# KRISHNA SWAMI AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [1992] Supp. 1 S.C.R. 53
- **Court:** Supreme Court of India
- **Decided:** 1992-08-27
- **Bench:** J.S. Verma, N.M. Kasliwal, K. Ramaswamy, K.J. Reddy, S.C. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-swami-and-ors-v-union-of-india-and-ors-11636
- **Pages:** 55

## Headnote

Constitution of India, 1950: Articles 32 & 124(4) (5).
A
B
Supreme Cowt Judge-Proceedings for removal-Public Interest LitigaC
tio1t-Writs challenging the removal proceedings by Advocate and a member
of Lok Sabha-Locus standi and maintainability of-Petitions plea of reconsideration of earlier judgment-Pennissibility of-Non-impleadment of judge
concemed-Effect of
On February 27, 1991 a notice of motion signed by 108 members of
the 9th Lok Sabha was presented to the speaker to initiate proceedings
against Hon'ble Mr. Justice V. Ramaswami, a sitting Judge of Supreme
C11!'rt, alleging commission of financial irregularities in the discharge of
D
his aiJministrative duties as Chief Justice of the Punjab and Haryana High
Court. The speaker admitted the motion and constituted an Inquiry ComE
mittee under section3(2) of Juilges (Inquiry) Act, 1968. The 9th Lok Sabha
was dissolved on March 13, 1991. The Sub-Committee on Judicial Accountability filed a writ petition in this Court under Article 32 of the Constitution and a host of writ petitions ensued, which were disposed of by a
Constitution Bench reported in the Sub-Committee on Judicial AccountF
ability v. Union of India, [1991] 2 S.C.R. 741, in which this Court declared
that the motion admitted by the Speaker of the 9th Lok Sabha is valid; his
action under the Act is outside the Parliament, the motion did not lapse,
and the Union of India was directed to notify constitution of the committee
under Section 3 (2) of the Act. Pursuant thereto, a notification was issued
by the Central Government. The Secretary to the Inquiry Committee G
issued notice in Form I of the Juilges (Enquiry) Rules, 1969 on January
14, 1992 communicating definite charges and requested Mr. Justice V.
Ramaswami to put in his written statement of defence on or before
February 4, 1992 and to appear either in person or through counsel on
February 10, 1992 along with his evidence. On request, two MPs, SCJA H
53
(
54
SUPREME COURT REPORTS [1992j SUPP. 1 S.C.R.
A
and the petitioner were permitted only to assist the Advocate of the
Committee to prove the case against the Judge and to keep secrecy of the
facts and the procerdings. The petitioner's insistence to prove the innocence of the Judge was not acceded to.
B
Two petitions were filed in public interest and the primary relief
claimed in both these petitions was for reconsideration of the earlier
Constitution Bench decision in Sub-Committee on Judicial Accountability
and for accepting the view expressly rejected in the majority opinion
therein. The petitioner (in W.P. 140 of 1992) filed a writ petition for
quashing the notice o( motion admitted by the Speaker and the charges
C framed by the committee against the Judge. The connected writ petition
(No. 149/92) was filed by a member of the 10th Lok Sbbba and an Advocate
known to the Judge for Jong claiming the same relief as in the other
petition. Besides the alternative prayer In this writ petition was to quash
the proceedings of the Inquiry Committee on the ground that there were
D illegalities in the procedure adopted by the Inquiry Committee in conducting the inquiry against the Judge. This petition came up for bearing before
a Division Bench of three learned Judges which by its order dated 27.2.92
ordered that having regard to the importance of the questions raised, the
matter be referred to the Chief Justice of India for constituting a Constitution Bench. Accordingly, a Bench of five Hon'ble Judges was constituted
E to hear both the petitions.
During the hearing of these petitions, two preliminary points viz.,(l)
Tenability of the plea for reconsideration of the decision in Sub-Committee
on Judicial Accountability v. Union of India & Ors., [1991] 4 S.C.C. 699 at
F the instance of the petitioners; and (2) maintainability of the petitions for
reliefs claimed for the benefit of the Judge concerned without impleadlng
him as a party arose for consideration.
· On behalf of the petitioner it was contended that (i) in view

## Text

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KRISHNA SWAMI AND ORS.
v.
UNION OF INDIA AND ORS.
AUGUST 27, 1992
[J.S. VERMA, N.M. KASLIWAL, K. RAMASWAMY, K.J. REDDY
AND S.C. AGRAWAL, JJ.j
Constitution of India, 1950: Articles 32 & 124(4) (5).
A
B
Supreme Cowt Judge-Proceedings for removal-Public Interest LitigaC
tio1t-Writs challenging the removal proceedings by Advocate and a member
of Lok Sabha-Locus standi and maintainability of-Petitions plea of reconsideration of earlier judgment-Pennissibility of-Non-impleadment of judge
concemed-Effect of
On February 27, 1991 a notice of motion signed by 108 members of
the 9th Lok Sabha was presented to the speaker to initiate proceedings
against Hon'ble Mr. Justice V. Ramaswami, a sitting Judge of Supreme
C11!'rt, alleging commission of financial irregularities in the discharge of
D
his aiJministrative duties as Chief Justice of the Punjab and Haryana High
Court. The speaker admitted the motion and constituted an Inquiry ComE
mittee under section3(2) of Juilges (Inquiry) Act, 1968. The 9th Lok Sabha
was dissolved on March 13, 1991. The Sub-Committee on Judicial Accountability filed a writ petition in this Court under Article 32 of the Constitution and a host of writ petitions ensued, which were disposed of by a
Constitution Bench reported in the Sub-Committee on Judicial AccountF
ability v. Union of India, [1991] 2 S.C.R. 741, in which this Court declared
that the motion admitted by the Speaker of the 9th Lok Sabha is valid; his
action under the Act is outside the Parliament, the motion did not lapse,
and the Union of India was directed to notify constitution of the committee
under Section 3 (2) of the Act. Pursuant thereto, a notification was issued
by the Central Government. The Secretary to the Inquiry Committee G
issued notice in Form I of the Juilges (Enquiry) Rules, 1969 on January
14, 1992 communicating definite charges and requested Mr. Justice V.
Ramaswami to put in his written statement of defence on or before
February 4, 1992 and to appear either in person or through counsel on
February 10, 1992 along with his evidence. On request, two MPs, SCJA H
53
(
54
SUPREME COURT REPORTS [1992j SUPP. 1 S.C.R.
A
and the petitioner were permitted only to assist the Advocate of the
Committee to prove the case against the Judge and to keep secrecy of the
facts and the procerdings. The petitioner's insistence to prove the innocence of the Judge was not acceded to.
B
Two petitions were filed in public interest and the primary relief
claimed in both these petitions was for reconsideration of the earlier
Constitution Bench decision in Sub-Committee on Judicial Accountability
and for accepting the view expressly rejected in the majority opinion
therein. The petitioner (in W.P. 140 of 1992) filed a writ petition for
quashing the notice o( motion admitted by the Speaker and the charges
C framed by the committee against the Judge. The connected writ petition
(No. 149/92) was filed by a member of the 10th Lok Sbbba and an Advocate
known to the Judge for Jong claiming the same relief as in the other
petition. Besides the alternative prayer In this writ petition was to quash
the proceedings of the Inquiry Committee on the ground that there were
D illegalities in the procedure adopted by the Inquiry Committee in conducting the inquiry against the Judge. This petition came up for bearing before
a Division Bench of three learned Judges which by its order dated 27.2.92
ordered that having regard to the importance of the questions raised, the
matter be referred to the Chief Justice of India for constituting a Constitution Bench. Accordingly, a Bench of five Hon'ble Judges was constituted
E to hear both the petitions.
During the hearing of these petitions, two preliminary points viz.,(l)
Tenability of the plea for reconsideration of the decision in Sub-Committee
on Judicial Accountability v. Union of India & Ors., [1991] 4 S.C.C. 699 at
F the instance of the petitioners; and (2) maintainability of the petitions for
reliefs claimed for the benefit of the Judge concerned without impleadlng
him as a party arose for consideration.
· On behalf of the petitioner it was contended that (i) in view or the
fact that the Division Bench's order dated 27.2.1992 refers to petitiot1er's
G contentions, which were mainly for reconsideration of the earlier Constitution Bench decision of Sub-Committee on Judicial Accountability, tt1.,se
petitions cannot be disposed of on preliminary points without going lnto
the merits of the contentions; (ii) the declaration of law on the subject can
be made in the absence of the judge concerned as a party with ..tlich
H declaration he would be bound; and that in view of the high office held by
K. SWAMI v. U.0.1.
55
the Judge It was consistent with the dignity of that office that he should A
not be a petitioner or even a party in a case filed in the Court in which be
himself is a Judge; (iii) the petitioners not being a party to the earlier
decision in Sub-Committee on Judicial Accountability the remedy of review
is not available to them.
Dismissing the petitions, this Court,
HELD: Per Venna J. (For himself and N.M. Kasliwal, Kl. Reddy and
S.C. Agrawal !!.)
B
1. Ordinarily, it is the person aggrieved and directly affected who C
must seek the relief himself unless disabled from doing so for a good
reason which permits someone else to seek the relief on bis behalf. In that
situation also the claim is made in substance by the person affected even
though the form be different and It Is so stated expressly. [68-G]
Murphy v. Lush and Ors., [1986) 65 A.L.R. 651, referred to.
D
2. The petitioner appears to be a busy body who has filed the petition
for no ostensible public purpose. His application to the Chief Justice of
India to make the wholly unjustified grievance that be was not orally heard
is unt.~nable apart from being misconceived. Public interest was served E
better by early conclusion of the bearing rather than its prolongation to
enable every individual, who so desired, to address the Court orally. In a
matter of this kind, it was not only unnecessary but also inappropriate to
permit the bearing being converted into a debate for participation of every
individual in the name of public interest. [70 G, 71 B·C)
F
The persistence of petitioner is not in public interest. There is no
special injury to blm alleged and, therefore, the right he claims is no better
than that available to every other advocate in tbe country. If the mere
membership of the Bar can provide the foundation for the right which
petitioner asserts to maintain a separate petition then on principle every
advocate in the country would be entitled to file a separate petition. Since G
it cannot be visualised that every Advocate as an individual can claim such
a right in public interest, it cannot be doubted that the claim made by
petitioner is clearly misconceived. It is necessary that this tendency is
curbed in public interest to avoid wastage of courts' time and abuse of its
process. [71-C, 6-H, 72A)
H
56
SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.
A
S.P.Gupta v. Union of India. (1981) Supp. S.C.C. 87, relied on.
B
c
3. The points raised in these petitions in the context of clauses (4)
and (5) of Article 124 of the Constitution and the law enacted under Article
124 (5) are bound to arise only in the context of a holder of the high office
of a Judge of the Supreme Court or a High Court and at a time when he
faces proceedings for his removal so that the decision thereon is bound to
affect the interest of the concerned Judge. If the occasion for requiring a
judicial adjudication arises in this context at a time when a particular
Judge is facing proceedings for his removal from office as in the present
case, the reason advanced by learned counsel for not even impleading him
as a party in the petition appears to be tenuous. Anyone facing such a
proceeding and wanting to challenge it !\as to do it himself. It is not
possible to predict the outcome of the decision on merits of the points
raised in these petitions and, therefore, the likelihood of a conclusion
adverse to the interest of the learned Judge being a possibility, an effective
D adjudication of the same in his absence is not feasible, which alone is a
sufficient reason to decline consideration of the points raised In the
petitions in these circumstances. [67 D·F]
E
F
Sub-Committee on Judicial Accountability v. Union of India· and Ors.,
[1991] 4 S.C.C. 699, referred to.
4. There is no reason why the Court should suo motu issue notice
to the Judge concerned when the petitioner persisted in not impleading
him even though the reliefs claimed are for the benefit of the learned Judge
alone. Also there is no cogent reason to examine the merits of the points
raised in the petitions professedly for the benefit of the Judge concerned
when the learned Judge himself has not chosen to raise the same.
[66 F, 67-A]
5. The argument that declaration of law on the subject can be made
in the absence of the learned Judge as a party with which declaration he
would be bound; and that in view of the high office held by the learned
G Judge, it was consistent with the dignity of that office that he should not
be a petitioner or even a party in a case filed in the Court in which he
himself is a Judge, is not acceptable. [67 B-C]
6. The plea for reconsideration of an earlier judgment is not to be
H entertained merely because the petitioner chooses to reagitate the points
K. SWAMI v. U.0.1.
57
concluded by the earlier decision. Interest of public good should be the A
guide and there must be compelling reasons for reconsideration of a
decision of this Court for public good. There is no good much less public
good served in reopening those questions which are concluded by a
decision of the Constitution Bench in Sub-Committee on Judicial Accountability particularly when the plea is not even made by the concerned Judge B
himself and the attempt to reagitate those points is related to the same
learned Judge facing the same proceedings for bis removal. [69 F -H, 70-A]
A.R. Antulay v. R.S. Nayak and Anr., [1988] 2 S.C.C. 602, distln·
gulshed.
Union of India & Anr. v. Raghubir Singh (Dead) by Lrs. etc., [1989] 2
S.C.C. 754 and The Keshav Mills Co. Ltd. v. Commissioner of Income-tax,
Bombay North, [1965] 2 S.C.R. 908, relied on.
c
7. The argument that the petitioners not being a party to the earlier
decision in Sub-Committee on Judicial Accountability, the remedy of review D
of that decision is not avilable to them, instead of supporting their claim
for seeking reconsideration of the jndgment, actually negatives it. Ir they
are not entitled to seek review, as they were not parties in the earlier
proceeding in which the judgment was rendered and the person directly
affected remains the same learned Judge who was a party then but not
now, these petitioners cannot have the right whicb·they seek to assert when E
the context remains the same. [70 D-E]
8. When the reference to a Constitution Bench is to bear the petition
as a whole and not merely decide certain question of law without even
Issuing Rule, the order of reference made by the Division Bench could not F
bind even that Bench much less a larger Bench. [68 C-D]
9. Accordingly, both these writ petitions are dismissed on the
preliminary grounds without going Into the points raised on merits. [75-B]
Per K Ramaswamy, J. (Partly dissen~ng).
1. Any member of the public having sufficient interest could maintain
an action for judicial redress from public inquiry arising out of the breach
of public duty or oflaw and seek enforcement ohuch public, constitutional
G
or legal duty. Strict rule of locus bas been relaxed and personal right
enforcement has been whittled down. In the public interest, therefore, any H
58
SUPREME COURT REPORTS [1992] SUPP. l S.C.R.
A person genuinely Interested to uphold independence of the judiciary and
the law would get sufficient Interest and acquires locus to seek to lay down
public law In that behalf. [83 A·C]
S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365, relied on.
B
1.1 The petitioner is an advocate and he is al•o a Member of the
c
Parliament. Therefore, it cannot be said that he is a pro bona publico. His
genuine Interest to uphold the dignity of the judiciary is not doubted. The
writ petition, therefore, should not be thrown out on the ground that the
petitioner lacks locus to litigate the lis. [82-F,83-C]
2. The Constitution confers In explicit language judicial review on
the Supreme Court and by operation of Articles 138, 139 and 140, enlarged
that power, to elongate and effectively adjudicate the questions doing fu:J
and eft'ectlve justice. The power of judicial review is to stamp out, excesses
In exercise of power, Injustice or miscarriage of justice. The decision of
D this Court is the last word on the interpretation of the Constitution and
the laws as law of the land under Article 141. The law laid down by this
Court operates as precedent. The law laid, thus, needs stability, continuity
and certainty. The judicial vacilatlon would undermine the respect for the
law and the utility of the very judirial process as well as its efficacy.
E Adherence to precedents, stare decisis, Is usually a wise policy for rule of
law unless there are clear, compelling and substantial reasons for its
reconsideration In the larger public interest. [83 H, 84 A·D]
Reconsideration of an earlier view Is not due to an act of judicial
fallibility but an Index of supremacy of law. So when all the relevant
F
provisions of law or material aspects of the case or binding precedent is
not brought to the notice of the court and its impact on the general
administration of law, It would need reconsideration. The obvious error
committed by the court leading to miscarriage of justice would need
correction by Article 142 or Section 114 read with Order 47 Rule 1 or
G
Sectioon 151 C.P.C. etc. But by Itself it Is not a licence to unsettle the
settled law or keep the law at variance at pleasure or whim. [84 D-EJ
Keshav Mills Co. Ltd. v. C./. T. Bombay, [1965] 2 S.C.R. 908 and
Union of India v. Raghubir Singh, [1989] 2 S.C.C. 754, referred to.
H
A.R. Antulay v. N.S. Naik, [1938) 1 Suppl. S.C.R. 1, distinguished.
K. SWAMI v. U.0.1.
59
2.1. The rule of law laid by this Court in Sub-Committee on Judicial A
Accountability's case Is clear, precise, certain and needs to maintain consistence. It is, therefore, not desirable to reopen the said ratio. [86·CJ
3. A judgment of this Court cannot be impugned or Its correctness
assailed byway of another writ petition on any ground whatever. Therefore,
the correctness of the judgment of this Conrt in Sub-Committee on Judicial B
Accountability's case is not amenable to the writ jurisdiction. [83 D-Ei
N.S. Mirajkar v. State of Maharashtra, [1966] 3 S.C.R. 745 and A.R.
Antulay v. N.S. Naik. [1988] 1 Suppl. S.C.R. 1, referred to.
3.1 It Is the decision and not the reasons In support thereof that C
would be conclusive and binds all parties. Therefore, even If there Is any
additional material that was subsequently discovered, It would be or little
avail to assail the correctness or the judgment except by way or review
before the Bench that decided Sob-Committee on Judicial Accountability's
case. [83-G]
D
4. The public are vitally Interested in the cleanliness or ·the pnblic
administration of justice which is of paramonnt importance. Public jnstice
is the hall mark of public good. A person genuinely or bona fide interested
In seeking declaration of law of public Importance would always get
sufficient interest and be entitled to seek declaration on that behalf which E
binds not only the State but every person, even If affected thereby, though
not eo nominee a party respondent to the proceedings. A relief In favour
of that person in bis absence could In an appropriate case also be granted.
[86 D·El
Makhanlal Waza and Ors. v.State of Jammu &Kashmir, [1971] l S.C.R.
749;S.P. Gupta v. Union of India, [1982] 2 S.~.R.365 andB. PrabhakaraRao
and Ors. v. State of A.P., 1985 Suppl. S.C.R. 432, referred to.
F
4.1. Though It would be ideal to lmplead the learned Judge as
respondent yet his absence too would stand to no Impediment to declare G
public hw which would bind him too. Jn that view, the petitioner being a
legal practitioner Is entitled to seek only declaration of law of certain
aspects. [87-B]
5. The Speaker merely performs, though as a statutory authority, a
constitutional function to admit or refuse to admit the motion to remove H
60
SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.
A
the Judge. The Constitution entrusted to the Speaker that responsibility
with the expectation that he acts as a reasonable man, with high degree of
responsibility, considers the grounds for the removal In the motion and
the record before taking a decision to admit the motion or reiusal thereof.
Existence of definite material or evidence in support of the grounds of the
B
motion, before initiation of the motion for removal of the Judge is, thus,
a condition precedent. But his decision to admit the motion to remove the
Judge of the Constitutional Court for absence of reasons stated or staring
from the record is not violative of Article 14 or Article 21 of the Constitu·
lion nor offends the principles of natnral justice. (90 D-E, 88 D, 90-B]
C
6. Before admitting the motion, It may be expected and may be
prudent that the Speaker may consult persons like the Chief Justice of
India, the fountain head of jndlciary, and the Attorney General of India.
But Constitution of the Committee, wlthont consultation of the Chief
Justice of India or his nomination of a!ly of the members is not per se
D illegal. However, it is desirable and salutary that the Speaker and Chairman of the Rajya Sabha may set up convention in this behalf. [87 G, 91-B]
7. The contention that the sitting Judge of this Court and the Chief
Justice of a High Court will not be perfoming their normal constitutional
duties when they act as members of the Committee under the Act unless
E
the President of India gives his consent and treats the function as part of
their duties by a notification, is not well founded. Giving consent is one
part. Performance of duties as members of the Committee is a different
facet. There is no constitutional obligation to obtain prior consent of the
President. But b<!fore entering upon the duties by a sitting Judge or this
F
Court and the Chief Justice of a High Court as Presiding omcer and
member of the Committee respectively, a notification, to be issued in this
behalf is necessary. [91 C-E]
8. The provisions In the Act and Rules indicate that the Parliament
Intended that the investigation into the misbehaviour or incapacity of the
G Judge, shall be confined only, between the advocate apppointed under
Section 3(9) of the Act and the learned Judge or his counsel who alone are
entitled to particpate and lead evidence in proof or disproof of the charges
and be heard. By necessary implication, the Act and the Rules exclude
participation or adduction of evideuce by any other person to prove the
H alleged misbehaviour or incapacity. Therefore, no third party has a right
•
K. SWAMI v. U.O.l.
61
to barge or butt in the proceedings and none is permitted to participate A
in the investigation nor entitled to adduce evidence for or against the
Judge. It is the Judge and the Advocate alone to participate and prove or
disprove the charge/charges and be heard. [92 D-E, 93 C-D)
9. The contention that procedure envisaged in Section 3(3), (4)
Section 4 are unconstitutional and ultra vires of the Article 124(4) of the B
Constitution is misconceived. The Act and the ·Rules provide built-in fair
proced1•re to prove the alleged misbehaviour or incapacity of a Judge. It
is akin to adversorial and trial of a civil suit and the Committee acts as
au independent 'ludicial statutory authority". The provisions are consis·
tent with Articles 124(4), 14 and 21 of the Constitution of India and they C
are not ultra vires of the Constitution. [94-E, 100-H, lOl·A)
10. The words "investigation" and "inquiry" used in Article 124(5), the
Act and the Rules are interchangeable and do not take different colours
from varied contexts but connote the same theme to prove/disprove mis· D
behaviour or incapacity charged against the Judge beyond resonable
doubt. The investigation contemplated in Article 124( 4) of the Constitution
or investigation or inquiry envisaged in the Act are synonymous and
interchangeable. [99-D, 100-C)
11. The elevation of a High Court Judge to the Supreme Court is E
only an elongation of the judicial functions in the apex Court with same
judicial fervour. From this perspective, the alleged misbehaviour of the
learned Judge, if proved, would remain germane even while the learned
Judge is a Judge of this Court. [101-F)
12. Every act or conduct or even error of judgment or negligent acts
by higher judiciary per se does not amount to misbehaviour. Wilful abuse
of judicial office, wilful misconduct in the office, corruption, lack of in·
tegrity, or any other offence involving moral turpitude would be misbehaviour. Misconduct implies actuation of some degree of mense rea by
F
the doer. Judicial finding of guilt of grave crime is misconduct. Persistent G
failure to perform the Judicial duties of the Judge or wilful abuse of the
office do/us ma/us would be misbehaviour. Misbehaviour would extend to
conduct of the Judge in or beyond the execution of judicial office. Even
administrative actions or omissions too need accompaniment of means rea.
[104 G·H, 105-A) H
62
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A
Corpus Juris Secundum, Vol. 1 58; Black's Law Distionary, 6th Edn.,
p.998; Encylopedic Law Distionary, 3rd Edn., p.720; P. Ramanathan Alyar's
'The Law Lexicon, Reprint Edn., 1987, referred to.
12.1. The society is entitled to expect higher degree of propriety and
probity in the judicial conduct from higher judiciary. However, there
B cannot be any fixed or set principles, but an unwritten code of conduct of
well established traditions are the guidelines for Judicial conduct. The
conduct that tends to undermine the public confidence in the character,
integrity and impartiality of the Judge must be eschewed. It is expected of
him to voluntarily setting forth wholesome standards of conduct reaffirmC Ing fitness to higher responsibilities. Even the private life of a judge must
adhere to standards of probity and propriety, acceptable to others. They
alone would receive confidence and respect from the public. [105 8-D]
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 149 of 1992.
D
(Under Article 32 of the Constitution of India.)
E
F
WITH
Writ Petition (Civil) No. 140 of 1992.
G. Ramaswamy, Attorney General, Kapil Sibal, Shanti Bhushan,
M.K. Ramamurthi, D.S. Tawatia, Hardev Singh, Indira Jaising, Ram Jethmalani, F.S. Nariman, E.M.S. Anam, Prashant Bhushan, P.H. Parekh, Raju
Ramachandran, Sunil Dogra, S.C. Sharma, A.M. Khanwilkar, Ms. A. Subhashini, Jitendra, Sharma, A.K. Srivastava, A Rein, Ranjit Kumar, Yashank
Adyaru for the appearing parties.
Petitioner-in-person in W.P. (C.) No. 140 of 1992.
The Judgments of the Court were delivered by
VERMA, J. Both these writ petitions under Article 32 of the ConstituG tion were heard together and are disposed of by this comm on judgment since
they involve for decision substantially the same points. In Writ Petition No.
149 of 1992, the petitioner M. Krishna Swami is a member of the Tenth Lok
Sabha from Tamil Nadu while in Writ Petition No. 140of1992, the petitioner
Raj Kanwar is an advocate of District Kamal in Haryana. Both these petitions
H are stated to have been filed in public interest and relate to the proceedings
Jl
K.SWAM!v. U.0.1.[VERMA,J.]
63
for the removal from office of Mr. Justice V. Ramaswami of the Supreme A
. Court of India initiated by the notice of motion given to the Speaker by 108
members of the Ninth Lok Sabha. It is unnecessary to state further facts herein
and it would suffice to say that both these petitions are a sequel to the decision
in Sub-Committee on Judicial Accountability v. Union of India and Others,
[1991] 4 SCC 699 - and were filed prior to Writ Petition No. 514of1992-Mrs. B
Sarojini Ramaswami v. Union of India & Ors.,- which has been disposed of by
us earlier today by a separate judgement pronounced therein giving all
relevant facts.
Petitioner Raj Kanwar (in Writ Petition No.140of1992) alleges that the
notice of motion by 108 members of the Ninth Lok Sabha, its admission by the C
then Speaker of Lok Sabha and constitution of the Inquiry Committee under
Section 3(2) of the Judges (Inquiry) Act, 1968 are unconstit11tional being
violative of Article 124 ( 4) of the Constitution. It is also asserted in that Writ
Petiton that the judgment in Sub-Committee on Judicial Accountability is
violative of Article 145(3) of the Constitution and hence void ab initio. On this
basis, the relief sought in Writ Petition No. 140 ofl992 is as under:
D
"(a) issue appropriate writ, order or direction quashing
(1) the notice of motion for presention of an address to
the President for the removal of Mr. Justice V. Ramaswami of the Supreme Court of India;
(2) its admission by the then Speaker of Lok Sabha and
(3) the formation of the Inquiry Committee under the
Judges (Inquiry) Act 1968 as being void ab-initio.
E
F
In Writ Petition No. 149 of 1992, the petitioner M. Krishna Swami
claims sufficient interest to file the writ petition as a member of the Tenth
Lok Sabha and as an advocate of Madras known to Mr. Justice V. Ramaswami for long. In this petition, it is alleged that certain illegalities in the G
procedure adopted by the Inquiry Committee prejudicial to Mr. Justice V.
Ramaswami have rendered the inquiry invalid. On the basis of the illegalities in procedure, alleged in the petition, the relief sought is for
quashing the proceedings of the Committee as invalid. This is the alternative prayer in the petition while the primary relief claimed in the petition
is subtantially the same as in the other petition to quash the notice of H
64
SUPREME COURT REPORTS (1992) SUPP. 1 S.C.R.
A
motion admitted by the Speaker of the Ninth Lok Sabha and the charges
framed by the Committee against Mr. Justice V. Ramasw:uni. Another
prayer made to hold that the Inquiry Committee is disqualified to conduct
the inquiry was given up at the hearing by Shri Sibal accepting the position
that the allegation of bias against the Committee could be examined only
B at the instance of Mr. Justice V. Ramswami who is not even a party in
either of these two writ petitions. In substance,, the primary relief claimed
in both these writ petitions is for reconsideration of the earlier Constitution
Bench decision .in Sub-Committee on Judicial Accountability and for accepting the view expressly rejected in the majority opinion therein. In Writ
Petition No. 149 of 1992, the alternative prayer for quashing the proceedC ings of the Inquiry Committee on the ground of illegality in the procedure
adopted by it for conducting the inquiry is alleged to be based on the
decision in Sub- Committee on Judicial Accountability which held that the
proceeding relating to inquiry conducted by the Committee is statutory in
nature subject to judicial review.
D
E
F
Subsequently, on conclusion of the investigation by the Inquiry Committee, Smt. Sarojini Ramswami, wife of Mr. Justice V. Ramaswami, filed
Writ Petition No. 514 of 1992 praying for a direction to the Inquiry
Committee to supply a copy of its report to Mr. Justice V. Ramaswami
before submitting it to the Speaker under Section 4(2) of the Judges
(Inquiry) Act, 1968 to enable the learned Judge to seek judicial review of
the finding of 'guilty', if any, against him made in the report of the
Committee. We have disposed of that writ petition by a separate judgment
pronounced earlier today. We are, therefore, confining the decision of
these petitions only to the points raised herein which survive for decision.
We had concluded the hearing of these writ petitions before the
hearing was commenced in Writ Petition No. 514 of 1992, but at the request
of Shri Kapil Sibal, senior counsel appearing for the petitioner in Writ
Petition No. 149 as well as in Writ Petition No. 514, we deferred the
decision in these writ petitions till now. In Writ Petition No. 149, we have
G heard Shri Kapil Sibal for the petitioner, the Attorney General of India for
the Union of India and Shri F.S. Nariman for the Inquiry Committee. In
addition, we have also heard Shri Shanti Bhushan and Shri Jitendra Sharma
who represented the interveners viz. Sub-committee on Judicial Accountability and Supreme Court Bar Association. Raj Kanwar, petitioner in Writ
H
Petition No. 140 of 1992 was directed to file the written submissions which
K.SWAMiv. U.O.I.[VERMA,J.]
65
have been considered by us. We considered it unnecessary to hear A
petitioner Raj Kanwar orally also in addition to his written submissions
since his case in the same which was urged by Shri Kapil Sibal as one of
his contentions and to some extent advanced also by the Attorney General
of India. The constraint of time because of which the hearing in these
matter was required to be concluded early impelled us to adopt this course, B
particularly on account of the fact that Writ Petition No. 140 of 1992 was
tagged on to Writ Petition No. 149 of 1992 to be heard along with Writ
Petition No. 149 of 1992 which was freated as the main matter by order
dated 23.3.1992.
It may now be mentioned that Writ Petition No. 149 of 1992 came C
up for hearing first before a Division Bench of three learned Judges which
by its order dated 27 .2.1992 on hearing Shri Kapil Sibal for the petitioner
mentioned his contentions and directed as under:
"Having regard to the importance of the questions raised
in the petition, we direct the Registry to place the papers
before the learned Chief Justice of India for constituting
a Constitution Bench to hear this petition."
'
These contentions were mainly for reconsideration of the earlier ConstituD
tion Bench decision in Sub-Committee on Judicial Acountability. This order E
is reported in JT 1992 (2) SC 63. This is I.ow this petition came to be listed
before a Constitution Bench for being heard by us. The order in Writ
Petition No. 140 of 1992 for tagging with Writ Petition No. 149 of 1992 was
made thereafter on 23.3.1992 because o( the identity of subject-matter of
the two petitions.
F
When the hearing commenced before us, the question of maintainability of these writ petitions for the reliefs claimed herein in the
absence of Mr. Justice V. Ramaswarni and tenability of the plea of reconsideration of the earlier decision at the intance of these petitioners who
were not parties thereto and are not directly affected thereby arose for G
consideration. On 6.5.1992 after Shri Kapil Sibal, learned senior counsel
for the petitioner had been heard for some time on the preliminary
question relating to maintainability of the petition, he sought time 'to
consider further whether the petitioner should move an application for
impleading Mr. Justice V. Ramaswami as a party'. The matters were
H
66
SUPREME COURT REPORTS l1992J SUPP. 1 S.C.R.
A
adjourned to the next day at the request of Shri Sibal. On 7.5.1992, Shri
Sibal informed us that the petitioner does not want to implead Mr. Justice
V. Ramaswami as a party and that he had decided to pursue the writ
petition as framed in its present form. In the other writ petition (W.P. No.
140} also, Mr. Justice V. Ramaswami is not a party and the petitioner's
B stand is the same; and, therefore, the question of maintainability of these
writ petitions for the reliefs claimed herein in the absence of the Mr.
Justice V. Ramaswami as party is common to both of them. These matters
were, therefore, heard on the question of maintainability indicating that in
case these petitions are held to be maintainable for the reliefs claimed
C herein in the absence of Mr. Justice V. Ramaswami as a party, then the
matters may be heard further on merits.
D
E
F
G
We have reached the conclusion that both these petitions must be
dismissed on this preliminary ground and, therefore, the question of hearing these petitions further does not arise.
In view of the fact that the petitioners in both these writ petitions
have persisted in pursuing the writ petitions without impleading Mr. Justice
V. Ramaswami as a party, in spite of ample opportunity given by us for the
purpose at the commencement of the hearing and even thereafter till its
conclusion, there is now no question of giving any further opportunity to
the petitioners for this purpose. Shri Sibal took the definite stand on
instructions of the petitioner that Mr. Justice V. Ramaswarni would not he
impleaded as a party in the writ petition and that the Court itself may give
him notice if it so desires. We do not find any reason why the Court should
suo motu issue notice to Mr. Justice V. Ramaswarni when the petitioner
persisted in not impleading him even though the reliefs claimed are for the
benefits of the learned Judge alone. Even otherwise we do not consider it
appropriate to examine any of the questions raised in these petitions at the
instance of these petitioners in view of our decision in Writ Petition No.
514 of 1992, the learned Judge himself having not chosen to do so.
There can be no doubt and it is rightly not disputed that the decision
on merits of the points raised in these writ petitions, assuming they could
be considered and decided on merits in these circumstances, would directly
affect the interest of Mr. Justice V. Ramaswarni in the proceedings for his
H removal from office which he is facing. In case the decision on merits is
K. SWAMI v. U.0.1. [VERMA,J.]
67
adverse to the interest of Mr. Justice V. Ramaswami, it would be open to A
him to contend that he is not bound by the decision to which he is not a
party irrespective of the merit of that contention: Moreover, there appears
to be no cogent reason to examine the merits of the points raised in the
petitions professedly for the benefit of Mr. Jusiice V. Ramaswami when
the learned Judge himself has not chosen to raise the same.
It was strenuously urged by Shri Sibal, supported by the learned
Attorney General, as well as the petitioner Raj Kanwar that declaration of
B
law on the subject can be made in the absence of the learned judge as a
party with which declaration he would be bound; and that in view of the
high office held by the learned Judge, it was consistent with the dignity of C
that office that he should not be a petitioner or even a party in a case filed
in the Court in which he himself is a Judge. We are unable to appreciate
or accept this argument.
The points raised in these petitions in the context of clauses ( 4) and (5) D
of Article 124 of the Constitution and the law enacted under Article 124( 5) are
bound to arise only in the context of a holder of the high office of a Judge of the
Supreme Court or a High Court and at a time when he faces proceedings for
his removal so that the decision thereon is bound to affect the interest of the
concerned Judge. If the occasion for requiring a judicial adjudication arises in
this context at a time when a particular Judge is facing proceedings for his
E
removal from office as in the present case, the reason advanced by learned
counsel for not even irnpleading him as a party in the petition appears to be
tenuous. Anyone facing such a proceeding and wanting to challenge it has to
do it himself. It is not possible to predict the outcome of the decision on merits
of the points raised in these petitions and, therefore, the likelihood of a conF
clusion adverse to the interest of the learned Judge being a possibility, an
effective adjudication of the same in his absence is not feasible which alone is a
sufficient reason to decline consideration of the points raised in the petitions
in these circumstances. We may mention that the learned Judge was a party in
the earlier proceedings-Sub-Committee on!udicia/Acountabi/ity v, Union of
India and Others, [1991)4SCC699.
G
Shri Sibal submitted that the order dated 27.2.1992 by a Division
Bench directing that the papers be placed before the learned Chief Justice
of India for constituting a Constitution Bench to hear this petition after
mentioning the contentions of Shri Sibal requires that we must decide those H
68
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A
contentions on merits anc!' we cannot dispose of the writ petition on this
preliminary point .without going into the merits of those contentions.
Without e.xpressly saying so, the suggestion of Shri Sibal is that we have
not option in the matter in view of the aforesaid order dated 27.2.1992 by
a Division Bench except to decide these contentions on merits. We may
B here mention that the contentions of Shri Sibal mentioned in the order
dated 27.2.1992 arc mainly for reconsideration of the decision in Sub-Committee on Judicial Acountability and amount to reagitating the very same
points which were considered and rejected by majority in the earlier
Constitution Bench decision. Apart from the question whether reconsideration of that decision can be sought in this manner, we have no doubt
C that the order dated 27.2.1992 made by the Division Bench could not bind
even that Bench much less a larger Bench in the. manner suggested by Shri
Sibal when the reference to a Constitution Bench is to hear the petition as
a whole and not merely decide certain questions of the law without even
issuing Rule. In our opinion, the course we have adopted was available to
D that Division Bench itself even after making the order dated 27 2.1992 if it
had heard the matter thereafter instead of referring the petition for hearing
by a Constitution Bench. This contention does not merit any further
consideration.
The two main preliminary points which arise in petitions are: ( 1)
E Tenability of the plea for reconsideration of the decision in Sub-Committee
on Judicial Accountability v. Union of India and Others, [1991] 4 SCC 699
- at the instance of the petitioners; and (2) Maintainability of the petitions
for reliefs claimed for the benefit of Mr. Justice V. Rarnaswami without
impleadi1.1g him as a party.
F
We have already indicated the impropriety of considering and deciding the question of grant of reliefs claimed in the petitions for the benefit
of Mr. Justice V. Rarnaswarni in his absence even as a party. Ordinarily, it
is the person aggrieved and directly affected who must seek the relief
himself unless disabled from doing so for a good reason which permits
G someone else to seek the relief on his behalf. In that situation also the claim
is made in substance by the person affected even though the form be
different and it is so stated expressly. The only reason given for the learned
Judge not doing so, by Shri Sibal, has been considered by us earlier and
not found sufficient to support his submission. We may also mention that
H in a similar situation Mr. Justice Murphy of the High Cour.t of Australia,
K. SWAMI"· U.0.l. [VERMA,J.)
69
the apex court of that country, while facing proceedings for his removal A
from office, had brought an action for injunction to restrain the proceedings against him in his own name. The judgment of the High Court of
Australia in that matter is Murphy v. Lush and Others, [1986] 65 ALR 651.
That case is referred only to indicate that the grievance in a similar
situation was made by the concerned Judge of the apex court himself and
not by someone else even without impleading him. We may also add the
subsequently in Writ Petition No. 514 of 1992, the petition was filed by the
wife of the learned Judge wherein the learned Judge gave a writing to the
effect that the writ petition was in substance for and on his behalf with the
decision in which he would be bound. There is nothing on record in these
petitions to indicate a similar stand by the learned Judge.