# [1991] Supp. 2 S.C.R. 1

- **Citation:** [1991] Supp. 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1991-10-29
- **Bench:** B.C. Ray, L.M. Sharma, M.N. Venkatachaliah, B J.S. Verma, S.C. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1991-supp-2-s-c-r-1-11364
- **Pages:** 102

## Headnote

I
Constitution of India. 1950:
j
~
Articles 124(4) and (5) and 118-Removal of Judge of Supreme c
Court-Motion for presenting an Address to President and decision of
Speaker of Lok Sabha to. admit the motion and constittl(e a committee
under Judges (Inquiry) Act for investigation and proof of gro~nds-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 D
J.
118 operate in different fields-Question whether the motion lapsed or
not on the dissolution of Lok Sabha-Justiciability of
Artidles 124(4) and (5) and 121-Scope and interpretation of-Removal
of Judge of Supreme Court-Whether Justiciable-Enactment of law under Article 124(5) for regulating procedure for investigation and proof of E
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 jurisdic-
=\
ti on to. enquire into alleged misbehaviour or incapacity and restrain the
F
concerned Judge from exercising judicial functions-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 jimctions-Propriety of
'(
Article 32 -Public Interest Litigation-Inquiry Committee constiG
tuted by the Speaker of Lok Sabha under Judges (Inquiry) Act to investigate into the alleged misconduct of Judge of Supreme Court-Writ Peti-
~
tions seeking directions to Union Government to enable the Committee to
'
discharge its functions under the Act and to restrain the Judge from
performing judicial fanctions during pendency of proceedings before the
Committee-Maintainability of-Locus standi of Sub-committee on JudiH
2
SUPREME COURT REPORTS
[1991] SUPP. 2 S.C.R.
A
cial Accountability and Supreme Court Bar Association to sue-Whether
'CoArt could refuse to interfere on grounds of infructuousness, propriety
O/ld 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.
B
Judges (Inquiry) Act, 1968:
Constitutional validity of
Sections 3 and 6---Removal of Judge-Motion for presenting an
address to President admitted and Committee constituted by the Speaker
C
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 affiliaD
tion --Doctrine of statutory exceptions or necessity-Applicability of
Constitutional Law:
Separation of Powers under federal set-up-Court-Interpreter of
limits of authority of different organs of State-Judicial review-Incidental
· E
to and flowing from concept of written Constitution, the fundemental imd
higher law.
F
G
H
Interpretation of Constitution:
Constructions which strengthen the fundamental feature of the Constitution to be adoi ted-Rule of /aw-Whether a basic feature-Independence
of Judicia~Whether essential attribute of Rule of Law.
Aids to Construction-Constituent Assembly debates-Whether could
be relied upon-Comparative Study of Constitution of other Countrieswhether afford proper perspective--Resort to historical backgroundWhether permissible.
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 misbehaviourWhether Judge concerned entitled to pre-decisional opportunity of
hearing.
SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v U

## Text

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SUB-COMMITIEE ON JUDICIAL ACCOUNT ABILITY ETC. ETC.
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UNION OF INDIA AND ORS., ETC.
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OCTOBER 29, 1991
[B.C. RAY, L.M. SHARMA, M.N. VENKATACHALIAH,
B
J.S. VERMA AND S.C. AGRAWAL, JJ.]
I
Constitution of India. 1950:
j
~
Articles 124(4) and (5) and 118-Removal of Judge of Supreme c
Court-Motion for presenting an Address to President and decision of
Speaker of Lok Sabha to. admit the motion and constittl(e a committee
under Judges (Inquiry) Act for investigation and proof of gro~nds-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 D
J.
118 operate in different fields-Question whether the motion lapsed or
not on the dissolution of Lok Sabha-Justiciability of
Artidles 124(4) and (5) and 121-Scope and interpretation of-Removal
of Judge of Supreme Court-Whether Justiciable-Enactment of law under Article 124(5) for regulating procedure for investigation and proof of E
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 jurisdic-
=\
ti on to. enquire into alleged misbehaviour or incapacity and restrain the
F
concerned Judge from exercising judicial functions-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 jimctions-Propriety of
'(
Article 32 -Public Interest Litigation-Inquiry Committee constiG
tuted by the Speaker of Lok Sabha under Judges (Inquiry) Act to investigate into the alleged misconduct of Judge of Supreme Court-Writ Peti-
~
tions seeking directions to Union Government to enable the Committee to
'
discharge its functions under the Act and to restrain the Judge from
performing judicial fanctions during pendency of proceedings before the
Committee-Maintainability of-Locus standi of Sub-committee on JudiH
2
SUPREME COURT REPORTS
[1991] SUPP. 2 S.C.R.
A
cial Accountability and Supreme Court Bar Association to sue-Whether
'CoArt could refuse to interfere on grounds of infructuousness, propriety
O/ld 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.
B
Judges (Inquiry) Act, 1968:
Constitutional validity of
Sections 3 and 6---Removal of Judge-Motion for presenting an
address to President admitted and Committee constituted by the Speaker
C
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 affiliaD
tion --Doctrine of statutory exceptions or necessity-Applicability of
Constitutional Law:
Separation of Powers under federal set-up-Court-Interpreter of
limits of authority of different organs of State-Judicial review-Incidental
· E
to and flowing from concept of written Constitution, the fundemental imd
higher law.
F
G
H
Interpretation of Constitution:
Constructions which strengthen the fundamental feature of the Constitution to be adoi ted-Rule of /aw-Whether a basic feature-Independence
of Judicia~Whether essential attribute of Rule of Law.
Aids to Construction-Constituent Assembly debates-Whether could
be relied upon-Comparative Study of Constitution of other Countrieswhether afford proper perspective--Resort to historical backgroundWhether permissible.
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 misbehaviourWhether Judge concerned entitled to pre-decisional opportunity of
hearing.
SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v U.O.I.
3
Practice and Procedure:
A
,_
Removal of a Judge-Cor!ftitutional.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.
B
Words & Phrases: Word 'may'-When could be read as 'shall'.
-If
Upon a notice given by 108 members of the 9th Lok Sabha of a
. ...
Motion for presenting an Addl,"'ess to the President for the removal
I
of a sitting Judge of the Supreme Co,urt for the alleged misconduct
committed by him while he was functioning as Chief Justice of a c
High Court, the Speaker of the Lok Sabha admitted the Motion and
constituted a Committee consisting 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.
D
On its un4erstanding that the Motion as well as the decision of
the Speak~r the,reon had lapsed consequent on the dissolution of the
Lok Sabha, the Union government did not 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 ll(B)(i) of Part D of the II Schedule to the ConstiE
tu ti on.
Thereupon, a b">dy called the Sub-Committee on Judicial Accountability, claiming to be'a Sub-Committee constituted by an All
J.
India Convention on Judicial Accountability to carry forward the
task of implementing the resolutions of the conventions, and the F
Supreme Court Bar Association, seeking to prosecute the matter in
the larger public interest 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
G
..(
discharge its functions under the Judges (Inquiry) Act, 1968 and,
second, that during the pendency of the proceedings before the Committee
the concerned Judge should be restrained from performing judicial
functions and from exercising Judicial powers.
It was contended on behalf of the petitioners that pending business
H
lapsed on prorogation, and as a general practice the House was
A
B
c
D
E
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SUPREME COURT REPORTS
(1991) SUPP. 2 S.C.R.
usually prorogued before it was dissolved, but impeachment motions were sui~generis in their nature and, therefore, they dicJ 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 sote 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 proceedings, 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
· • noit
or penal proceedings and the Speaker would not decide anything' 1: ~1r.i' ·
against the Judge at that stage and would merely decid~.w~e'~ber '
the matter would bear investigation; that the constitutionarinacbinery 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 impec-·
cable integrity and character, without which the fundamental right
to move the court itself becomes barren and hollow, that the court
itself had the jurisdiction - 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 actuF
ally four.d the concerned Judge guilty of charges, there should be no
interdiction of bis judicial functions and that if such a finding was
recorded then thereafter till such time as the Motion 'for the presentation 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
G
from judicial functions.
H
Another Writ Petition was also filed by a practising 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 in'dia and seeking a declaration that ~he· Motion presented by 108 Members of Parliament for the r~moval of the Judges
..
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S,UB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. U.O.I.
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had lapsed with the dissolution of the Lok Sabha. The petitioner A
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 consti-
>r
tution of the Committee by Speaker.
A Transfer Petition was filed seeking the withdrawal by the B
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.
c
It 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 D
_(
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 E
manner in which he had admitted the motion smacked of malafldes
and since the Speaker had not entered appearance and denied ~he
allegations, 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 juris-
-'\
· diction, and that any decision rendered or any writ issued might, F
ultimately become futile and infructuous as the constitution of and
investigation by the committee 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
G
to the President for the removal (jf a Judge, which was indisputably
{
within the exclusive province pf the Houses of Parliament over which
courts exercised no control or jurisdiction.
On :behalf of the Union of India it was contended that a combined re~d-fng of Articles 107, 1118 and 109 would lead irresistibly to
H
the conclusi.on that upon dissolution of the House, all bills would
6
SUPREME COURT REPORTS
(1991) SUPP. 2 S.C.R.
A
laps~ sutiject 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 procedure and conduct of business; the
doctrine of lapse was a necessary concomitant of the idea that each
newly constituted House was a separate entity having_ a life of its
B
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 the House itself was not its
finai arbiter and the Court alone had jurisdiction to examine and
c
D
E
F
G
pronounce on the law of the matter.
Disposing of the cases, this Court,
HELD : By majority· Per Ray, J. (for himself, Venkatachaliah,
Verma and Agrawal, JJ)
1.1 Where there is a written Constitution which constitutes the
fundamental and in that sense a "higher law" and acts as a limitation upon the L~gislatur.e 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 fundamental and the higher law being the touchstone of the
limits of the powers of the various organs of the State which derive
power ancl authority under Constitution and that the judicial wing
is the interpreter of the Constitution and, therefore, of the limits 9f
authority of the different organs of the State. In a federal set-up,
the judiciary becomes the guardian of the Constitution. 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. [St G-H,
S2A, DJ
1.2 In interpreting the constitutional provisions concerning the
judiciary artd 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.
Independence of the judiciary is an essential attribute of Rule of
Jaw. [3t DJ
H
1.3 In construing the Constitutional provisions, the law and
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SUB-COMMITTEE ON JUDICIALACCOUNTABILITY v. U.O.I.
7
procedbre for removal of Judges in other countries afford a backA
ground 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 Constitutional Scheme. [31 G-H]
Bdrringtons Case [1830]; Terrell v. Secretary of State for the B
Colonies and Another,- [1953] 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; Shetreet 'Judges
C ·
on Trial' (1976); pp. 404-405; Rodney Brazier 'Constitutional Texts'
(1990) pp. 606-607; Gall 'The Canadian 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,
D
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, f'r(!ceeding and Usage of Parliament" (Twenty-first Edition London Butte..Worths
1989); MN~ Kaul and S.L. Shakdher in Practite and Procedure of E
Parliament", referred 'to.
2.1 It is not correct to say that the question whether a motion
bas 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 j~sticiable before a
Court. [29 C ,53 G]
2.2 The question whether the motion has lapsed is a matter to
be pronounced upon on the basis of the Constitution and the relevant rules. [53 E]
2.3 On such interpretation of the Constitutional provisions 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-GJ
Bradlaugh v. Gossett, (1884) 12 Q.B.O. 271, distinguished.
F
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8
SUPREME COURT REPORTS
[1991] SUPP. 2 S.C.R.
A
A.K. Gopalan v. The State of Madras, [1950] SCR 88 Special
B
c
D
Reference Case, (1965) 1 SCR 413, referred to.
Barton v. Taylor, [1886) 11AC197, Rediffuson (Hong Kong) Ltd.
v. Attorney General of Hong Kong, [1970] 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 findi~gs 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 Parliament and that process commences only on
proof of misbehaviour 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 QI
E
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 whi~h relate to procedure and
conduct of bu~iness in Parliament. (61 B-C]
·
3.4 The validity of law enacted by the Parliament under clause
F
(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 on!y 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 reaG
son, 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
H
in the matter at this stage docs not arise. (59 G-H, 60 A]
·
4.1 Article 121 suggests that the bar on discussion in Parliament with respect to the cor1duct of any Judge .is lifted 'upon a
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SUB-COMMITTEE ON WDICIAL ACCOUNTABILITY v. U.0.1.
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moti&n for presenting an address to the President praying for the
A
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 B
purpose of investigation and proof of misconduct or incapacity pre-
'
ceding the stage of motion for removal on the ground of 'proved'
misbehaviour or incapacity under clause (4). [56 H, 57 A-B]
4.2 An allegation of misbehaviour or incapacity of a Judge has
---,,
to be ma.de, investigated and found proved in accordance with the c
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 D
of misbehaviour or incapacity and it being for presenting an ad-
-l
dress to the President praying for removal of the Judge, the bar on
discussion contained in Article· 121 is lifted and ~iscussion can take
~
place in the Parliament with respect to the conduct of the Judge;
and the further consequences would ensue depending on the outcome of the motion in a House of Parliament. If, however, the findE
ing 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,
~8-A-B]
_,,..
4.3 Thus prior proof of misconduct in accordance with the law F
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 which, the constitu-·
tional scheme and process for removal of a Judge remains inchoate.
[66 F]
G
./
4.4 The bar in Article 121 applies to discussion in Parliament
_.'
but investigation and proof of misconduct or incapacity cannot exelude such discussion. This indicates that the machinery for invest,igation and proof must necessarily be outside Parliament and n'ot
within it. In other words, proof which involves· a discussion of the
H
tondutt of the Judge must be by a body which is outside the limita-
10
SUPREME COURT REPORTS
(1991) SUPP. 2 S.C.R.
A
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 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 ~utside the Parliament and not within it. Parliament neither bas any role to play
B
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 misbehaviour or incapacity bas been
proved. The Judges (Inquiry) Act, 1968 enacted under article 124(5)
itself indicates that the Parliament so understood the integrated
C
scheme of Articles' 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 exclusivity of its jurisdiction, but ·the Constitutional Scheme itself which by enacting clauses
D
(4) and (5) simultaneously indicated that the stage of clause (4) is
reached and the process thereunder commences only when the alleged misbehaviour or incapacity is proved in accordance with the
law enacted under clause (5). ,Jt is only then that the need for discussing a Judge's conduct in the Parliament arises and, therefore,
the bar under Article 121 is lifted. [60 D-E)
E
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H
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 misbehaviour or incapacity
bas 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), indicating that 'investigation ·and pr~of' 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 enaeted law and not the parliamentary practice wbica may be altered by each Lok Sabha. [61 F-HJ
·'
'
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 Sl?rvice Commission. The
expression in clause (1) of Article 317 used for describing the ground
...
SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. U.O.I.
11
of remoyal is 'the ground of misbeaviour' while in clause (4) of A
Article t'l4, it is, 'the ground of proved misbehaviour or incapacity'.
[62A]
5.J 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 reB
solved 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 Article
124(5) which may otherwise seem merely enabling becomes mandaC
tory. The exercise of the power is rendered obligatory. The use of
t,he 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 ~isbehaviour or incapacity 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.
D
Erederic Guilder Julius v. The Right Rev. The Lord Bishop of
Oxford; the Rev. Thomas Tel/usson Carter, [1879-80] 5 A.C. 214 at
E
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' notwithstanding use of that expression in
F
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 parliamei;itary and the authority
G
to make such a complaint is given to Members of Parliament. Moreover,
the enactment under Article 124(5) cannot be a safe guide to deter-
·mine the scope of Article 124(5). [64 A-CJ
6.1 Article 124(5) does not operate in the same field as Article
118 relating to procedure and conduct of business in Parliament.
H
[61Cl
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6.2 Article 118 !s a general provision conferring on each House
B
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G
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 provision intended to regulate the procedure for removal of a Judge under
Article 124(4), which is not a part of the normal business of the
House but is in the nature of special business. It covers the entire
field relating to removal of a Judge. Rules made under Article 118
have no application in this field. [64 H, 65 A)
6.4 Article 124(5) has no comparison wi"th 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 war,
not necessary and even in the absence of such a provision, a law
made under Article 124(5) will override the rules made under Artlcle 118 and sh1dl be binding on both the Houses of Parliament. A
violatioμ of such a law would constitute illegality and could not be
immune from judicial scrutiny under Article 122(1). (65 B-CJ
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 thereunder exclude the operation of Article 118 in this area.
[49 FJ
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. [SO HJ
7.3 In the constitutional area of removal of a Judge, the law
H
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-
SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. U.O.I.
13
tion of repugnance could arise to the extent the field is covered by A
the I.aw under Article 124(5). [51 CJ
"'1
State of Punjab v. Sat Pal Dang & Ors, [1969] 1SCR478, relied
on.
8.1 "fhe Judges (Inquiry) Act, 1968 reflects the constitutional B
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 c1
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. The provisions of the Judges (Inquiry) Act
do not foul with the constitutional scheme. [65 B-C, 64 CJ
D
.J
8.2 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 E
and privileges of the House. The Judges (Inquiry) Act, 1968 is colistitutional and is intra vires. [66 G-H]
9.1 The Judges (Inquiry) Act, 1968 is law enacted under Arti-
. l
cle 124(5) which provides against d~ctrine of lapse .
9.2 The effect of sections 3(1) and (2) and 6(2) of the Judges F
(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
G
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effect of dissolution of the House can or should be imported. [50 G]
~ .,
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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 H
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[1991) SUPP. 2 S.C.R.
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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 Parliament. [51 DJ
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,
B
as a matter of right, entitled to a notice. The scheme-of the statute
.and the rules made thereunder by necessary implication, exclude
such a right. But that may not prevent the Speaker, if the facts and
circumstances placed before him indi.cate that hearing the Judge
himself ipight not be inappropriate, might do so. But a decision to
admit the' motion and constitute a Committee for investigation withe out affording such an opportunity does not, by itself and for that
reason alone, vitiate the decision. (68 E-GJ
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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 confidence 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
niembers and restrain the Judge from exercising judicial functions
is besf"t 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 HJ
Sampath Kumar & Ors. v. Union of India & Ors, [1985J 4 S.C.C.
458, r~ferred to.
Corpus Juris Secundum, (Vol.48A), referred to.
11.t
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 procJss 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 misco1i1duct or incapacity is 'proved' in accordance with the law en~ted
for this purpose, it is difficult to accept that any such discussion on
the conduct of the Judge or any evaluation or inference as to its
-
•
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,
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SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. U.0.1.
15
merit is permissible according to law elsewhere except during invesA
tigati~n before the Inquiry ComJDittee constituted under the statute·
fof 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)
B
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 C
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
D
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 embarrassment 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 E
institution of judiciary it is desirable for the Judge to abstain from
judicial work till the final outcome under Article 124(4), he would
advise the Judge accordingly, and the concerv.ed 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 F
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. i\,.case of malafides.cannot be made out merely on
the groupd 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 authority to deal with the matter, doctrine of
statutory
1exceptions or necessity miglit be invoked. [74 B-C)
G
13. T .. e law as ·to standing to sue in public interest actions has H
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SUPREME COURT REPORTS
[1991] SUPP.2 S.C.R.
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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 a~d im1portance that it cannot be said that members of the Bar, and par-
'ticularly, the Supreme Court Bar Association have no locus standi in
the matter. An elaborate re-survey of the principles and precedeQts
B · over again is unnecessary. Suffice it to say that from any point o'f
view, the petitioners satisfy the legal requirements of the standing
to sue. [74 E-FJ
c
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H
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 restrain 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. 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 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-CJ
15.1
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. If the law is that the motion does not lapse, there can be no
o~casion 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
Jaw, since the interpretation of the law is within the exclusive power
of the courts. [76 EJ
·
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SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY v. U.O.I.
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_J5.2
If the House is not required to consider this question A
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.