been  investigated and  found true. ’Sometimes, the legislature uses  the  word "may"  out of deference to the high status of the  authority on  whom  the power and the obligation are  intended  to  be conferred  and  imposed.’ (See: State of  Uttar  Pradesh  v. Joginder  Singh,  [1964] 2 SCR 197 at 202.  Indeed,  when  a provision  is intended to effectuate a right--here it is  to effectuate a constituational protection to the Judges  under Article  124  (4)---even a provision as in Article  124  (5) which may otherwise seem merely enabling, becomes mandatory. The exercise of the powers is rendered obligatory. In  Fred- eric  Guilder  julius v. The Right Rev. The Lord  Bishop  of Oxford;  the Rev. Thomas Tellsson Carter, [1879-80]  5  A.C. 214 at p. 24zt, Lord Blackburn said:                        ,.The enabling words are construed as               compulsory whenever the object of the power is               to effectuate a legal right...."               63     In Punjab Sikh Regular Motor Service, Moudhapura v.  The Regional  Transport ,Authority, Raipur & Anr, [1966]  2  SCR 221,  this Court referring to the word ’may’ in Rule 63  (a) in  Central Provinces and Berar Motor Vehicles Rules,  1940,

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observed:               "....On behalf of the appellant attention  was               drawn to the expression ’may’ in Rule 63.  But               in  the context and the language of  the  rule               the word ’may’ though permissive in form, must               be  held to be obligatory. Under Rule  63  the               power  to grant renewal of the  counter-signa-               ture  on  the permit in the  present  case  is               conferred on the Regional Transport Authority,               Bilaspur. The exercise of such power of renew-               al  depends  not upon the  discretion  of  the               authority but upon the proof of the particular               cases  out of which such power  arises.  ’Ena-               bling words are construed as compulsory  when-               ever the object of the power is to  effectuate               a  legal  right’. (See: Julius  v.  Bishop  of               Oxford, 5 A.C. 214, 244)...."     If  the word ’may’ in Article124 (5) is given any  other meaning that sub-Article would render itself, to be  treated by the Parliament, as superfluous, redundant and otiose. The power  to  prescribe a procedure for the exercise  of  power under  Article 124 (4) could otherwise also be available  to the  House.  The law envisaged under Article 124(5)  is  not such a law; but one which would effectuate the constitution- al  policy  and philosophy of the machinery for  removal  of Judges.     The  use of the word ’may’ does not,  therefore,  neces- sarily indicate that the whole of clause (5) is an  enabling provision leaving it to the Parliament to decide whether  to enact  a  law even for the investigation and  proof  of  the misbehaviour or incapacity or not.     The  mere fact that clause (5) does not form a  part  of clause (4) itself, as appears to have been considered at one stage  when  the constitution was being  drafted,  does  not reduce  the  significance or content of clause  (5).  It  is likely  that  the  framers of the  Constitution  thought  of clearly demarcating the boundaries and, therefore, indicated that  upto the stage of proof of misbehaviour of  incapacity the field is covered by a law enacted by the Parliament, the first  pan  being covered by clause (5) and  the  latter  by clause (4) with the only difference that the Parliament  was given  the  option to regulate even the  procedure  for  the presentation  of an address after the misbehaviour or  inca- pacity had been proved by enacting a law for the purpose  to make it more definite and consistent. 64     48.  Similarly,  use of word ’motion’  to  indicate  the process  of investigation and proof in the Judges  (Inquiry) Act,  1968 because the allegations have to be  presented  to the  ’Speaker’ does not make it ’motion in the  House’  not- withstanding use of that expression in Section 6. Otherwise, section 6 would not say that no further step is to be  taken in  case  of a finding of ’not guilty’. It only  means  that when  the  allegation is not proved, the  Speaker  need  not commence the process under clause (4) which is started  only in case it is proved. The Speaker is, therefore, a statutory authority  under the Act chosen because the further  process is parliamentary and the authority to make such a  complaint is  given to Members of Parliament. Moreover, to the  enact- ment  under Article 124(5) cannot be a safe guide to  deter- mine the scope of Article 124(5).     If  this  construction of the  inter-connection  amongst Articles  118,121, 124 (4) and 124 (5) is the proper one  to be placed on them, as indeed we so do, the provisions of the Judges  (Inquiry)  Act do not foul with  the  Constitutional

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Scheme.     49.  On scope of the law under Article 124(5), the  idea of regulating procedure for (i) Presentation of the address; (ii)  Investigation and proof of misbehaviour or  incapacity admit of two possible options of interpretation. The idea of "Presentation of the address" may be confined to the  actual presentation of address by both Houses of the Parliament; or may  be held to cover the entire process from initiation  by the  motion in the House till the final act of  delivery  of the  address.  If the first view is correct  the  law  under Article 124(5) would apply at the stage of investigation and proof  of misbehaviour or incapacity and at the final  stage of  presentation of address after the motion is  adopted  by both the Houses. The motion and its consideration and  adop- tion by the House would be outside the ambit of such law and it  would be regulated by the rule of procedure  made  under Article  I 18. This view is too narrow. By bringing  in  the rules  of procedure of the House made under Article  118  it introduces an element of uncertainty and might affect  inde- pendence of the judiciary.     50.  Second  view  is to be preferred.  It  enables  the entire  process of removal being regulated by a law of  Par- liament  - ensures uniformity and reduces chances  of  arbi- trariness. Article I 18 is a general provision conferring on each House of Parliament the power to make its own rules  of procedure. These rules are not binding on the House and  can be altered by the House at any time. A breach of such  rules amounts  to an irregularity and is not subject  to  judicial review in view of Article 122.     51. Article 124(5) is in the nature of a special  provi- sion  intended  to regulate the procedure for removal  of  a Judge under Article 124(4) which 65 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.     52.  Article 124(5) has no comparison with Article  119. Articles  118 and 119 operate in the same field viz.  normal business  of  the  House. It was,  therefore,  necessary  to specifically  prescribe that the law made under Article  119 shall prevail over the rules of procedure made under Article 118.  Since  Article  118 and 124(5)  operate  in  different fields  a provision like that contained in Article  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 a  law  would  constitute illegality  and  could not be immune from  judical  scrutiny under Article 122(1).     53. Indeed, the Act reflectS the constitutional philoso- phy  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.     54. Indeed, the dissenting note of Dr. L.M. Singhvi,  in the  Report of the Joint Committee on the  Judges  (Inquiry) Bill, 1964 brings into sharp focus the thrust of the  report

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of  the  majority. It is to be recalled that the  1964  Bill vested the power to initiate the process of removal with the Executive.  That  was found objectionable  and  inconsistent with  the idea of judicial independence. However, as to  the nature  of  the authority which was the  repository  of  the power  to investigate, the dissenting opinion, by  necessary implication,  emphasises the majority view which  ultimately became the law. Dr. Singhvi in his dissent says:               "10.  The present Bill seeks to  provide  only               the  modality  of a tribunal  clothed  in  the               nomenclature  of  a Committee.  The  Committee               contemplated  in the Bill may well be  consid-               ered  a tribunal or an "authority" within  the               meaning of Articles 226 and 227 of the Consti-               tution, rendering itS work subject to judicial               review  and  supervision. What  is  more,  the               Parliament is not left with any choice in  the               matter and procedure of parliamen-               66               tary committee has been wholly excluded.  With               this I am not in agreement.               11. In both these matters in respect of  which               I  have dissented from my esteemed  colleagues               in  the Joint Select Committee, there  appears               to be an imprint on the provisions of the Bill               of the now defunct Burmese Constitution, which               provided  that  a notice  of  such  resolution               should  be signed by not less than  one-fourth               of  the total membership of either Chamber  of               Parliament  and further that the charge  would               be investigated by a special tribunal (S.  143               of  the Burmese Constitution). In the  Burmese               case,  the special tribunal was to consist  of               the President or his nominee and the  Speakers               of the Chamber of Nationalities and the  Cham-               ber  of  Deputies.  I feel  that  the  Burmese               analogue is neither inspiring nor instructive,               and that the more highly evolved procedures of               other democratic constitutions which have been               tried  and  tested for  centuries  would  have               served us better".     55. Our conclusions, therefore, on contentions B, C  and D are as under:     The  constitutional process for removal of a Judge  upto 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.  Upto  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 Article 121 against discussing  the conduct of a Judge in the Parliament. Article 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.     The Speaker while admitting a motion and constituting  a Committee to investigate the alleged grounds of misbehaviour or  incapacity does not act as part of the House. The  House does not come into the picture at this stage. The provisions of  the Judges (inquiry) Act, 1968 are not  unconstitutional as  abridging  the powers and privileges of the  House.  The Judges  (inquiry) Act, 1968 is constitutional and  is  intra

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vires. Contention D is disposed of accordingly. 67 RE: CONTENTION (E)     56. It is urged by Shri Sibal that having regard to  the serious  consequences  that  flow from the  admission  of  a motion  by  the  Speaker and the decision  to  constitute  a Committee for investigation, it is incumbent upon the Speak- er  to  afford an opportunity to the Judge  of  being  heard before  such  a  decision is taken. It is  urged  that  such decision has momentous conseqences both to the Judge and  to the  judicial  system as a whole and  that  any  politically motivated  steps to besmear a Judge will not  merely  affect the Judge himself but also the entire system of  administra- tion of justice. If a motion brought up with collateral  and oblique  motives, it would greatly advance the  objects  and purposes  of  Judges (Inquiry) Act, 1968 if the  Judge  con- cerned  himself  is  heard  before a  decision  to  admit  a ,"notion  which  has shattering consequences so far  as  the Judge  is  concerned is taken. The minimum  requirements  of natural  justice, appropriate in the context,  says  learned counsel,  require that the Judge should have an  opportunity of being heard.     57. Shri Jethmalani, on the contrary, contended that  it would be highly inappropriate that the Speaker should  issue notice  to  a Judge and call upon him to appear  before  the Speaker.  That apart, Shri Jethmalani said at that stage  of the  proceedings where the Speaker merely decides  that  the matter  might bear investigation no decisions affecting  the rights,  interests or legitimate expectation can be said  to have  been  taken. Shri Jethmalam sought to point  out  that these proceedings could not be equated with disciplinary  or penal  proceedings.  The Speaker does  not  decide  anything against the Judge at that stage.     Referring to the nature and purpose of such  preliminary proceedings Corpus Juris Secundum (Vol. 48A) says:               "As  a general rule, disciplinary  or  removal               proceedings relating to Judges are sui generis               and  are not civil or criminal in nature;  and               their  purpose  is  to  inquire  into  judical               conduct  and  thereby  maintain  standards  of               judicial fitness".               [p.614]     As to the stage at which there is a need for notice  and opportunity  to the Judge to be heard the statement  of  the law is:               "The  general rule is that before a Judge  may               be disciplined, as by removal, he is  entitled               to  notice and an opportunity to  defend  even               though  there  is  no  statute  so  requiring.               Ordinarily,               68               the right to defend is exercised in a trial or               hearing, as considered infra 51. More specifi-               cally  the Judge is entitled to notice of  the               particular  charges against him. In  addition,               notice  of the charge should be  given  suffi-               ciently in advance of the time for  presenting               a  defence to permit proper preparation  of  a               showing in opposition".               (pp. 613-614)     But  negativing  the position that the  Judge  would  be entitled  to  notice  even at the preliminary  stage  it  is stated:               "Investigations may be conducted into  matters               relating to judicial conduct as a  preliminary

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             to formal disciplinary proceedings.               A judiciary commission may conduct an investi-               gation  into  matters  relating  to   judicial               conduct  as a preliminary to formal  discipli-               nary  proceedings, and a court may, under  its               general powers over inferior courts, appoint a               special commissioner to preside over a prelim-               inary  investigation. A court  rule  providing               that a Judge charged with misconduct should be               given  a reasonable opportunity in the  course               of a preliminary investigation to present such               matters  as  he may choose, affords  him  more               protection than is required by  constitutional               provisions".               [p. 615]     58. The position is that at the stage of the  provisions when  the Speaker admits the motion under section 3  of  the Judges (Inquiry) Act, a Judge is not, as a matter of  right, entitled to such notice. The scheme of the statute and rules made  thereunder  by necessary implication, exclude  such  a right.  But that may not prevent the Speaker, if  the  facts and  circumstances placed before him indicate  that  hearing the  Judge himself might not be inappropriate, might do  so. But a decision to admit the motion and constitute a  Commit- tee for investigation without affording such an  opportunity does  not, by itself and for that reason alone, vitiate  the decision. Contention E is disposed of accordingly. RE:CONTENTION (F)     59. The substance of this contention as presented by the learned  counsel  for  the  petitioner,  "Sub-Committee"  -- argued with particular emphasis by Shri R.K. Garg --is  that the  constitutional  machinery  for removal of  a  Judge  is merely a political remedy for judicial misbehaviour 69 and  does not exclude the judicial remedy available  to  the litigants  to ensure and enforce judicial integrity.  It  is urged  that the right to move the Supreme Court  to  enforce fundamental rights is in itself a fundamental right and that takes  within its sweep, as inhering in it, the right to  an impartial judiciary with persons of impeccable integrity and character. Without (his the fundamental right to move  court itself becomes barren and hollow. It is urged that the court itself  has the jurisdiction -- nay a duty -- to ensure  the integrity  and impartiality of the members composing it  and restrain any member who is found to lack in those  essential qualities  and  attainments at which  public  confidence  is built.     It is true that society is entitled to expect the  high- est  and  most exacting standards of propriety  in  judicial conduct. Any conduct which tends to impair public confidence in the efficiency integrity and impartiality of the court is indeed forbidden. In Corpus Juris Secundum (Vol. 48A) refer- ring  to the standards of conduct, disabilities  and  privi- leges of Judges, it is observed:               "The State which creates a judicial office may               set  appropriate  standards of conduct  for  a               Judge  who  holds  that office,  and  in  many               jurisdictions, courts acting within express or               implied  powers have adopted or have  followed               certain  canons or codes of judicial  conduct.               The power of a particular court in matters  of               ethical  supervision  and the  maintenance  of               standards for the judiciary may be exclusive.               Guidelines for judicial conduct are found both               in  codes of judicial conduct and  in  general

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             moral and ethical standards expected of  judi-               cial  officers  by the  community.  Canons  or               codes  are intended as a statement of  general               principles setting forth a wholesome  standard               of  conduct  for  judges  which  will  reflect               credit  and  dignity  on  the  profession  and               illsolar  as they prescribe conduct  which  is               malum  in  so as opposed to  malum  prohibitum               they operate to restate those general prinici-               ples  that have always governed judicial  con-               duct.               Although  these  canons have been held  to  be               binding  on judges and may have the  force  of               law where promulgated by the courts, except as               legislatively  enacted or  judicially  adopted               they  do not of themselves have the force  and               effect of law".               [pp. 593-594] the nature of prescribed conduct it is stated: 70               "A  Judge’s  official conduct should  be  free               from impropriety and the appearance of  impro-               priety  and generally, he should refrain  from               participation in activities which may tend  to               lessen public respect for his judicial office.               It  is  a  basic  requirement,  under  general               guidelines  and  canons of  judicial  conduct,               that  a Judge’s official conduct be free  from               impropriety and the appearance of  impropriety               and that both his official and personal  beha-               viour  be  in  accordance  with    the  highest               standard  society can expect. The standard  of               conduct  is higher than that expected  of  lay               people  and also higher than that expected  of               attorneys.  The  ultimate  standard  must   be               conducted  which constantly reaffirms  fitness               for  the  high  responsibilities  of  judicial               office and judges must so comfor’.  themselves               as  to dignify the administration  of  justice               and deserve the confidence and respect of  the               public.  It  is immaterial  that  the  conduct               deemed objectionable is probably lawful albeit               unjudicial  or that it is perceived as  lowhu-               mored horseplay.               In  particular,  a judge should  refrain  from               participation in activities which may tend  to               lessen public respect for his judicial  office               and  avoid  conduct which may give rise  to  a               reasonable belief that he has so participated.               In fact even in his private life a judge  must               adhere  to standards of probity and  propriety               higher  than those deemed acceptable for  oth-               ers.  While  a judge does have  the  right  to               entertain his personal views on  controversial               issues  and is not required to  surrender  his               rights  or opinions as a citizen his right  of               free  speech and free association are  limited               from  time to time by his official duties  and               he  must  be most careful  to  avoid  becoming               involved in public controversies".               [pp. 594˜596]     In Sampath Kumar & Ors. v. Union of India & Ors, [1985 ] 4  S.C.C. 458, dealing with the qualifications,  accomplish- ments  and attainments of the members of the  Administrative Tribunal,  which  were intended to substitute for  the  High

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Courts,  this court emphasised the qualities  essential  for discharging judicial functions.     60.  But we are afraid the proposition that, apart  from the  constitutional  machinery for removal of a  Judge,  the judiciary  itself  has the jurisdiction and  in  appropriate cases  a  duty to enquire into the integrity of one  of  its members  and  restrain the Judge  from  exercising  judicial functions  is beset with grave risks. The court  would  then indeed be acting as a tribunal1 for the removal of a  Judge. Learned counsel supporting the proposition 71 stated that the effect of restraining a Judge from  exercis- ing  judicial functions is not equivalent to a  removal  be- cause  the  conditions of service such as salary etc.  of  a Judge  would not be impaired. But we think that the  general proposition that the court itself has such a jurisdiction is unacceptable. It is productive of more problems then it  can hope to solve.     61. The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted. It is  the entire Constitutional Scheme including the provisions relat- ing  to  the process of removal of a Judge which are  to  be taken  into  account  for the purpose  of  considering  this aspect.  It  is difficult to accept that there  can  be  any right  in  anyone running parallel with  the  Constitutional Scheme for this purpose contained in clauses (4) and (5)  of Article 124 read with Article 121. No authority can do  what the Constitution by necessary implication forbids.  Inciden- tally,  this  also throws light on the question  of  interim relief in such a matter having the result of restraining the Judge  from  functioning  judicially on  initiation  of  the process  under the Judge (Inquiry) Act, 1968. The  Constitu- tional Scheme appears to be that unless the alleged misbeha- viour  or  incapacity  is ’proved’ in  accordance  with  the provisions  of  the law enacted under Article 124(5)  and  a motion for presenting an address for removal of the Judge on the  ground  of proved misbehaviour or incapacity  is  made, because  of the restriction contained in Article 121,  there cannot be a discussion about the Judge’s conduct even in the Parliament which has the substantive power of removal  under Article  124(4). If the Constitutional Scheme  therefore  is that  the  Judge’s conduct cannot be discussed even  in  the Parliament which is given the substantive power of  removal, till  the  alleged misconduct or incapacity is  ’proved’  in accordance with the law enacted for this purpose, then it is difficult to accept that any such discussion of the  conduct of the Judge or any evaluation or inferences as to its merit is  permissible  according to law  elsewhere  except  during investigation before the Inquiry Committee constituted under the statute for this purpose. The indication, therefore,  is that  interim  direction of this kind during  the  stage  of inquiry  into the alleged misbehaviour or incapacity is  not contemplated it being alien to our Constitutional Scheme.      62..The  question of propriety is,  however,  different from  that  of legality. The absence of a  legal  provision, like  Article  3  17(2) in the case of a  Member  of  Public Service  Commission, to interdict the Judge faced with  such an  inquiry from contining to discharge  judicial  functions pending  the  outcome of the inquiry or in the  event  of  a finding of misbehaviour or incapacity being proved till  the process  of removal under Article 124(4) is  complete,  does not  necessarily indicate that the Judge shall  continue  to function  during that period. That area is to be covered  by the 72

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sense  of  propriety of the learned Judge  himself  and  the judicial  tradition  symbolised by the views  of  the  Chief Justice  of  India. It should be expected that  the  learned Judge  would be guided in such a situation by the advice  of the Chief Justice of India, as a matter of convention unless he  himself decides as an act of propriety to  abstain  from discharging judicial functions during the interregnum. Since the  learned  Judge would continue to hold the office  of  a Judge  unless  he resigns or is removed, an  arrangement  to meet  the situation has to be devised by the Chief  Justice. The  Constitution  while providing for the suspension  of  a Member of a Public Service Commission in Article 3 17 (2) in a  similar situation has deliberately abstained from  making such a provision in case of higher constitutional  function- aries,  namely, the Superior Judges and President and  Vice- President of India, facing impeachment. It is reasonable  to assume  that the framers of Constitution had assumed that  a desirable  convention would be followed by a Judge  in  that situation which would not require the exercise of a power of suspension.  Propriety  of the desirable course  has  to  be viewed  in this perspective. It would also be reasonable  to assume that the Chief Justice of India is expected to find a desirable  solution in such a situation to avoid  embarrass- ment to the learned Judge and to the Institution in a manner which   is  conducive to the independence of  judiciary  and should  the Chief Justice of India be of the view  that  the interests  of the institution of judiciary it  is  desirable for the learned Judge to abstain from judicial work till the final  outcome  under Article 124(4), he  would  advise  the learned  Judge  accordingly.  It is  further  reasonable  to assume  that  the concerned learned Judge  would  ordinarily abide by the advice of the Chief Justice of India. All  this is, however, in the sphere of propriety and not a matter  of legal  authority  to, permit any court to  issue  any  legal directive  to the Chief Justice of India for  this  purpose. Accordingly Contention F is rejected. RE:CONTENTION (G) 63.  This  relates  to the mala fides  alleged  against  the Speaker. The       averments  in  this behalf are identical in  both  Raj Birbal’s  and Sham Ratan                 Khandelwal’s  peti- tions. We may notice the relevant averments:               "It is, therefore, disconcerting to note  that               the  Speaker acted contrary to  Constitutional               practice. It is assumed that this high Consti-               tutional  functionary would have known of  the               well  settled and  established  constitutional               practice  in regard to the fact  that  motions               lapse  with the dissolution of the House.  The               action of the Speaker, therefore, in admitting               the  motion in the manner that he did,  smacks               of mala fides and, therefore, de-               73                serves to be struck down.               The action of the Speaker is mala fide on  yet               another  count. The Speaker has  not  resigned               from the primary membership of the Janta Dal.               The petitioners verily believe that the  first               signatory to the motion is the erstwhile Prime               Minister of India Shri V.P. Singh who  happens               also  to be the leader of the Janta  Dal.  The               signatories to the said motion, the  petition-               ers verily believe, belong mostly to the Janta               Dal,  though the details of this fact are  not               precisely known to the petitioners. The Speak-

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             er,  as has been indicated earlier,  ought  to               have  allowed  parliament  to  look  into  the               matter  and discuss as to whether or  not  the               motion ought to be admitted. The Speaker ought               to  have  at least tabled the  motion  in  the               House to ascertain the views of the Members of               parliament  belonging to various  Houses.  The               Speaker,  to  say  the least,  ought  to  have               transmitted all materials to Justice Ramaswami               and sought a response from him before attempt-               ing to admit the motion. The Speaker ought  to               have  dealt with the motion much  earlier  and               transmitted  to  Justice  Rammaswami  all  the               materials as well as the views that might have               been  expressed  to him in the course  of  his               consultations  which enabled him to come to  a               decision. The Speaker in the very least  ought               to have ascertained the wishes of the House in               this  regard.  The Speaker ought not  to  have               decided  to admit the motion in the manner  he               did  on the last evening of the 9th Lok  Sabha               amidst  din and noise, when what he spoke  was               also  not entirely audible in the  House.  The               Speaker  is a high Constitutional  functionary               and ought to have exercised               his functions in the highest traditions of the               office  of this high constitutional  function-               ary. The Speaker ought also not to have  dealt               with the motion, the prime movers of which are               members  of his own party. ’the Speaker  ought               to  have disqualified himself in  this  regard               and  placed the matter for the  discussion  of               the House. The conduct of the Speaker in  this               entire  episode was unbecoming of a high  Con-               stitutional  functionary.  The action  of  the               Speaker is mala fide and deserves to be struck               down on this count alone."     The  averments as to mala fides are intermixed with  and inseparable  from touching the merits of  certain  constitu- tional issues. Indeed, mala fides are sought to be  impugned to the Speaker on the grounds that he did 74 not hear the Judge, did not have the motion discussed in the House etc. We have held these were not necessary.     64.  But  a point was made that the Speaker  not  having entered appearance and denied these allegations on oath must be deemed to have admitted them. It appears to us that  even on  the  allegations made in the petition and plea  of  mala fides which require to be established on strong grounds,  no such  case is made out. A case of mala fides cannot be  made out  merely  on the ground of political affiliation  of  the Speaker  either. That may not be a sufficient ground in  the present  context. At all events, as the only  statutory  au- thority  to  deal  with the matter,  doctrine  of  statutory exceptions  or  necessity  might be  invoked.  Contention  G cannot therefore be accepted. RE :CONTENTION (H)     65. This pertains to the locus standi of  "Sub-Committee on  the Judicial Accountability" and the Supreme  Court  Bar Association  to maintain the proceedings. If this  is  true, then  the petitioners in Transfer Petition No. 278  of  1991 and other writ petitions challenging the Speaker’s  decision would  not also have the necessary standing to sue. The  law as to standing to sue in public interest actions had  under- gone a vast change over the years and liberal standards  for

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determining locus standi are now recognised. The matter  has come to be discussed at considerable care and length in S.P. Gupta & Ors. etc. v. Union of India & Ors. etc. etc., [1982] 2  SCR  365. The present matter is of such  nature  and  the constitutional issues of such nature and importance that  it cannot be said that members of the Bar, and particularly the Supreme  Court Bar Association have no locus standi  in  the matter. An elaborate re-survey of the principles and  prece- dents over again is unnecessary. Suffice it to say that from any  point of view the petitioners satisfy the legal  equip- ments  of  the standing to sue. We,  therefore,  reject  the Contention H.     66.  We are constrained to say that certain  submissions advanced on the prayer seeking to restrain the learned judge from functioning till the proceedings of the committee  were concluded  lacked  as much in propriety as  in  dignity  and courtesy  with  which  the learned judge  is  entitled.  The arguments  seemed to virtually assume that the  charges  had been established. Much was sought to be made of the  silence of  the  Judge  and his refusal to be drawn  into  a  public debate.  If  we may say so with respect, learned  judge  was entitled to decline the invitation to offer his  explanation to his detractors, No adverse inference as to substance  and validity of the 75 charges could be drawn from the refusal of the learned judge to  recognise  these forums for his vindication.  While  the members of the bar may claim to act in public interest  they have,  at the same time, a duty of courtesy  and  particular care  that in the event of the charges being found  baseless or insufficient to establish any moral turpitude, the  judge does  not  suffer irreparably in the very process.  The  ap- proach should not incur the criticism that it was calculated to  expose an able and courteous judge to  public  indignity even  before  the  allegations were examined  by  the  forum constitutionally  competent to do so. We wish the  level  of the  debate both in and outside the Court was more  decorous and  dignified.  Propriety  required that  even  before  the charges are proved in the only way in which it is  permitted to  be  proved,  the Judge should not  be  embarrassed.  The constitutional protection to Judges is not for theft person- al benefit; but is one of the means of protecting the  judi- ciary  and  its  independence and is, /  therefore,  in  the larger public interest. Recourse to constitutional  methods’ must  be adhered to, if the system were to survive.  Learned Judge  in his letter to the Registrar-General which  he  de- sired  to  be placed the Court had, indeed,  expressed  deep anguish at the way the petitioners had been permitted  them- selves to sit in judgment over him and deal with him the way they did. RE: CONTENTION (I)     67. This argument suggests that the court should, having regard  to the nature of the area the decision of the  court and  its  writ  is to operate in, decline  to  exercise  its jurisdiction, granting it has such jurisdiction. It is urged that any decision rendered or any writ issued might, in  the last  analysis, become futile and infructuous as indeed  the Constitution of and investigation by the committee are  not, nor intended to be, an end by themselves culminating in  any independent legal consequences but only a proceeding prelim- inary to and preceding the deliberations of the House on the motion  for the presentation of an address to the  President for  the  removal of a Judge. The latter, it  is  urged,  is indisputably with in the exclusive province of the Houses of parliament  over which courts exercise no control or  juris-

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diction. The constitution of and the proceedings before  the committee  are, it is urged, necessarily sequential  to  and integral  with the proceedings in the Houses of  Parliament. SinCe the committee and its investigations have neither  any independent  existence nor separate  legal  effect-otherwise than as confined to, and for the purposes and as part of the possible  prospective proceedings in the Houses  of  Parlia- ment, the court should decline to exercise jurisdiction on a matter  which is of no independent legal consequence of  its own  and  which,  in the last analysis,  falls  and  remains entirely in an area outside the courts’ jurisdiction. It  is urged 76 that both from the point of view of infructuousness, propri- ety and futility, the court should decline the invitation to interfere even though that part of the proceedings  pertain- ing to the constitution of the committee might not  strictly be  within the exclusive area of Parliament. Courts,  it  is urged,  would  not allow its process to expect in  a  matter which will eventually merge in something over which it  will have no jurisdiction.     68.  The elements of infructuousness, it  is  suggested, arise in two areas. The first is, as is posited, what should happen  if  the Houses of Parliament choose to say  that  in their  view the motion has lapsed? Would the court  then  go into  the legality of the proceedings of the Houses of  Par- liament and declare the decision of the House void?     The second area of the suggested source of  infructuous- ness  is  as to the consequences of the  position  that  the Houses  of Parliament would, notwithstanding the  report  of the  committee,  be  entitled to decide not  to  present  an address  to the President to remove the Judge. It is, it  is said, for the House of Parliament to discipline the  Govern- ment  if the House is of the view that Government is  guilty of  an illegal inaction on the Speaker’s decision  as  ulti- mately the House has dealt with the committee’s report.     69. On the first point there is and should be no  diffi- culty. The interpretation of the law declared by this  court that  a  motion under section 3(2) of the  Judges  (inquiry) Act, 1968, does not lapse upon the dissolution of the  House is a binding declaration. No argument based on an assumption that  the  House would act in violation of the law  need  be entertained.  If the law is that the motion does not  lapse, it  is  erroneous to assume that the  Houses  of  Parliament would act in violation of the law. The interpretation of the law is within the exclusive power of the courts.     70.  So far as the second aspect is concerned,  what  is now  sought by the petitioners who seek the enforcement  and implementation of the Speaker’s decision is not a  direction to  the  committee to carry out the  investigation.  Such  a prayer may raise some issues peculiar to that situation. But here,  the  Union. Government has sought  to  interpret  the legal  position for purposes of guiding its own response  to the  situation and to regulate its actions on the  Speaker’s decision.  That understanding of the law is now found to  be unsound.     All  that is necessary to do is to declare  the  correct constitutional position. No specific writ of direction  need issue  to any authority. Having regard to the nature of  the subject matter and the purpose it is ultimately intended  to serve  all  that is necessary is to declare  the  legal  and constitu- 77 tional position and leave the different organs of the  State to  consider matters falling within the orbit of  their  re-

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spective  jurisdiction and powers. Contention I is  disposed of accordingly.     71.  In  the  result, for the  foregoing  reasons,  Writ Petition  Nos.  491 and 541 of 1991 are disposed of  by  the appropriate  declarations  of the law as  contained  in  the judgment. Writ Petition Nos. 542 and 560 of 1991 are dismissed.     Transfer  Petition  No.  278 of 1991  is  allowed.  Writ Petition  No. 1061 of 1991 is withdrawn from the Delhi  High Court. The transferred writ petition is also dismissed.     SHARMA,  J. I have gone through the erudite Judgment  of my learned Brothers, and I regret that I have not been  able to persuade myself to share their views. In my opinion,  all these petitions are fit to be dismissed.     The  stand  of the petitioners in W.P. (C) Nos.  491  of 1991 and 541 of 1991 is that the inquiry with respect to the alleged misbehaviour of Mr. Justice V. Ramaswami, the  third respondent  in W.P. (C) No. 491 of 1991, which was  referred to a Committee under the provisions of the Judges  (inquiry) Act,  1968  ought to proceed and accordingly  the  Union  of India must take all necessary steps.     2.   The  main arguments on their behalf have  been  ad- dressed  by Mr. Shanti Bhushan, Mr. Ram Jethmalani  and  Mr. R.K.Garg, all appearing for the petitioners in W,P. (C)  No. 491  of 1991, which has been treated as the main  case.  Al- though  in  substance their stand is similar, they  are  not consistent on some of the points debated during the  heating of  the case. They have been supported in general  terms  by Ms.  Indira  Jaising and Mr. P.P. Rao, the  learned  counsel representing  the Supreme Court Bar Association,  the  peti- tioner  in  W.P. (C) No. 541 of 1991, and for  the  sake  of convenience  the  petitioners in these two  cases  shall  be hereinafter  referred  to as the petitioners.  The  opposite point of view has been pressed by Mr. Kapil Sibal, on behalf of  Mrs. Raj Birbal, the petitioner in T.P. (C) No.  278  of 1991,  Mr. V.R.Jayaraman intervenor in W.P. (C) No.  491  of 1991  and  Mr.  Shyam Ratan Khandelwal,  the  petitioner  in W.P.(C)  No. 560 of 1991; and in view of their  stand,  they shall be referred to as respondents in this judgment.     3.  The Committee for the investigation into the alleged misbehaviour  of  the third respondent  was  constituted  on 12.3.1991 under the provi- 78 sions  of  the Judges (inquiry) Act, 1968  (hereinafter  re- ferred to as the Act) by Shri Rabi Ray, the then Speaker  of the Lok Sabha, not a party in W.P. (C) Nos. 491 of 1991  and 541 of 1991, but impleaded by Mr. Shyam Ratan Khandelwal  as respondent No. 1 in W.P. (C) No. 560 of 1991. The Lok  Sabha was dissolved the very next day, i.e. 13.3.1991.     4.   Mr.  Attorney General appearing on  behalf  of  the Union  of India has contended that this Court should  affirm the  views expressed by the Union of India in its  affidavit that  on  dissolution  of the last  Lok  Sabha,  the  Motion against  the third respondent lapsed and the  matter  cannot proceed further.     5.   According to the case of the petitioners, once  the Committee  was constituted, the entire inquiry must be  com- pleted in accordance with the provisions of the Act, and the stand of the Union Government that the Motion in this regard lapsed on the dissolution of the House is fit to be  reject- ed.  The Union Government, in the circumstances, is under  a duty  to  act in such manner by way of  providing  funds  et cetera, that it may be practically possible for the  Commit- tee  to complete its task. Since the obligation to  act  ac- cordingly, arises under the Act, this Court has full author-

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ity  to enforce the performance of the statutory  duty;  and having regard to the circumstances in the present case it is appropriate to exercise that power.     The  petitioners further pray that in the  meantime  the third respondent should not undertake to dispose of judicial matters,  and  since he has not himself  refrained  from  so doing, no judicial work should be allotted to him. The Chief Justice of India has also been impleaded as a party respond- ent  but  this Court while issuing Rule Nisi  after  hearing learned counsel for the parties, did not consider it expedi- ent  to  issue  notice to the Chief Justice.  A  prayer  for interim  direction in this regard was also rejected.  During the  hearing  of the cases another application to  the  same effect  was filed and was heard at considerable  length  and ultimately rejected by a reasoned order.     6.   Mr. Sibal, the learned counsel for the  respondents has challenged the maintainability of the writ petitions, on the  ground that the matter is not justiciable. It was  fur- ther  argued that since the Speaker proceeded to  admit  the Notice  of Motion initiated by 108 Members of the Lok  Sabha without reference to the House, the order of the Speaker was void, and the constitution of the Committee is ultra  vires. The Speaker’s order has been challenged also on the  grounds of  violation  of  principles of natural  justice  and  mala fides. So far as the effect of the dissolution of the 79 last  Lok Sabha is concerned the respondents have  supported the  stand  of  the Union Government  that  the  Motion  has lapsed, but consistent with their plea. of non-justiciabili- ty,  Mr.  Sibal has indicated that it is for  the  House  to decide this issue.     Long arguments were addressed by the learned counsel for the parties on the correct interpretation of Article  124(4) and (5) and the Act, and Mr. Sibal has contended that if the construction  suggested by him of the provisions of the  Act are  not accepted, the Act has to be struck down  either  in its entirety or in part as ultra vires the Constitution.     In  W.P. (C) No. 560 of 1991 Mr. Shyam Ratan  Khandelwal has,  inter alia, prayed for declaring the Judges  (Inquiry) Act,  1968  and the Rules framed thereunder as  ultra  vires Article 121 and 124(5) of the Constitution; for quashing the decision of the Speaker; and, for issuing a Writ of Mandamus to  the  Committee not to embark upon or  proceed  with  the inquiry. He also wants a declaration that the Chief  Justice of  India  cannot withhold allocation of work to  the  third respondent for discharging his judicial functions, and seeks for  consequential  directions in this  regard.  During  the course of his argument, Mr. Sibal, in reply to a query  from the  Bench, clarified the position that if his plea of  non- justiciability is accepted, all the petitions may have to be dismissed.     7.   It  is appropriate that the point relating  to  the jurisdiction of this Court, and for that matter of any court in India, is considered first. If the stand of the  respond- ents  is correct on this issue, it may not be  necessary  to deal  with  the other questions raised by  the  parties.  In support  of  his  argument, Mr. Sibal has  relied  upon  the provisions  of Article 122(2) of the Constitution read  with Article 93, and has urged that the present matter relates to the conduct of the business of the Lok Sabha and is included within  the  functions of regulating its procedure,  and  as such the Speaker who is a Member and officer of the  Parlia- ment cannot be subjected to the jurisdiction of any Court in respect  of  the  exercise of those  powers.  The  questions whether the Motion on the basis of which the present inquiry

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by  the  Committee has been ordered has lapsed  or  not  and whether  the inquiry should further proceed or not  are  for the  House  to determine, and its decision  will  be  final. Reference  was  also made to Article 100,  but  the  learned counsel  clarified his stand that in the present  context  a special majority as indicated in Article 124(4) will have to be  substituted for a simple majority mentioned  in  Article 100(1). It has been contended that the Speaker was not  free to  take  a decision by himself to refer the matter  to  the Committee for inquiry and that too without hearing the Judge concerned;  and  in any event his order is  subject  to  any decision 80 to  the  contrary  of the House arrived at,  at  any  stage. Emphasis  was  laid on the concept of  Separation  of  State powers amongst its three wings, and it was claimed that  all matters  within the House including moving of  motions,  ad- journment  motions  and debates are beyond  the  purview  of judicial  scrutiny. Counsel said that it does not  make  any difference that in the present case it is the Union  Govern- ment, which has taken a decision for itself on the  disputed issue; and the petitioners cannot use this as an excuse  for approaching the Court. The Court should refuse to  entertain the writ petitions on this ground, as it cannot be persuaded to  do  indirectly what it cannot do directly. The  crux  is that  the matter is in the exclusive domain of  the  Parlia- ment.     8.   Although  in my final conclusion I agree  with  the respondents  that  the courts have no  jurisdiction  in  the present  matter, I do not agree with Mr. Sibal’s  contention based on an assumption of the very wide and exclusive juris- diction of the Parliament in the general terms, as indicated during  his argument. His stand that the Speaker  could  not have taken a decision singly also does not appear to be well founded. He strenuously argued that since the matter  relat- ing  to  the removal of a Judge is from the  very  beginning within  the  exclusive control of one of the Houses  of  the Parliament  every  decision has to be taken  by  the  entire House  and if necessary a debate will have to be  permitted. As  a  result,  the bar on discussion in the  House  on  the Judges’  conduct will disappear from the initial  stage  it- self,  but that cannot be helped. He relied upon the  inter- pretation  of Mr. M.C.Setalvad on clauses 4 & 5  of  Article 124  as  stated  by him before the Joint  Committee  on  the Judges (inquiry) Bill, 1964 (being Bill No. 5 of 1964  which was ultimately dropped) and his view that the desired object of avoiding debate on the conduct of a Judge in the  Parlia- ment can be achieved only by the Speaker carefully  exercis- ing his discretion after taking into account the impropriety of such a debate.     9.  Although the powers of State has been distributed by the Constitution amongst the three limbs, that is the Legis- lature,  the  Executive and the Judiciary, the  doctrine  of Separation  of Powers has not been strictly adhered  to  and there is some overlapping of powers in the gray areas. A few illustrations  will  show that the courts’  jurisdiction  to examine  matters involving adjudication of disputes is  sub- ject to several exceptions. Let us consider a case in  which an individual citizen approaches the Court alleging  serious violation  of his fundamental rights resulting in grave  and irreparable  injury,  arising as a  consequence  of  certain acts,  and  the decision of his claim is  dependent  on  the adjudication of a dispute covered by Article 262 or  Article 363.  He  does not have a legal remedy  before  the  courts. Similarly  a Member of Parliament or of a State  Legislature

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who 81 may  have  a just grievance in matters  covered  by  Article 122(2)  or 212(2) cannot knock the doors of the courts.  Let us  take another example where a group of citizens  residing near  the border of the country are in imminent danger of  a devastating  attack from an enemy country in which they  are sure  to lose large number of lives besides theft  property. This  can be averted only by accepting the terms offered  by the enemy country, which are in their opinion reasonable and will be highly in the interest of the nation as a whole. The concerned authorities of the State, however, hold a  differ- ent  view  and  consider starting a war  immediately  as  an unavoidable strategy, even in the face of imminent danger to the  border area. On an application by the  aggrieved  citi- zens,  the  Court cannot embark upon an inquiry  as  to  the merits and demerits of the proposed action of the State  nor can it direct that the residents of the threatened area must be  shifted to some safe place before starting of  the  war. The examples can be multiplied. Generally, questions involv- ing  adjudication of disputes are amenable to the  jurisdic- tion of the courts, but there are exceptions, not only those covered  by specific provisions of the Constitution  in  ex- press  terms, but others enjoying the immunity by  necessary implication arising from established jurisprudential princi- ples involved in the Constitutional scheme. It was  observed by this Court in Smt. Indira Gandhi v. Raj Narain, [1976]  2 SCR  347  at page 415, that rigid Separation  of  Powers  as under  the  American Constitution or  under  the  Australian Constitution  does not apply to our country and many  powers which  are  strictly judicial have been  excluded  from  the purview of the courts under our Constitution.     10.  Judicial  power of the State in  the  comprehensive sense  of the expression as embracing all its wings is  dif- ferent  from  the judicial power vested or  intended  to  be vested  in the courts by a written Constitution.  The  issue which  arises in the present case is whether under the  Con- stitutional  scheme  a matter relating to the removal  of  a Judge of the superior courts (Supreme Court or High  Courts) is within the jurisdiction of the courts or in any event  of this  Court. On a close examination of the  Constitution  it appears  to me that a special pattern has been adopted  with respect to the removal of the members of the three organs of the  State---The Executive, the Legislature and the  Judici- ary--at  the highest level, and this plan having  been  con- sciously  included  in the Constitution, has to be  kept  in mind  in construing its provisions. The approach appears  to be that when a question of removal of a member of any of the three  wings at the highest level - i.e. the President;  the Members  of the Parliament and the State  Legislatures;  and the Judges of the Supreme Court and the High Courts -arises, it  is  left to an organ other than where  the  problem  has arisen, to be decided. 82     11. The President has to be elected by the members of an electoral college as prescribed by Article 54, in the manner indicated in Article 55. Since he has to exercise his  func- tions in accordance with the advice tendered by the  Council of  Ministers,  the matter relating to his  impeachment  has been  entrusted  by  Article 61 to the  Parliament.  In  the constitution  of  the two Houses of the Parliament  and  the Legislatures  of the States, the people of the  country  are involved more directly, through process of election and  any dispute  arising  therefrom is finally  settled  judicially. When it comes to a disqualification of a sitting member, the

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matter  is dealt with by Article 103 or 192 as the case  may be  and what is significant for the purpose of  the  present case  is that instead of entrusting the matter to the  rele- vant House itself, the Constitution has provided for a different machinery, not within the control of the  Legisla- ture.  The decision on such a dispute is left to the  Presi- dent,  and he is not to act on the advice of the Council  of Ministers,  but in accordance with the opinion of the  Elec- tion  Commission which has been held by this Court to  be  a Tribunal falling squarely within the ambit of Article 136 of the  Constitution  in  All  Party  Hill  Leaders  Conference v.M..A. Sangma, [1978] 1 SCR 393 at 411. Thus, the power  to decide a dispute is not to be exercised by the  Legislature, but lies substantially with the courts. Consistent with this pattern clause (4) of Article 124 in emphatic terms declares that  a Judge of the Supreme Court or the High  Court  shall not be removed from his office except on a special  majority of the Members of each House of Parliament. Both the  Execu- tive  and the Judiciary are thus excluded in  this  process. The provisions of the Constitution and the Act and  relevant materials  which ,viII be discussed later  all  unmistakably indicate this Constitutional plan.     12.  The scheme, as mentioned above, which according  to my  reading of the Constitution has been adopted, cannot  be construed as lack of trust in the three organs of the State. There  are  other relevant considerations to be  taken  into account  while framing and adopting a written  constitution, which include the assurance to the people that the possibil- ity  of  a subjective approach clouding the decision  on  an issue as sensitive as the one under consideration, has  been as far eliminated as found practicable in the situation. And where this is not possible at all, it cannot be helped,  and has  to  be  reconciled by application of  the  doctrine  of necessity,  which is not attracted here. Hamilton,  in  "The Federalist",  while  discussing the position in  the  United States,  observed that when questions arise as to whether  a person  holding very high office either in the Judiciary  or the  Legislature or the President himself has rendered  him- self  unfit to hold the office, they are of a  nature  which relates  chiefly  to the injuries done  immediately  to  the society itself. Any proceeding for their removal will, 83 for  this reason seldom fail to agitate the passions of  the whole  community  and divide it into parties  more  or  less friendly  or inimical to the person concerned. The  delicacy and  the magnitude of a trust which so deeply  concerns  the reputation and existence of every man engaged in the  admin- istration of public affairs speak for themselves.     13.  Mr.  Sibal has further relied on  Hamilton  stating that "the awful discretion which a court of impeachment must necessarily  have  to doom to honour or to infamy  the  most confidential  and the most distinguished characters  of  the community,  forbids the commitment of the trust, to a  small number  of persons." The counsel added that presumably  that is the reason that the question of removal of a Judge of the superior court has been exclusively entrusted to the parlia- ment  and  further in that spirit the Act requires  a  large number of Members of the parliament to even give the  Notice of  Motion.  Quoting from ’Harvard  Law  Review’  (1912-1913 vol.), counsel argued that judicial office is essentially  a public  trust,  and the right of the public to  revoke  this trust is fundamental. In a true republic no man can be  born with  a right to public office, Under such a system of  gov- ernment,  office,  whether elective or appointive, is  in  a sense  a  political privilege. The grant of  this  privilege

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flows from the political power of’the people, and so,  ulti- mately must it be taken away by the exercise of the  politi- cal  power  resident in the people. After referring  to  the view of many Jurists of international repute Mr. Sibal again came  back to "The Federalist", considering the  inappropri- ateness of the Supreme Court of United States of America  to be entrusted with the power of impeachment in the  following words:--  "It is much to be doubted whether the  members  of that  Tribunal  at all times be endowed with  so  eminent  a portion  of fortitude, as would be called for in the  execu- tion  of  so difficult a task, and it is still  more  to  be doubted whether they would possess the degree of credit  and authority,  which might, on certain occasions be  indispens- able towards reconciling the people to their decision". I am not sure whether these are the.precise considerations  which appealed  to  the framers of our Constitution to  adopt  the Scheme as indicated earlier, but there is no doubt that  the subject dealing with the removal of the very high  function- aries  in three vital limbs of the State,  received  special treatment  by  the Constitution. My  conclusion  is  further supported by the materials discussed below.      14.  Learned  counsel for the parties referred  to  the historical  background  of the relevant  provisions  of  the Constitution  and  the Act, as also  to  the  constitutional provisions of several other countries, as aid to the  inter- pretation  of the legal position in relation to  removal  of Judges of the superior courts. Mr. Sibal laid great emphasis on the evidence of Mr. 84 Setalvad and several other persons before the Joint  Commit- tee on the Judges (inquiry) Bill, 1964. His argument is that the  Bill was dropped as a result of the  opinion  expressed before  the Joint Committee, and consequently  another  Bill was  drafted which was ultimately adopted by the  Parliament as the 1968./Act. The provisions of the earlier Bill, objec- tions raised thereto, and the fact that the Act of 1968  was passed on a subsequent Bill, reconstructed immediately after the decision to drop the original Bill, are all  permissible aids  to the interpretation of the legal position which  has to  be ascertained in the present cases before us.  Although the  learned  counsel for the  petitioners  challenge  their admissiblity,  portions of the documents referred to by  Mr. Sibal were attempted to be construed on behalf of the  peti- tioners as supporting their stand. In my view, it is permis- sible  to take into consideration the entire  background  as aid to interpretation. The rule of construction of  statutes dealing  with this aspect was stated as far back as in  1584 in Heydon’s case: 76 E.R. 637, and has been followed by  our Court  in  a large number of decisions.  While  interpreting Article 286 of our Constitution, reliance was placed by this Court in the Bengal Immunity Company v. The State of  Bihar, [1955]  2  SCR 603 at 632 & 633, on Lord  Coke’s  dictum  in Heydon s case and the observations. of the Earl of  Halsbury in  Eastman  Photographic Material Company  v..  Comptroller General of Patents L R., [1898] A.C. 571 at p. 576 reaffirm- ing the rule in the following words:-               "My  Lords, it appears to me that to  construe               the statute in question, it is not only legit-               imate  but highly convenient to refer both  to               the former Act and to the ascertained evils to               which  the former Act had given rise,  and  to               the later Act which provided the remedy. These               three  being compared I cannot doubt the  con-               clusion".                   In  B.  Prabhakar Rao v. State  of  Andhra

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             Pradesh, [1985] Suppl. 2 SCR 573, the observa-               tions at p. 591, quoted below, are  illuminat-               ing:-               "Where  internal aids are not forthcoming,  we               can  always have recourse to external aids  to               discover the object of the legislation. Exter-               nal aids are not ruled out. This is now a well               settled  principle  of modern  statutory  con-               struction.  Thus ’Enacting History’  is  rele-               vant:  "The enacting history of an Act is  the               surrounding  corpus of public knowledge  rela-               tive to its introduction into Parliament as  a               Bill,  and  subsequent progress  through,  and               ultimate passing by, Parliament. In particular               it  is  the extrinsic material assumed  to  be               within the contemplation of Parliament when it               passed the Act." Again "In the period im-               85               mediately following its enactment, the history               of  how an enactment is understood forms  part               of  the  contemporanea expositio, and  may  be               held to throw light on the legislative  inten-               tion.  The later history may, under  the  doc-               trine that an Act is always speaking, indicate               how the enactment is regarded in the light  of               development  from  time  to  time".  "Official               statements by the government department admin-               istering  an  Act, or by any  other  authority               concerned  with  the Act, may  be  taken  into               account as persuasive authority on the meaning               of  its provisions". Justice may be blind  but               it is not to be deaf. Judges are not to sit in               sound proof rooms.               Committee   reports,  Parliamentary   debates,               Policy  statements  and public  utterances  of               official spokesmen are of relevance in  statu-               tory  interpretation.  But  ’the  comity,  the               courtsey  and  respect that ought  to  prevail               between the two prime organs of the State, the               legislature  and the judiciary’,  require  the               courts to make skilled evaluation of the extra               textual material placed before it and  exclude               the essentially unreliable. "Nevertheless  the               court, as master of its own procedure, retains               a residuary right to admit them where, in               rare cases, the need to carry out the legisla-               tor’s  intention  appears to the court  so  to               require".     With a view to correctly interpret the Act which was the subject matter of that case, the history and the  succession of events including the initial lowering the age of superan- nuation, the agitation consequent upon it, and the agreement that  followed the agitation were all taken into  considera- tion. I, accordingly, propose to briefly state the  relevant background of both the Constitutional provisions and of  the Act.     15. At the time of framing of the Constitution of India, the Constitutions of several other countries, which appeared to  be  helpful  were examined, and a  Draft  was  initially prepared. On the amendment moved by Sir Alladi  Krishnaswamy Iyyar  the relevant provision was included in the  Draft  in terms  similar  to  section 72(ii) of  the  Commonwealth  of Australia  COnstitution Act (1900) except the last  sentence in the following terms:- "Further  provision may be made by the Federal Law  for  the

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procedure to be adopted in this behalf."     When the matter was finally taken up by the  Constituent Assembly  the Debates indicate that there was a  categorical rejection  of  the suggestion to entrust the matter  to  the Supreme Court or a Committee of a 86 number  of  sitting Judges of the Supreme Court;  and  while doing  so, the law of the other Commonwealth countries  were taken  into consideration. So far the last sentence  of  the draft  was concerned, Sir Alladi explained the  position  by stating  "that  such  a provision does not  occur  in  other Constitutions, but there is a tendency to overelaborate  the provisions  on our side and that is the  only  justification for my putting in that clause."     16. Before further considering the Debates and the other steps  in flaming of the Constitution, it may be  useful  to appreciate  the relevance and importance of the point  which has an impact on the controversial issue before us.  Accord- ing to the petitioners, the question relating to the removal of  a  Judge comes to the Parliament only on  receipt  of  a report by the Committee under the Act. The Parliament or any of  its Houses, not being in the picture earlier,  does  not have  any control over the Committee, which is  to  function purely as a statutory body, and, therefore, amenable to  the jurisdiction  of this Court. If this stand is correct,  what was  the  position before 1968, when there was no  Act?  The question is whether the Parliament did not have any power to take  any action even if an inquiry in the alleged  misbeha- viour or incapacity of a Judge was imminently called for. In other  words whether the exercise of the power under  clause (4)  of Article 124 by the Parliament was dependent  on  the enactment of a law under clause (5) and until this condition was satisfied no step under clause (4) could be taken. If on the other hand the Parliament’s power was not subject to the enactment  of  a law, was it divested of  this  jurisdiction when  it passed an Act? On what principle could the  initial jurisdiction of the Parliament disappear in 1968? Since this aspect  has  a bearing, it was the subject  matter  of  some discussion during the arguments of the learned advocates.     17.  Mr. Sibal was emphatic in claiming that clause  (5) was  enabling in nature, and clause (4) could not be  inter- preted  as dependent on clause (5). He relied on Mr.  Setal- vad’s  evidence before the Joint-Committee of Bill No. 5  of 1964.  The  stand of Mr. Shanti Bhushan, instructed  by  Mr. Prashant  Bhushan, the Advocate-on-record on behalf  of  the petitioner in the leading case Writ Petition (C) No. 491  of 1991, has been that clause (5) was merely enabling, but  not in  the sense as stated by Mr. Setalvad in his evidence.  In the view of the latter, it is open to the Parliament  either to  follow  the  procedure laid down by an  Act  made  under clause  (5) or to ignore the same in any case and adopt  any other  procedure. In other words, even after the passing  of the  1968 Act, the Parliament can choose either  to  proceed according  to the said Act or to act independently  ignoring the same. Mr. Shanti Bhushan said that this is not permissi- ble. Once the 1968 Act was enacted, the Parliament is  bound to follow it, but earlier 87 it  was free to proceed as it liked. He, however, was  quite clear  in  his submission that the exercise of  power  under clause (4) could not be said to be conditional on the enact- ment  of a law under clause (5), and that to  interpret  the provisions otherwise would lead to the extraordinary  result that the Parliament was in a helpless condition for about 18 years till 1968, if a Judge was rendered unfit to  continue.

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I agree with the learned counsel.     18. The other learned advocates appearing for the  peti- tioners  did not advert to this aspect pointedly. The  stand of  Mr. Garg is that whether or not the third respondent  is removed, or whether the inquiry proceeds before the  Commit- tee  or  not, he must cease to function as a Judge,  as  his image  being  under  a cloud, must be cleared  so  that  the people may have trust in the judiciary. Mr. Ram  Jethmalani, the  other  learned counsel who appeared on  behalf  of  the petitioner  in Writ petition (C).No. 491 of 1991,  was  ini- tially of the view as Mr. Shanti Bhushan on the  co-relation of clause (4) and (5), but after some discussion, he  recon- sidered  the  position and took a positive  stand  that  the exercise  of power under clause (4) was dependent on  a  law being enacted under clause (5), and that the Parliament  was bound  to proceed in accordance with the provisions  of  the Act.     19.  Now coming back to the Debates, Mr. Santhanam  sug- gested an amendment for including more details to which  the answer of Sir Alladi was as follows:               "We  need  not  be more  meticulous  and  more               elaborate than people who have tried a similar               case  in other jurisdictions. I  challenge  my               friend  to say whether there is  any  detailed               provision for the removal of Judges more  than               that in any other Constitution in the world".     He requested the House to accept the general  principle, namely, that the President in consultation with the  Supreme Legislature  of  this  country shall have  that  right,  and assured that, "That does not mean that the Supreme  Legisla- ture will abuse that power". He rejected the idea of  making further  additions to the provision relating to the  framing of the law by saying, "To make a detailed provision for  all these  would be a noble procedure to be adopted in any  Con- stitution.  You  will not find it in any  Constitution,  not even  in the German Constitution which is  particularly  de- tailed, not in the Dominion Constitution and not even in the Act  of Settlement and the later Acts of British  Parliament which refer to the" removal of Judges". Some members strong- ly suggested that the Supreme Court of India or a number  of sitting Judges of the Court should be 88 involved  in the proceeding, to which Sir Alladi had  strong objection.  He  called upon the members, "not to  provide  a machinery consisting of five or four Judges to sit in  judg- ment  over  a Chief Justice of the Supreme  Court.  Are  you really  serious  about enhancing the dignity  of  the  Chief Justice  of India ? You are. I have no doubt about it".  The clause was ultimately drafted as mentioned above vesting the power  in  the "Supreme Parliament" as "there must  be  some power of removal vested somewhere". He pointed out that  the matter  was not being left in the discretion of  the  either House to remove a Judge, but ultimate soverign power will be vested in the two Houses of the Parliament and, "that is the import of my amendment". In this background, the Article was finally included in the Draft.     Although as was clear from the statements of Sir  Alladi as also the language used, the intention of the  Sub-commit- tee preparing the Draft was not to make clause (4) dependent on clause (5), still presumably with a view to allaying  any misapprehension  which  could have arisen by  including  the entire  provisions in one single clause, they  were  divided and  put  in two separate clauses and while  so  doing,  the language was slightly changed to emphasise the limited scope of the law. Clause (4) does not state that the  misbehaviour

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or  incapacity of the Judge will have to be proved  only  in accordance  with a law to be passed by the Parliament  under clause  (5). Clause (4) would continue to serve the  purpose as it does now, without any amendment if clause (5) were  to be removed from the Constitution today. There is no  indica- tion  of  any limitation on the power of the  Parliament  to decide  the  manner  in which it will obtain  a  finding  on misbehaviour or incapacity for further action to be taken by it. Clause (5) merely enables the Parliament to enact a  law for this purpose, if it so chooses. The word ’may’ has  been sometimes understood in the imperative sense as ’shall’, but ordinarily  it indicates a choice of action and not  a  com- mand.  In the present context, there does not appear  to  be any reason to assume that it has been used in its extraordi- nary  meaning. It is significant to note that  while  fixing the tenure of a Judge in clause (2) of Article 124,  proviso Co) permits the premature removal in the manner provided  in clause (4) without mentioning clause (5) at all. The signif- icance  of the omission of clause (5) can be appreciated  by referring  to  the language of clause 2(A)  of  Article  124 directing  that  the "age of a Judge of  the  Supreme  Court shall be determined by such authority and in such manner  as Parliament may by law provide".     On an examination of all the relevant materials, I am of the view that the exercise of power under clause (4) was not made conditional on the enactment of a law under clause (5), and the reason for inserting 89 clause  (5) in Article 124 was, as indicated by Sir  Alladi, merely for elaborating the provisions.     20.  The  other provisions with reference to  which  the matter  needs  further examination are Article  121  of  the Constitution and the Act of 1968. The object of Article  121 is  to prevent any discussion in Parliament with respect  to the  conduct of a Judge of the Superior Courts, except  when it  cannot be avoided. The Article,  accordingly,  prohibits such  a  discussion except upon a motion for  presenting  an ’address’ to the President for removal of a Judge. The point is that if the entire proceeding in regard to the removal of a Judge from the very initial stage is assumed to be in  the House,  does  the bar under Article 121 get lifted  at  that very  stage, thus frustrating the very purpose of the  Arti- cle.  There is a complete unanimity before us,  and  rightly so,  that  the  object of Article 121 to  prevent  a  public discussion  of the conduct of a Judge is in public  interest and  its  importance cannot be diluted. Mr.  Shanti  Bhushan elaborated this aspect by saying that any such discussion in the House is bound to be reported through the media and will thus reach the general public and which by itself, irrespec- tive of the final outcome of the discussion, will damage the reputation  of the Judge concerned and thereby the image  of the entire judiciary; and must not, therefore, be  permitted until  a report against the Judge after a proper inquiry  is available.  Mr.  Sibal also agreed on  the  significance  of Article  121  and  relied on the views  of  several  eminent international  jurists, but we need not detain ourselves  on this  point,  as there is no discordant  note  expressed  by anyone  before us. The question, however, is as  to  whether the object of Article 121 will be defeated, if clause (4) of Article 124 is construed as complete in itself and independ- ent  of clause (5), and clause (5) be understood  as  merely giving an option to the Parliament to enact a law, if it  so chooses; and further whether the inquiry before the  Commit- tee is within the control of the House of the Parliament  so as to exclude an outside interference by any other  authori-

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ty, including the courts.     21. It is true that the provisions of an Act control  or determine  the  constitutional  provisions,  but  where  the meaning of an Article is not clear it is permissible to take the aid of other relevant materials. Besides, in the present context,  where it is necessary to assess the effect of  the construction of the other provisions of the Constitution and of  the Act on Article 121, the Act provides useful  assist- ance;  and its importance has been greatly enhanced in  view of the points urged in the arguments of the learned  counsel for the parties before us. All the learned advocates for the petitioners  as also the Attorney General are positive  that the  Act  is a perfectly valid piece of legislation  and  no part of it is illegal or ultra vires. It is on 90 this premise that the writ petitions of the petitioners have been filed and the reliefs are prayed for. Mr. Sibal  repre- senting  the  respondents has halfheartedly  challenged  the Act, making it clear at the same time that if his  interpre- tation  of the provisions is accepted no fault can be  found with the Act. Besides, the foundation of the reliefs,  asked for in the writ petitions, is the Act and the inquiry there- under  and  if  the Act itself goes, the  reference  to  the Committee  of Inquiry itself will have to be held as  nonex- istent in the eye of Law and the writ petitions will have to be rejected on that ground alone. We must, therefore, assume for  the purpose of the present cases, that the Act is  good and on that basis if the petitioners be found to be entitled to  any  relief, it may be granted. I  am  emphasising  this aspect as the Act gives a complete answer to the main  ques- tion  as to whether the Committee is subject to the  control of  the  Lok  Sabha, and whether this  construction  of  the provisions defeats the purpose of Article 121.     22. The Judges (inquiry) Act, 1968 is a short  enactment containing  only seven sections. Section 1 gives  the  title and the date of commencement, Section 2 contains definitions and Section 7 deals with power to make rules. The expression "motion"  which has not been defined in the Act is  signifi- cant  in the scheme and naturally, therefore, has been  sub- ject of considerable discussion during the hearing of  these cases.  The Lok Sabha Rules flamed under Article 118 of  the Constitution  deal with "motions" in Chapter XIV. There  are separate rules of procedures for conduct of business adopted by  the  Rajya Sabha. In view of the facts of this  case,  I propose  to refer only to the Lok Sabha Rules. Section  3(1) of  the Judges (Inquiry) Act, 1968 states that if  a  notice of"motion" is given for presenting an address to the  Presi- dent  for the removal of a Judge, signed, in the case  of  a notice given in the Lok Sabha, by not less than 100 members, and in the case of a notice given in the Rajya Sabha, by not less than 50 members of the House, the Speaker or the Chair- man, as the case may be, after consulting such persons as he deems  fit,  as also such relevant materials  which  may  be available  to  him, either admit the "motion" or  refuse  to admit  the same. The manner in which this section refers  to "motion" in the Act for the first time without a  definition or  introduction clearly indicates that it is  referring  to that "motion" which is ordinarily understood in the  context of the two Houses of Parliament attracting their  respective rules. Section 3 does not specify as to how and to whom this notice of "motion" is to be addressed or handed over and  it is  not  quite clear how the Speaker suddenly comes  in  the picture  unless the Lok Sabha Rules are taken into  account. Rule  185 states that notice of "motion" shall be  given  in writing addressed to the Secretary General and its’ admissi-

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bility  should satisfy the conditions detailed in Rule  186. Rule 187 directs the 91 Speaker  to examine and decide the admissibility of  a  "mo- tion"  or a part thereof. Rule 189 says that if the  Speaker admits notice of a "motion" and no date is fixed for discus- sion of such "motion", it shall be notified in the  BUlletin with  the heading "No,Day-Yet-Named Motions". It is at  this stage  that 1968 Act by Section 3(1) takes over  the  matter and  asks the Speaker to take a decision for admitting  this "motion"  or refusing it after consulting such  persons  and materials  as he deems fit. The conclusion  is  irresistible that  the provisions of the Act have to be read  along  with some  of the Lok Sabha Rules. Rules 185, 186 and 187  should be  treated to be supplementary to the Act. Then comes  sub- section (2) of Section 3 which is of vital importance in the present  context. It says that if the "motions" referred  to in sub-section (1) is admitted, the Speaker "shall keep  the motion pending" and constitute a Committee for investigation into the allegations consisting of three members of whom one shall be chosen among Chief Justice and other Judges of  the Supreme  Court and another from among the Chief Justices  of the High Court.     23.  The situs where the "motion" is pending  is  almost conclusive on the issue whether the House is seised of it or not.  Unless  the "motion" which has to remain  pending,  as directed by Section 3(2) is outside the House and the Speak- er while admitting it acts as a statutory authority and  not qua  Speaker of the Lok Sabha, as is the case of  the  peti- tioners before us, the petitioners will not have any base to build  their case on. If the Speaker has admitted  the  "mo- tion"  in  the  capacity as the  Speaker  and  consequently, therefore,  representing  the House, and has  constituted  a Committee,  it will be entirely for him and through him  the House,  to  pass any further order if  necessary  about  the future  conduct  of the Committee, and not for  this  Court, for, the Committee cannot be subjected to a dual control. So the question to ask is where is the "motion" pending,  which is  promptly answered by the provisions in the Act,  by  de- claring  that  it remains pending in the  House.  Section  6 deals with the matter from the stage when the report of  the Committee  is  ready and sub-section (1) says  that  if  the report records a finding in favour of the Judge, "the motion pending  in the House" shall not be proceeded with.  If  the report goes against the Judge, then "the motion referred  to in  sub-section  (1)  of Section 2 shall,  together  with  a report  of the Committee, be taken for consideration by  the House  or the Houses of Parliament in which it is  pending". The  Act, therefore, does not leave any room for doubt  that the  "motion" remains pending in the House and  not  outside it.  This  is  again corroborated by the  language  used  in Proviso  to Section 3 (2) which deals with cases  where  no- tices  of"motion" under Section 3(1) are given on  the  same date  in both Houses of Parliament. It says that in  such  a situation,  no  Committee shall be  constituted  unless  the "motion" has been "admitted in 92 both  Houses" and where such "motion"has been  admitted  "in both  Houses", the Committe shall be constituted jointly  by the  Speaker and the Chairman. The rule making  power  dealt with in Section 7 is in the usual terms enumerating some  of the  subject matters without prejudice to the generality  of the power, and permits the Joint Committee of both Houses of Parliament  to frame the rules, and accordingly, the  Judges (Inquiry)  Rules, 1969 were made. Rule 2(e) of  these  Rules

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describes "motion" as motion admitted under Section 3(1)  of the Act. Supplementing the provisions of Section 6(2),  Rule 16(2)  provides  that "a copy of the motion  admitted  under sub-section  (1)  of  section 3 shall be  reproduced  as  an Annexure to such an address". Sub-rule (4) states that  "the address  prepared under subrule (1) and the motion shall  be put  to  vote together in each House of Parliament".  It  is clear that it is not an inadvertent reference in the Act  of the  "motion"  being pending in the  House;  the  provisions unmistakably  indicate that the Act and the  Rules  envisage and deal with a "motion" which is admitted in the House  and remains pending there to be taken up again when the date  is fixed  by  the  Speaker on receipt of the  report  from  the Committee. The language throughout the Act has been consist- ently  used  on  this premise and is not  capable  of  being ingored or explained away. Nowhere in the Act or the  Rules, there  is  any provision which can lend any support  to  the stand of the petitioners before us.     24. The scope of the Act and the Rules is limited to the investigation  in  pursuance of a "Motion" admitted  by  the Speaker. At the Conclusion of the investigation the  Commit- tee  has to send the report to the Speaker (or the  Chairman as  the case may be) along with a copy of the  original  Mo- tion. If the finding goes against the Judge, section 6(2) of the  Act directs that the Motion, the same original  Motion, shall together with the report be taken up for consideration by the House where the Motion is pending. The relevant  part of section 6(2) mentions:               "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......  in which it is pending".     Rule 16(4) states that the address and the Motion  shall be  put to vote together in each House of  Parliament.  What the Act and the Rules contemplate is the original Motion  to be  taken  up for consideration by the House,  and  if  this Motion is held to have exhausted itself on admission by  the Speaker,  as  has been urged on behalf of  the  petitioners, nothing remains on which the Act would operate. The  concept of  the  original Motion being pending in the House,  to  be taken up for debate and vote on the receipt of the report of the Committee, is the life and soul of the Act, and if  that Motion disappears nothing remains behind to attract the Act. This 93 idea runs -through the entire Act and the Rules, and  cannot be allowed to be replaced by a substitute. The existence  of a  Motion pending in the House is a necessary condition  for the application of the Act. Bereft of the same, the Act does not  survive. It is, therefore, not permissible to read  the Act  consistent with the stand of the petitioners  that  the House is not seised of the Motion and does not have anything to  do with the inquiry pending before the Committee,  until the  report is received. If clauses (4) and (5)  of  Article 124 are construed as suggested on behalf of the petitioners, the  Act will have to be struck down as ultra vires,  or  in any  event  inoperative and infructuous and on  this  ground alone the Writ Petitions are liable to be dismissed.     25. It has been contended that if the Motion is held  to be  pending  in the House on its admission,  the  object  of Article  121 shall be defeated. The apprehension appears  to be  misconceived.  The mandate of the  Constitution  against discussion  on  the conduct of a Judge in the House  is  for everybody  to  respect, and it is the bounden  duty  of  the Speaker to enforce it. He has to ensure that Article 121  is

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obeyed in terms and spirit, and as a matter of fact there is no  complaint  of any misuse during the last  more  than  41 years.  The  question, however, is whether it  will  not  be feasible for the Speaker to maintain the discipline, if  the Motion  on  admission becomes pending in the  House.  Before 1968 Act was passed, the motion, like any other motion,  was governed  by the Lok Sabha Rules, and Rule 189  enabled  the Speaker  to notify it as a No-Day-Yet-Named  Motion  without fixing a date, and to permit the matter to be discussed only at  the  appropriate  stage. After the Act,  what  was  left within  the discretion of the Speaker, has been replaced  by mandatory  statutory  provision, directing that  the  motion shall  remain pending in the House, to be taken up  only  on receipt of a finding of the Committee against the Judge. The pendency of the motion in the House, therefore, cannot be  a ground to violate Article 121.     26.  Mr Sibal, however, claimed that the members of  the House are entitled to express their opinion on the  proposed endictment from the very initial stage and as a part of  his argument  relied upon the statement of Mr.  Setalvad  before the Joint-Committee. Mr. Shanti Bhushan challenged the views of  Mr.  Setalvad on the ground that they  would  foul  with Article  121. I am afraid, the statements of  Mr.  Setalvad, referred  to  above, have not been  properly  appeciated  by either  side. The modified Bill, on the basis of  which  the 1968  Act was passed, had not been drafted by then  and  Mr. Setalvad  was  expressing his opinion on the  earlier  Bill, which  substantially vested the power of removal of a  Judge in the Executive, and kept the Parliament out of the picture until the receipt of a report on the 94 alleged  misbehaviour or incapacity. If that Bill  had  been passed, the effect would have been that the entire  proceed- ing  beginning with the initiation of the inquiry  and  con- cluding  with  the  report would  have  remained  completely outside the House, an interpretation which is being attempt- ed by the present petitioners before us, on the present  Act too.  The objection to the entrustment of the power  to  the Executive was mainly on the ground that the intention of the Article 124 to leave the removal of a Judge in the hands  of the Parliament would be frustrated. In answer to a query  of the  Chairman of the Committee, Mr. Setalvad said that as  a result of the provisions of the Bill (then under  considera- tion)  the Parliament would be completely kept out  until  a finding  of another body was received by the House and  this would  militate against the constitutional scheme.  In  this background when his attention was drawn to the bar of  Arti- cle 121 he replied that it was possible to prevent a  prema- ture discussion in the Parliament, by the Speaker exercising his authority with discretion. He referred to the Lok  Sabha Rules in this context and furher recommended for the Speaker to  be vested with larger powers. He was emphatic  that  the President  should not be entrusted with the matter, even  at the  initial stage, and that it should be left in the  hands of  the  Speaker to take appropriate  steps.  The  suggested substitution  of the Speaker (and the Chairman) in place  of the  President  was  in accordance with the  view  that  the matter  is within the exclusive domain of the two Houses  of the  Parliament which could exercise its powers through  the respective  representatives Speaker and the Chairman.  About Mr. Setalvad’s evidence I would like to clarify the position that  I am not treating his opinion as an authority,  and  I have taken into account the same as one step in the  history of  the present legislation starting from the original  Bill of 1964. The report of the JointCommittee (presented on 17th

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May,  1966) sets out the observations of the Committee  with regard to the principal changes proposed in the Bill.  Para- graph  17 of the Report dealing with clause (2) states  that the  expression "Special Tribunal" has been  substituted  by "Committee"  and "Speaker" and "Chairman" have been  brought in  "with a view to ensuring that the Committee may  not  be subject to writ jurisdiction of the Supreme Court & the High Courts". With respect to clause (3), the following  observa- tions of the Committee are relevant:               "The Committee are of the view that to  ensure               and  maintain the independence of the  judici-               ary,  the  Executive should be  excluded  from               every stage of the procedure for investigation               of the alleged misbehaviour or incapacity of a               Judge and that the initiation of any  proceed-               ing against a Judge should be made in  Parlia-               ment by a notice of a motion. The Committee               95               also  feel  that no motion for  presenting  an               address  to  the  President  praying  for  the               removal  of a Judge should be admitted  unless               the  notice  of such motion is signed  in  the               case of a motion in the Lok Sabha, by not less               than one hundred members of that House and  in               the  case of a motion in Rajya Sabha,  by  not               less  than fifty members of that  House.  Fur-               ther,  the Committee are of the  opinion  that               the  Speaker or the Chairman or both,  as  the               case may be, may after consulting such persons               as  they think fit and after considering  such               materials,  as may be available, either  admit               or  reject the motion and that if  they  admit               the  motion, then they should keep the  motion               pending and constitute a Committee  consisting               of  three members, one each to be chosen  from               amongst the Chief Justice and other Judges  of               the  Supreme Court, Chief Justice of the  High               Courts and distinguished Jurists,  respective-               ly". Paragraph  20  of the Report deals with clause (6)  and  the proposed changes, that were more consistent with the  motion being  pending in the House or Houses.  Ultimately,  another Bill on the lines suggested by the aforesaid Joint-Committee was drafted and adopted. Mr. Setalvad’s opinion is  relevant as an important step in this history of legislation and  can be referred to as such.     27. The wider proposition put forward by Mr. Sibal  that the  House  was seised of the matter so  effectively  as  to entitle every member to demand a discussion in the House  at any stage is, however, not fit to be accepted. This will not only violate Article 121, but also offend the provisions  of the 1968 Act. It is not correct to assume that if the  right of  the individual member to insist on immediate  discussion is denied, the consequence will be to deprive the Parliament of  the  control of the motion. When the  Speaker  exercises authority either under the Lok Sabha Rules or under the.1968 Act, he acts on behalf of the House. As soon as he ceases to be the Speaker, he is divested of all these powers. When  he acts  the House acts. It is another matter that he may  con- sult other persons before admitting the motion, and while so doing,  he  may consult the members of the House  also,  but without permitting a discussion in the House. The  consulta- tion,  which  the  Act permits, is private  in  nature,  not amounting to a public discussion while the object of Article 121  is to prevent a public debate. It may also be  open  to

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the Speaker to consult the House on a legal issue which  can be  answered  without reference to the conduct of  Judge  in question, as for example, the issue (involved in the present case) whether on account of dissolution of the old House the Motion  has lapsed and the Committee of Inquiry is  defunct. What is prohibited is not every matter 96 relating to the removal of a Judge; the bar is confined to a discussion  with  respect to the conduct of a Judge  in  the discharge of his duties.     28:  Mr. Shanti Bhushan strenuously contended that  such portion of the 1968 Act which direct or declare the  initial motion  admitted  by the Speaker to remain  pending  in  the House,  should  be interpreted as creating a  legal  fiction limited  for  the  purpose of ensuring that  the  bar  under Article  121  is not lifted prematurely. I do  not  see  any justification for placing this construction on the Act. This issue  could not arise with reference to the  original  Bill which was ultimately dropped, as under its scheme the matter could not have reached the Parliament before the report  the Special Tribunal was laid before the Houses under the Presi- dent’s  direction.  The  petitioners are trying  to  put  an interpretation on the present Act that may lead to the  same conclusion,  that is, that the Parliament does not  come  in the picture until the receipt of the report from the Commit- tee. This is wholly inconsistent with the original Bill  not Finding  favour  with the Parliament. But  apart  from  this consideration, let us assume that the petitioners are right, and  the matter does not reach the Parliament at all  before it  is ready for consideration on the basis of  the  Inquiry Report.  It  cannot be suggested that even at that  stage  a discussion  on the conduct of a Judge is banned; and  before this stage is reached there is no occasion for relying  upon Article  121 to prevent a discussion. The situation,  there- fore,  does  not require the aid of any legal  fiction.  The consequence of accepting the argument of Mr. Shanti  Bhushan will  be to render the aforesaid provisions of  the  statute wholly  superfluous.  Also, had it been a case  of  a  legal fiction  as suggested, it would attract the observations  of Lord  Asquith  in East End Dwellings Co.  Ltd  And  Finsbury Borough Council: 1952 A.C. 109, (followed in’this country in numerous  cases)  to the effect that if you  are  bidden  to treat  an imaginary state of affairs as real, you must  also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevita- bly  have flowed from or accompanied it; and if the  statute says  that you must imagine a certain state of  affairs,  it does  not say that having done so, you must cause or  permit your  imagination to boggle when it comes to the  inevitable corollaries  of that state of affairs. The alternative  sug- gestion of Mr. Shanti Bhushan that the motion, on its admis- sion,  having served its purpose, is  completely  exhausted, and  a  new motion is to be moved again by a member  on  the receipt of the Report from the Committee, has also no merit, for if the motion completely exhausts itself and there. fore does  not remain in existence any further, no problem  about the  lifting of the bar under Article 121 arises  for  being solved with the help of a legal fiction. An  attempt  was made by mr. Shanti Bhushan to  derive  some support 97 from  that part of clause (4) of Article 124 which  requires the  voting  in  the two Houses to take place  in  the  same session. The provision appears to me to be absolutely irrel- evant. The clause does not require that the entire  proceed-

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ing  with respect to the removal of a Judge commencing  with the  notice of motion has to be within the same session.  It refers  only  to  the voting part. A close  reading  of  the entire  Act indicates that the language therein, which  com- pletely  demolishes the petitioners’ case,  was  consciously chosen  to make the House seised of the matter,  and  conse- quently  it became necessary to include the  provisions  di- recting  the  motion to remain pending for  the  purpose  of preventing  a premature discussion. The Act has, thus,  very successfully  respected both Articles 124 and 121  in  their true spirit, by neatly harmonising them.     29. Let us consider another argument of the  petitioners that  by reason of the expression "on the ground  of  proved misbehaviour  or  incapacity"  occurring in  clause  (4)  of Article 124 it should be held that until an adverse  verdict of misbehaviour or incapacity by some other body is received by  the House, the matter does not come within its  purview. The body in contemplation of clause (4) may be an authority, completely unassociated with either House of the  Parliament or  the Speaker or the Chairman, and the Parliament may  not have  any  control over the same. Such  authority  would  be purely  statutory,  not amenable to the  discipline  of  the Parliament, but subject to the Court’s jurisdiction.  Merely for  the reason that a statute under clause  (5)  prescribes the  procedure in this regard by entrusting the  Speaker  to take a decision at the initial stage, he could not cease  to be  a  statutory authority. In other words, he acts  in  his individual  capacity under the power vested by the  law  and not  in a representative capacity. 1 do not find  this  con- struction of clauses (4) and (5) acceptable. This would,  in substance,  deny the Parliament the power to remove a  Judge exclusively vested in it by Constitution. Let us ignore  the present Act and consider another statute with provisions  in express  terms  on the lines suggested by  the  petitioners, that is, entitling the statutory authority to act  independ- ently  of the Parliament, the Speaker and the  Chairman.  If that  could be permissible it would lead to  the  Parliament being  reduced  to a helpless spectator,  dependent  on  the statutory  authority,  to act on or to ignore  a  complaint. This would be in complete violation of the intention of  the Constitution to vest the power to remove a Judge exclusively in  the  Parliament. It must, therefore, be  held  that  the Parliament is in control of the matter from the very  begin- ning  till the end, and it acted correctly in accepting  the objections  of  the Joint-Committee to  the  original  Bill, aforementioned, and in passing the Act of 1968, iii the form we  find  it.  By the introduction of the  Speaker  and  the requirement of a large number of members of either House  to initiate the matter, the 98 House  is brought in control of the proceeding  through  its representative  the  Speaker or the Chairman. It has  to  be noted that "the ground of proved misbehaviour or incapacity" is  necessary  only for putting the matter to  vote  in  the House under clause (4), and is not a condition precedent for initiating  a  proceeding and taking further steps  in  this regard.     30. Mr Sibal projected another extreme point of view  by contending that a finding of the Committee in favour of  the Judge  cannot  be held to be binding on  the  Parliament  on account  of  the  limited scope of a  statute  passed  under clause  (5).  There  is no merit in  this  argument  either. Clause (4) authorises the Parliament to act on the ground of proved misbehaviour or incapacity and clause (5) permits  it to pass a law to lay down the manner in which it may  become

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possible to do so. It is true that the Parliament can  exer- cise its power without formally framing a law. The House  in question could in the absence of a law, decide on the proce- dure  to  be followed in a given case but it  was  perfectly open  to it to pass an Act laying down a general code to  be followed until the Act is repealed or amended. It is a  well established practice for a large body to entrust  investiga- tions  to a smaller body for obvious practical reasons,  and such  an  exercise cannot be characterised as  indulging  in abnegation of authority. It could have asked a Parliamentary Committee  to enquire into the allegations or  employed  any other machinery for the purpose. The ratio in State of Uttar Pradesh  v. Batuk Deo Pati Tripathi and Anr., [1978]  2  SCC 102,  is  attracted here. In that  case  the  Administrative Committee of the High Court, constituted under the Rules  of the Court resolved that the District Judge should be retired compulsorily from the service, and the Registrar of the High Court communicated the decision to the State Government  and thereafter  circulated to all the Judges of the  High  Court for  their information. The State Government  passed  orders retiring  the  District  Judge, whereupon he  filed  a  writ petition  in the High Court. The matter was heard by a  Full Bench  and  the majority of the Judges held  that  the  writ petitioner  could not have been compulsorily retired on  the opinion  recorded  by the Administrative Committee,  as  the Full  Court was not consulted. The application  was  allowed and  a writ was accordingly issued. On appeal by  the  State Government  this  Court reversed the decision  holding  that Article 235 of the Constitution authorised the High Court to frame  the  rules for prescribing the manner  in  which  the power  vested  in the High Court had to  be  exercised,  and observed that though the control over the subordinate courts is vested constitutionally in the High Court by the Article, it  did not follow that the High Court has no power to  pre- scribe the manner in which that control may, in practice, be exercised; and in fact, the very circumstance that the power of  control,  which comprehends matters of  a  wide  ranging authority, vests in the entire body of Judges 99 makes  it imperative that the rules are flamed so  that  the exercise  of  the control becomes feasible,  convenient  and effective. The parliament is a far larger body than the High Court  and the observations apply to it with greater  force. So  long  as the statute enables the House to  maintain  its control either directly or through the Speaker, the entrust- ment  of the investigation does not amount to abdication  of power.  It is a case where the Parliament has taken a  deci- sion  to respect the verdict of the Committee in  favour  of the Judge, consistently with clause (4) and no fault can be .found.     31. It has been stated on behalf of the respondents that the question whether the Motion against the respondent no. 3 has  lapsed as a result of the dissolution of the old  House is  agitating the minds of the members of the Lok Sabha  and the  issue  is under consideration of the  new  Speaker.  In support, he produced a copy of the proceeding of the  House. If the present Speaker holds that the Motion has lapsed, and the  Committee does not have any duty to perform,  the  pro- ceeding  cannot be proceeded with any further. In reply  the learned  counsel for the petitioners claimed that after  the matter  is  entrusted to the Committee, neither he  nor  the Parliament  at  this  stage can undo the  admission  of  the Motion  by the earlier Speaker, or withdraw  the  investiga- tion.  If the petitioners are right, then what happens if  a member  of the Committee becomes unavailable by  any  reason

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whatsoever or another member renders himself unfit to be  on the Committee, say by reason of his apparent and gross bias, against or in favour of the Judge concerned, coming to light after  the formation of the Committee ? The answer  is  that the House which is in control of the proceeding is  entitled to  take  all necessary and relevant steps  in  the  matter, except  discussing the conduct of the Judge until the  stage is  reached and the bar under Article 121 is lifted.  If  on the other hand it is held that the Committee is an independ- ent  statutory body not subject to the control of the  House directly or through the Speaker, as the petitioners suggest, the  Act  may be rendered unworkable.  Besides,  this  would impute  to  the  Parliament to have done  exactly  what  the Constituent  Assembly refused to do  by accepting Sir  Alla- di’s impassioned appeal, referred to above in para- graph  19, not to lower the dignity of the Chief Justice  of India  by providing a machinery consisting of 5 or 4  Judges to  sit  in appeal over him. It may be noted here  that  the Constitution has considered it fit to entrust the inquiry in the  alleged  misbehaviour of a member of a  Public  Service Commission,  a constitutional functionary but lower in  rank than the Supreme Court, to the Supreme Court without associ- ating a Chief Justice of the High Court or any other  person lower  in rank. If the Committee is held to  be  functioning under the supervision and control of the parliament, with  a view  to aid it for the purpose of a proceeding  pending  in the  House, it will be the parliament which will be in  con- trol of the proceeding and not the Committee. 100     32.  Mr  Jethmalani was fervent in  his  exhortation  to construe the Constitution and the Act in a manner which will protect  the independence of the judiciary from the  politi- cians, and this, according to him, is possible only if  this Court comes to an affirmative conclusion on the question  of justiciability. There cannot be two opinions on the necessi- ty of an independent and fearless judiciary in a  democratic country  like  ours,  but it does not lead  to  the  further conclusion that the independence of judiciary will be  under a  threat, unless the matter of removal of Judges,  even  at the highest level, is not subjected to the ultimate  control of  Courts. The available materials unmistakably  show  that great care was taken by the framers     the  Constitution  to  this aspect and  the  matter  was examined  from  every possible angle,  before  adopting  the scheme  as indicated earlier. So far as the district  courts and  subordinate courts are concerned, the control has  been vested in the High Court, but when it came to the High Court and Supreme Court Judges, it was considered adequate for the maintenance  of  their independence to adopt and  enact  the Constitution as we find it. I do got see any reason to doubt the  wisdom  of the Constituent Assembly in  entrusting  the matter  exclusively in the hands of the Parliament and I  do not  have any ground for suspicion that the Members of  Par- liament or their representatives, the Speaker and the Chair- man, shall not be acting in the rue spirit of the  Constitu- tional provisions. Similarly, the task of enacting     a law under clause (5) was taken up seriously by consid- ering  every relevant aspect, and the process  took  several years before the Act was passed. do not propose to deal with this point any further beyond saying that the mandate of the Constitution  is binding on all of us, and I would close  by quoting the following words from Hamilton:               "If  mankind  were to resolve to agree  in  no               institution of government, until every part of               it had been adjusted to the most exact  stand-

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             ard of perfection, society would soon become a               general  scene  of anarchy, and  the  world  a               desert. Where is the standard of perfection to               be  found  ? Who will undertake to  unite  the               discordant  opinions of a whole community,  in               the  same judgment of it; and to prevail  upon               one conceited projector to renounce his infal-               lible criterion for the fallible criterion  of               his  more conceited neighbour? To  answer  the               purpose  of the adversaries of  the  Constitu-               tion,  they  ought to prove, not  merely  that               particular  provisions in it are not the  best               which  might have been imagined, but that  the               plan upon the whole is bad and pernicious".     33. It has not been suggested on behalf of the petition- ers  or  by  anybody else that it is open to  the  Court  to examine  the legality of a final decision taken by the  Par- liament under clause (4). Even after a verdict against the Judge is returned by the Committee, the  Parlia- ment or for that matter any of the two Houses can refuse  to vote in favour of the Motion for removal of a Judge, and the Court  shall not have any jurisdiction to interfere  in  the matter. Is it conceivable, in the circumstances, that at the intermediate  stage of investigation the Court has  got  the power to intervene ? The answer is in the negative for  more than  one reason. If the control of the House  continues  on the  proceeding throughout, which can he  exercised  through the  Speaker,  it cannot be presumed that the  Court  has  a parallel  jurisdiction,  which  may result  in  issuance  of contradictory  directions.  Besides,  the  Court  cannot  he expected to pass orders in the nature of step in aid,  where the  final  result  is beyond its  jurisdiction.  Any  order passed  or  direction  issued by this Court  may  result  in merely  an exercise in futility, and may cause a  situation, embarassing  both for the highest judicial  and  legislative authorities  of  the  country. The  Constitution  cannot  he attributed  with such an intention. I, therefore, hold  that the  courts  including  the Supreme Court do  not  have  any jurisdiction  to pass any order in relation to a  proceeding for removal of a Judge of the superior courts.     34.  Reference was made by the learned counsel  for  the parties to the Constitutions of several other countries, but I do not consider it necessary to discuss them excepting the Australian Constitution as they do not appear to be  helpful at all. As has been mentioned earlier the language of  Arti- cle  124  (4)  is similar to section 72(ii) of  the  Common- wealth  of  Australia Constitution Act  (1900),  except-with this  difference that the Australian  Constitution  Act.does not specifically provide for any law to he made for regulat- ing the procedure and investigation. However, the  constitu- tional and the legal position in Austraila is not helpful to resolve  the present dispute before us, as the  Commonwealth of  Australia  Constitution  Act (1900)  has  adopted  rigid Separation of Powers between the Executive, Legislature  and Judiciary (as has been observed by this Court on many  occa- sions  including  at page 415 in Smt. Indira Gandhi  v.  Raj Narain, [1976] 2 SCR 347, relented to above in paragraph  9. Reference  has been made by P.H. Lane in his  commentary  on the  Australian Constitution to the proceedings  which  were initiated for removal of Mr. Justice Murphy under section 72 (ii) of the Constitution Act. On account of sharp difference amongst  the members of the Select Committee of  the  Senate appointed  to inquire into the matter and a further  failure to resolve the situation by establishing a second  Committee and in view of certain other facts an adhoc legislation  was

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passed under the name of Parliamentary Commission of Inquiry Act,  1986.  Under this Act further steps were  being  taken when  Mr. Justice Murphy moved the High Court  of  Austraila for  an order of injunction challenging the validity of  the Act  and alleging that one of the members of the  Commission constituted under the Act (a 102 retired  Judge)  was disqualified on account  of  bias.  The application was dismissed on merits without adverting to the question  of justiciability.. This decision, to my mind,  is of no help to the petitioners before us, mainly  on account of the difference in  the  Constitutional scheme  of the two countries with respect to the  Separation of  Powers. The judicial powers there have been  exclusively vested  in the courts by section 71 of the Constitution  Act of  1900. Lane has at page 372 of his book opined that  sec- tion 72 (ii) may be non-justiciable, since it seems to place the  exercise  under the section in Parliament  itself.  He, however,  further proceeds to say that the Parliament  could seek  the High Court’s help, for example, in the  peripheral matter  of  the  meaning of misbehaviour  or  incapacity  in section 72(ii). He has also referred to certain other provi- sions  of  the Constitution Act, and analysed the  roles  of Parliament and Court with his comments. I do not consider it necessary to proceed further beyond saying that Mr.  Justice Murphy’s case does not provide any aid in deciding the issue in  the cases before us. Although our Constitution was  made after  examining the Constitutions of many other  countries, it  has  adopted a pattern of its own. The  learned  counsel also  placed  a large number of decisions; both  Indian  and foreign  and  since I have not found them relevant,  I  have refrained  from discussing them. None of the cases in  which this  Court has either interfered with the decision  of  the House  or has refused to do so, related to a proceeding  for removal of a Judge, and are clearly distinguishable in  view of  my opinion expressed above. I am also not  dealing  with the other points urged by Mr. Sibal, as I agree with him  on the  main issue of justiciability. I am avoiding to  express any opinion on the controversy whether the Motion lapsed  or not on the dissolution of the earlier House, as the issue is for the Lok Sabha to decide.      35.  In  view of the above findings this  Court  cannot pass any order whether permanent or temporary on the  prayer that the respondent No. 3 should not be allowed to  exercise his judicial powers. In the result all the F  writ petitions are dismissed. The prayer for transfer of Writ Petition No. 1061 of 1991 in Transfer Petition No. 278 of 1991 is allowed and  that Writ Petition is also dismissed. There will be  no order as to costs. N.P.V.                                      Petitions   dis- posed of. 103