# SMT. SAROJINI RAMASW AMI v. UNION OF INDIA AND ANR

- **Citation:** [1992] Supp. 1 S.C.R. 108
- **Court:** Supreme Court of India
- **Decided:** 1992-08-27
- **Bench:** J.S. Verma, N.M. Kasliwal, K. Ramaswamy, K. Jayachandra Reddy, S.C. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-sarojini-ramasw-ami-v-union-of-india-and-anr-11608
- **Pages:** 118

## Headnote

Judges (Inquiry) Act, 1968: Sections 3(2), 4(1), (2)(3) and 6(1)(2)(3).
C
Judges (Inquiry) Rules, 1969: Rules 6, 8, 9, 10, 11.
Supreme Court Judge-Alleged misbehaviour, Financial improprities
and irregularities-Enquiry Committee Report of-Submission to Speake,._
Judge concemed whether entitled to copy of Report before submission to
Speake/<-fudge concemed-Whether entitled to opportunity of hearing before
D Parliament-Report of Inquiry Committee-Finding of 'Not guilty'- Effect
of-Finding of 'guilty'-Whether open to judicial review-Report of Enquiry
Committee-Whether can be equated with sanction given under Section 197
Cr.P.C.-Term of Enquiry Committee-Whether can be extended by Court.
E
F
Constitution of India, 1950:
Articles 121, 124(4)(5).
Supreme Court Judge-Process for removal-Order of removal passed
by President-Judicial review of-whether excluded.
Article 136-Tribunal-Test to determine-What is-Inquiry Committee
constituted under Judges (Inquiry) Act, 1968-Whether Tribunal.
Judicial Review-Nature and scope of
G
Administrative Law-Natural Justice-Violation of-Depends on facts
of each case-Violation cannot be examined in isolation.
Code of Criminal Procedure, 1973: Section 197.
Report of Inquiry Committee constituted under Judges (Inquiry) Act,
H
1968-Whether can be equated with sanction given under Section 197 Cr.P.C.
108
SMT. S. RAMASWAMI v. U.0.1.
109
Certain allegations of financial improprieties and irregularities were A
made against Mr. Justice V. Ramaswami in his capacity as the Chief
Justice of High Court of Punjab & Haryana prior to bis appointment as
a Judge of the Supreme Court of India by 108 members of the Ninth Lok
Sabha by notice of motion for presenting an ail.dress to the President for
his removal from office. The Speaker of the Ninth Lok Sabha admitted the
motion and constituted a Committee consisting of a sitting Jndge of this B
Court, Chief Justice of the High Court of Bombay and a retired Judge of
this Court as a distinguished jurist in terms of Section 3(2) of the Judges
(Inquiry) Act, 1968. However, on dissolution of the Ninth Lok Sabha, the
Union Government abstained from acting in aid of the decision of the
Speaker since it was of the view that the notice of motion as well as the C
decision of the Speaker to admit the motion and constitnte an Inquiry
Committee under the provisions of the Act bad lapsed with the dissolntion
of the Lok Sabha.
.
.
A body called the "Sub-Committee on Judicial Accountability" repre- D
sented by a Senior Advocate of this Court as its Convener and the Supreme
Conrt Bar Association filed Writ Petitions in this Court under Article 32
of the Constitution, praying inter alia for a direction to the Union of India
to take immediate steps to enable the lnqniry Committee to discharge its
functions nnder the Act. By its decision, in Sub-Committee on judicial
Accountability v. Union of India & Ors., [1991] 4 S.C.C. 699, the majority E
held (i) that a motion under Section 3(2) of the Act does not lapse upon
the dissolntion of the House; (ii) that the process for removal of a Judge
of the Snpreme Court comprises of two stages. The first stage is of
investigation and proof in accordance with the Jndges (Inquiry) Act, 1968
enacted under Article 124(5) of the Constitution by the Committee conF
stituted by the Speaker acting as a statutory authority under the Act and
the second stage commences after allegations of misbehaviour are found
proved. In the second stage when motion is moved, bar under Article 121
o" discussion in Parliament in respect of the conduct of the Jndge is lifted
and the process envisaged under Article 124(4) is attracted. The first stage
is snbject to judicial review, bnt the second stage is not subject to judicial G
review, ltthe process involved being parliamentary process.
Subsequent to the decisions of the Constitution Bench, the Committee constituted by the Speaker under the Act proceeded to inquire into the
allegations made against the Judge. On May 10, 1992, th

## Text

_Characters 0–39,960 of 283,938. This is a partial read: ask again with offset=39960 for what follows._

A
B
SMT. SAROJINI RAMASW AMI
v.
UNION OF INDIA AND ANR.
AUGUST 27, 1992
[J.S. VERMA, N.M. KASLIWAL, K. RAMASWAMY, K.
JAYACHANDRA REDDY AND S.C. AGRAWAL, JJ.]
Judges (Inquiry) Act, 1968: Sections 3(2), 4(1), (2)(3) and 6(1)(2)(3).
C
Judges (Inquiry) Rules, 1969: Rules 6, 8, 9, 10, 11.
Supreme Court Judge-Alleged misbehaviour, Financial improprities
and irregularities-Enquiry Committee Report of-Submission to Speake,._
Judge concemed whether entitled to copy of Report before submission to
Speake/<-fudge concemed-Whether entitled to opportunity of hearing before
D Parliament-Report of Inquiry Committee-Finding of 'Not guilty'- Effect
of-Finding of 'guilty'-Whether open to judicial review-Report of Enquiry
Committee-Whether can be equated with sanction given under Section 197
Cr.P.C.-Term of Enquiry Committee-Whether can be extended by Court.
E
F
Constitution of India, 1950:
Articles 121, 124(4)(5).
Supreme Court Judge-Process for removal-Order of removal passed
by President-Judicial review of-whether excluded.
Article 136-Tribunal-Test to determine-What is-Inquiry Committee
constituted under Judges (Inquiry) Act, 1968-Whether Tribunal.
Judicial Review-Nature and scope of
G
Administrative Law-Natural Justice-Violation of-Depends on facts
of each case-Violation cannot be examined in isolation.
Code of Criminal Procedure, 1973: Section 197.
Report of Inquiry Committee constituted under Judges (Inquiry) Act,
H
1968-Whether can be equated with sanction given under Section 197 Cr.P.C.
108
SMT. S. RAMASWAMI v. U.0.1.
109
Certain allegations of financial improprieties and irregularities were A
made against Mr. Justice V. Ramaswami in his capacity as the Chief
Justice of High Court of Punjab & Haryana prior to bis appointment as
a Judge of the Supreme Court of India by 108 members of the Ninth Lok
Sabha by notice of motion for presenting an ail.dress to the President for
his removal from office. The Speaker of the Ninth Lok Sabha admitted the
motion and constituted a Committee consisting of a sitting Jndge of this B
Court, Chief Justice of the High Court of Bombay and a retired Judge of
this Court as a distinguished jurist in terms of Section 3(2) of the Judges
(Inquiry) Act, 1968. However, on dissolution of the Ninth Lok Sabha, the
Union Government abstained from acting in aid of the decision of the
Speaker since it was of the view that the notice of motion as well as the C
decision of the Speaker to admit the motion and constitnte an Inquiry
Committee under the provisions of the Act bad lapsed with the dissolntion
of the Lok Sabha.
.
.
A body called the "Sub-Committee on Judicial Accountability" repre- D
sented by a Senior Advocate of this Court as its Convener and the Supreme
Conrt Bar Association filed Writ Petitions in this Court under Article 32
of the Constitution, praying inter alia for a direction to the Union of India
to take immediate steps to enable the lnqniry Committee to discharge its
functions nnder the Act. By its decision, in Sub-Committee on judicial
Accountability v. Union of India & Ors., [1991] 4 S.C.C. 699, the majority E
held (i) that a motion under Section 3(2) of the Act does not lapse upon
the dissolntion of the House; (ii) that the process for removal of a Judge
of the Snpreme Court comprises of two stages. The first stage is of
investigation and proof in accordance with the Jndges (Inquiry) Act, 1968
enacted under Article 124(5) of the Constitution by the Committee conF
stituted by the Speaker acting as a statutory authority under the Act and
the second stage commences after allegations of misbehaviour are found
proved. In the second stage when motion is moved, bar under Article 121
o" discussion in Parliament in respect of the conduct of the Jndge is lifted
and the process envisaged under Article 124(4) is attracted. The first stage
is snbject to judicial review, bnt the second stage is not subject to judicial G
review, ltthe process involved being parliamentary process.
Subsequent to the decisions of the Constitution Bench, the Committee constituted by the Speaker under the Act proceeded to inquire into the
allegations made against the Judge. On May 10, 1992, the learned Judge H
110
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
I.
A addressed a letter to the Presiding Officer of lhe Committee requesting
B
him to supply a copy of its report before it wa~ forwarded to the Speaker
and also. requested him to withhold the report! by giving reasonable time
to peruse and to take appropriate action there11n. The Inqu!ry Committee
replied that since the Supreme Court was s<!ized of the matter in the
connected case (Writ Petitior 149of1992) the I.committee would abide by
any directions that may be given by the Court.;Thereafter, the wife of the
Judge filed a Writ Peitition in this Court - whi.,h was treated in substance
as filed by the Judge himself - for a direction tn the Committee to supply
a copy of the Report of the Committee to the Judge and simultaneously to
I
withhold forwarding of the said Report to the !Speaker of the Lok Sabha
C to enable the Judge to seek redress in a court of law, if required or
necessary, against the findings of the Committte in its Report.
It was contended on behalf of the petition~r that (i) as a logical corollary of the decision in Sub-Committee on Judici~l Accountability's case, the
Jndge is entitled to be supplied a copy of the Report of the Committee before
D submission of the Report to the Speaker; (ii) 001~ the Parliamentary part of
the process begins and the Speaker moves the motion in th.e House along
with the address to the President for the removal of the Judge, the Judge
would be deprived of his constitutional right ofs\,.,kingjndicial review of the
statutory part of the process even though thal is the foundation for the
E subsequent Parliamentary part, i.e., Judicial Ref iew to test the legality of the
Committee's findings is available either 'now' before the commencement of
the Parliamentary Process on submission of t~~ Report to the Speaker or
I
F
never; (iii) non-supply of Report to the Judg~ before submission to the
Hon'ble Speaker would not only defeat the consbtutional right orthe Judge
butwouldalsoviolat~ princfples ofNaturalJusdce; (iv) the order of removal
made by the President under Article 124( 4) being immune from Judicial
Review, the Judge must have the opportunity /of seeking Judicial Review
before commencement of the Parliamentary part of the process for which he
should be supplied a copy of the Report before !submission to the Speaker;
and (v) that the Inquiry Committee is a Tribun;ll for the purposes of Article
G 136 of the Constitution and since an appeal wo~ld lie in this Court against
the findings of the said Committee, the Report if the Committee is required
to be furnished to the Jndge concerned.
On behalf of the Inquiry Committee it 1was contended that (i) on
H completion of' enquiry culminating in the reco~ding of the findings in the
SMT. S. RAMASWAMI v. U.0.1.
111
Report, the principle of comity between the constitutional authorities reA
quire that the Courts must not interdict the process contemplated by the Act
once the findings have been recorded in the report; (ii) the Judge is entitled
to opportunity during the Parliamentary process to assail the adverse findings and there are no reasons to assume that the Parliament would not give
such an opportunity or that it would not properly consider the objections to
the findings raised by the .Judge before voting on the motion; and (iii) the
Jndicial Review of the order of removal may not be excluded.
B
The Attorney General contended (i) that the Committee is in the
naturt of a subordinate authority to the Speaker. The Report is like
granting of sanction for prosecution of a public servant as contemplated C
under Section 197 of the Code of Criminal procedure, 1973. Unless the
validity of the sanction is questioned at the earliest stage the accused is
precluded to assail it at a later stage. On the same analogy the learned
Judge is entitled to challenge the adverse findings, if any, recorded in the
Report by the Committee before the same is taken for consideration by the
Parliament. This can only be done when such Report is made available to D
the learned Judge for seeking Judicial Review; (ii) the Parliamentary
process of removal is not amenable to judicial review. Therefore, before
any motion is laid on the floor of each House of Parliament, the learned
Judge is entitled to the supply of a copy of the Report and to seek judicial
review thereof; and (iii) the right of the Iearnei;I Judge to challenge the E
order of removal made by the President under Article 124(4) being doubtful, it is appropriate that in order to avoid defeating his right of seeking
judicial review in case of an adverse finding, if any, the learned Judge
should be furnished a copy of the Report of the Committee at this stage
before it is submitted to the Speaker under Section 4(2) of the Act.
Disposing the petition, this Court,
HELD: (Per Verma J, for himself and K.J, Reddy and S.C. Agrawal,
JJ.)
F
1. It cannot be said that the only logical corollary of the decision in G
Sub-Committee on Judicial Accountability Is that the concerned Judge has
a right to obtain a copy of the Report of the Inquiry Committee before
commencement of the parliamentary process to enable him to avail the
remedy of judicial review in case the Committee has recorded a finding of
'guilty' agianst the learned Judge. [190 B-C]
H
112
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A
1.1. The absence of any obligation in the Committee to furnish a copy
of its report to the concerned Judge before submitting it to the
Speaker/Chairman under Section 4(2) of the Act is in consonance with the
law declared in Sub-Committee on Judicial Accountability that the process
for removal of the Judge is statutory 'ill the laying of the Report by the
B Speaker before the Parliament on its submission to him by the Committee
in accordance with sub-sections (2) and (3) of Section 4 of the Act. (148-F]
Sub-Committee on Judicial Accountability v. Union of India and Ors.,
(1991] 4 S.C.C. 699, referred to.
C
1.2. If the supply of a copy of the Report to the Judge by the
Committee before its submission to the Speaker was contemplated by the
law enacted under Article 124(5) that area would not be left blank in the
provisions made in the law while providing elaborately for submission of
the report together with its manner, including the number of copies, in
D Section 4 of the Act and Rule 9 framed thereunder. The absence of such a
provision in this law is a deliberate and not an inadvertent omission to
emphasise absence of that requirement which also matches the constitutional scheme. [169 D-E]
2. Every Judge of the Supreme Court and the High Courts on his
E appointment is Irremovable from office during his tenure except in the
manner provided in clauses (4) and (5) of Article 124 of the Constitution
of India. The law made by the Parliament under Article 124(5), namely,
the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969
F
framed thereunder, is to be read along with Article 124(4) to find out the
constitutional scheme adopted in India for the removal of a Judge of the
Supreme Court or a High Court. The law so enacted under Article 124(5)
provides that any accusation made against a sitting Judge to enable
initiation of the process of his removal from office has to be only by not
less than the minimum number of Members of Parliament specified in the
Act, all other methods being excluded. On initation of the process in the
G prescribed manner, the Speaker/Chairman is to decide whether the accusation requires investigation. If he chooses not to act on the accusation
made in the form of motion by the specified minimum number of Member
of Parliament, the matter ends there. On the other hand, if the
Speaker/Chairman, on a consideration of the materials available and after
H €onsulting such persons as he thinks fit, forms the opinion that a prima
•.
SMT. S. RAMASWAMI v. U.0.1.
113
facie case for investigation Into the accusation against the Judge Is made A
out, he constitutes a Committee of Judicial functionaries in accordance
with Section 3(2) of the Act. [188 E·H, 189-A)
3. The scheme embodied in Section 6 of the Act read with Rule 9 is
that where the finding of the Inquiry Committee is of 'not guilty' whether B
unanimous or by majority of the members of the Inquiry Committee, the
entire process of removal of the Judge terminates with that finding giving
the quietus to the accusation of misbehaviour by the Judge scotching all
rumours and the motion is not even required to be taken up for consldera·
tion by the Parliament so that the parliamentary part of the process does
not commence in the absence of the condition precedent of a finding of C
'quilty' by the Inquiry Committee essential for its commencement. Jn such
a situation, when the finding of 'not guilty' is by majority of-the members
only, the contrary finding of guilty by the third member is not even to be
disclosed to any authority or person including the l;'arliament since all
debate on the conduct of the concerned Judge based on those allegations D
must end. The provision in Rule 9(6) for non-disclosure of the dissenting
opinion of 'guilty' even to the Parliament further indicates that no one
including the Members of Parliament who gave the notice of motion under
Section 3(1) of the Act to Initiate the process of removal have any right in
that situation to even scrutinise much less assail the finding of 'not guilty'
recorded by the Inquiry Committee even by majority. Section 6(1) of the E
Act read with Rule 9(6) of the Rules is a clear pointer in this direction.
[146 E·H, 148 A·Bl
3.1. The provisions in the Act and the Rules are a strong indication
that the constitutional scheme for the removal of a Judge in accordance F
with clauses (4) and (5) of Article 124 of.the Constitution and the par·
liamentary law enacted under Article 124(5) shuts out all scrutiny even by
judicial review where the Inquiry Committe< unanimously or even by
majority makes a finding that the Judge is 'not guilty' of any misbehaviour.
Obviously, the concerned Judge cannot be aggrieved by a finding of 'not
guilty' in his favour and in case such finding Is not unanimous but by G
majority, non-disclosure of the dissenting opinion of guilty, as required by
Rules 9(6) of the Rules, even to the Parliament, prevents any possible
damage to the reputation of the concerned Judge from the dissenting
opinion and, therefore, there can be no legitimate grievance to him from
the undisclosed dissenting opinion. For this reason, the concerned Judge H
114
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A can have no grievance agianst exclusion of judicial review in that situation.
B
This being the situation in the event of the Committee's Report containing
a finding of 'not guilty', there can be no requirement at least in that
situation for the Committee to furnish a copy of its report to the concerned
Judge before submitting the same to the Speaker/Chairman under Section
4(2) of the Act. [147 F-H, 148-D]
3.2. If there be several charges framed against the judge and in
respect of some of them the finding is that the Judge '.s 'guilty' while the
finding on the other charges is that the Judge is 'not guilty', then the
consequences which would ensue in respect of the finding on each charge
C would depend on its nature. In other words, in respect of a charge of which
the Judge is found 'not guilty', the consequences would be those in accordance with Section 6(1) of the Act and Rule 9(6) of the Rules and the process
of removal relating to those charges would terminate in the manner
ind.icated without being subject to any further scrutiny or judicial review
D as in the case of a finding of 'not guilty' in respect of all the charges levelled
against a Judge. [149 B·D]
4. When the finding in the Committee's Report is that the Judge is
'guilty' of any misbehavionr, then Section 6(2) of the Act mandates that
the motion for removal of the Judge shall be taken np for consideration
E
by the House together with the Report of the Committee submitted in
accordance with Section 4(2) and laid before it under Section 4(3) of the
Act. A full consideration on merits inclnding correctness of the finding of
'guilty' made by the Inquiry Committee on the basis of the materials before
the Parliament is contemplated during the parliamentary part of the
F
process of removal of a Judge. [156 D-E, 157H, 158-A]
4.1. There is no reason why in the Constitntional scheme adopted in
India, the concerned Judge should not be given an opportunity when the
Parliament takes up for consideration the motion for his removal on a
finding of 'guilty' being made by the Committee constituted under the
G Judges (Inquiry) Act, 1968. Such an opportunity is consistent with and is
also the requirement of fairness, an essential attribute of procedure for
any decision having civil consequences. The precise details of the manner
in which such an opportunity is to be given to the concerned Judge may
be for the Speaker/Chairman and the Parliament (o decide, but there is
H clear mandate in our constitutional scheme that the procedure adopted
SMT. S. RAMASWAMI v. U.O.L
115
for this purpose should be such as would ensure availability to each House A
of Parliament of the concerned Judge's point of view and comments, if any,
on the linding of 'guilty' made in the Committee's report when it takes up
for consideration the motion for removal of the Judge, such procedure
ensuring fairness to the concerned Judge and being in keeping with the
dignity of the high office held by the learned Judge. (162 F·G, 160 A-BJ
4.2. It is, therefore, implicit in the constitutional scheme for the
removal of a Judge provided in Article 124(4) and the law enacted under
Article 124(5) that the Parliament should also have the benelit of the point
B
of view and the comments, if any, of the concerned Judge on the linding of
'guilty' against him recorded by the Inquiry Committee in its Report when C
the Parliament takes up the motion for removal of the Judge for consideration along with the Inquiry Committee's Report and the other relevant
materials made available to it. To enable performance of this exercise and
to effectuate the concerned Judge's right to show cause against the linding
of 'guilty' made in the report at this stage to the Parliament, it is clear D
obligation of the Speaker/Chairman to supply a copy of the Inquiry
Committee's Report to the concerned Judge while causing it to be laid
before the Parliament under Section 4(3) 'as soon as may be' on its
submission under Section 4(2). This view also has the advantage of provid·
ing the concerned Judge an opportunity during the parlia.mentary part of
the process or removal to place his point of view and offer the comments, E
if any, on the linding of 'guilty' against him made by the Inquiry Committee
for consideration by the Parliament before voting on tl;e motion for
removal of the Judge. (158 F ·H, 159·A]
4.3. If the constitutional scheme, envisages and provides for an
opportunity to the concerned Judge to show cause against his removal
from office on the linding of 'guilty' recorded by the Inquiry Committee
being placed before the Parliament for its consideration and the Parlia·
F
ment is required to take it into account before it decides to accept the
linding of 'guilty' and act on it by adopting the motion of removal by the
requisite majority or not to adopt the motion which would terminate the G
proceedings for removal, it would indicate that the opportunity of this
kind in the scheme to show cause is against the inchoate linding of guilty
prior to the stage of making the linal decision which alone is required to
be subject to judicial review. The clear intendment is that in such a
situation it is the Parliament which should lirst consider the question H
116
SUPREME COURT REPORTS (1992) SUPP. 1 S.C.R.
A without there being any need for judicial review at that stage. This is so
because the misbehaviour is deemed to be proved, according to Section 6(3)
of the Act, only when the Parliament adopts the motion in the manner
prescribed. (163 A-DJ
B
The remedy of judicial review to the concerned Judge is available only
when his misbehaviour is 'deemed to be proved' in law and not against the
inchoate finding of'guilty' made by the Inquiry Committee which may or may
not be acted upon by the Parliament. Another reason to snpport this view is
that the proceedings for removal of a Judge are required to be concluded at
the earliest In public interest and, therefore, no interdiction of the process is
C contemplated at the stage of an inchoate finding of 'guilty' by the Inquiry
Committee. An opportunity to the concerned Judge at the stage also to show
cause against that inchoate finding of 'guilty' fully safegaards his interest
without the need for judicial review at that stage, the scope for Parliament's
scrutiny of the Committee's finding of gulity being very wide. (163 D-F)
D
4.4. The contrary view would result in a serious anomaly. If the
finding of 'guilty' made by the Committee by Itself amounts to 'proved
misbehaviour' for the purpose of Article U4( 4), anomalous situation
would arise if the Parliament does not adopt the motion of removal
thereafter. In that situation the process would end and, notwithstanding a
E finding of 'proved misbehaviour', the Judge cannot be removed from office.
F
Such a piquant situation at the end of the process of removal In spite of
a finding of 'proved misbehaviour' could never by contemplated In the
scheme and, therefore, a construction which can lead to that absnrdity
must be eschewed. (164 D-E)
4.S. Even though judicial review of the finding of 'guilty' made by the
Inquiry Committee may be permissible on limited grounds pertaining only
to legality, yet the power of the Parliament would not be so limited while
considering the motion for removal inasmuch as the Parliament is emG powered to not adopt the motion in spite of the finding of 'guilty' made by
the Committee on a consideration of the entire material before It which
enables it to go even into the probative value of the material on which the
finding is based and to decide the desirability of adopting the motion in a
given case. The Parliament decides by voting on the motion and is not
required to give any reasons for its decision if it chooses not to adopt the
H
motion. (163 G-H, 164-A)
1
SMT. S. RAMASWAMI v. U.0.1.
117
There is no reason to assume that the .Parliament would not disA
charge its obligation in the constitutional scheme with as much responsibility and seriousness as is expected from any other organ of the State
or authority involved in the process of remov3l of a Judge. The n;dure and
extent of power entrusted to the Parliament In this process is a relevant
factor to Indicate exclusion of judicial review till after the making of the B
order ofremoval by the President in case the Parliament adopts the motion
by the requisite majority. The finding of 'guilty' made by the Committee is
only a recommendation to the Parliament to commence its process and to
act on that finding which, at best, is tentative and inchoate at the stage of
submission of the Report under Section 4 of the Act. [164 A-Cl
4.6. This being so, the remedy of judicial review to the concerned
Judge has to be only after the stage of bis 'proved misbehaviour' is reached
c
on adoption of the motion by the Parliament which leads inevitably to the
order of removal made by the President in accordance with Article 124(4).
Resort to judicial review by the concerned Judge between the time of D
conclusion of the inquiry by the Committee and making of the order of
removal by the President would be premature and is unwarranted in the
constitutional scheme. This construction while protecting the interest of
the concerned Judge gives full effect and due importance to the role of all
the high dignitaries involved In the process of removal, there being no
reason to doubt that each one of them would be fully alive to the sig- .E
nilicance of bis role and. extent of obligation under the constitutional
scheme. If, however, any illegality occurs even then, the provision for
judicial review at the end of the process permits Its correction without
interdicting the process in between. [164 F-H, 165-A]
S. Judicial review is the exercise of the courts' inherent power to
determine legality of an action and award suitable relief and thereby
uphold the rule of law. No further statutory authority is needed for the
exercise of this power which is granted by the Constitution of India to the
superior courts. [173,F]
F
G
S.1. The modem trend is to accept judicial review in certain situations within circumscribed limits even where the entire process is political
since the 'political question doctrine', permits this course. Jn such cases
where the entire process is political, judicial review to the extent permissible on conclusion of the political process is not doubted. There appears H
118
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A
to be no reason in principle why judicial review at the end of the entire
process of removal of a Judge in India, where it is a composite process of
which the political process Is only a part, can be excluded after conclusion
of the entire process including the political process. [184 C-E)
B
Adam Clayton Powell v. John W. McConnack, 23 L.Ed. 2d. 491 : 395
US 486, referred to.
5.2. Mere parliamentary approval of an action or even a report by
an outside authority when without such approval, the action or report is
ineffective by itself, does not have the effect of excluding judicial review on
C the permissible grounds. [173-B)
5.3. There Is no embargo, in principle or authority, to infer that in
the constitutional scheme adopted in India, judicial review of the finding
of guilty recorded by the Inquiry Committee during the statutory part of
the process is impermissible after that tentative finding matures into
D 'proved misbehaviour' culminating in the order of removal. The argument
of 'now or never' does not appeal to the Court and what appears more
consistent in the constitutional scheme is that judicial review on permis·
sible grounds is available not now but at the end of the process after the order
of removal, if that stage is reached. (170 D-E)
E
5.4. There is no reason to take the view that an order of removal of
a Judge made by the President of India under Article 124(4) of the
Constitution is immune from jvdicial review on permissible grounds to
examine the legality of the finding of guilty made by the Inquiry Committee
during the statutory proces$ for removal which is the condition precedent
F
for commencement of the parliamentary process culminating in the
making of order of removal by the ~sident. Judicial Review of the finding
of guilty in the Report of the Inquiry Committee constituted under the
Judges (Inquiry) Act, 1968 would be permissible on the available grounds
of judicial scrutiny after the making of an order of removal by the PresiG dent pursuant to adoption of the motion for removal by the Parliament
based on the Inquiry Committee's Report. (173 C·G)
S.S. Availability of judicial review to the learned Judge, in case the
need arises as a result of the order of removal made by the President, after
the making of such an order cannot be doubted in view of the wide powers
H
of the Supreme Court of India. [173-E]
\
SMT.·S. RAMASWAMI v. U.0.1.
119
5.6. This conclusion adequately protects the right of the concerned A
Judge, ensures expeditious conclusion of the process once it is commenced
in the manner prescribed and accords with the view that the scheme is 'a
judicious blend of the political and judicial processes for the removal of
Jndges, it ensures preservation of the right, interest and dignity of the
learned Judge and is commensurate with the dignity of all the institutions B
and functionaries involved in the process. It also excludes the needless
meddling in the process by busy bodies confining the participation in it to
the Members of Parliament, the Speaker/Chairman and the Inquiry Com·
mittee comprising of high judicial functionaries apart from the concerned
Judge, if the allegations permitted to be made only in the prescribed
manner justify an inquiry into the conduct of the Judge. [170.E·G]
C
Keshuv Singh, [1965] 1 S.C.R. 413; Sub-Committee on Judicial Accountability v. Union of India & Ors., [1991] 4 S.C.C. 699; S.P. Gupta v.
Union of India, [1981] Supp. S.C.C. 87; State of Rajasthan v. Union of India,
[1978] 1 S.C.R. 1 and Union of India & Anr. v. Raghubir Singh (dead) by D
Lrs. etc., [1989] 2 S.C.C. 754, referred to.
Regina v. Boundary Commission for England, (1983) 1 Q.B. 600, C.A.;
Nottinghamshire Country Council and Secretary of State for the Environment,
City of Bradfor Metropolitan Council and Secretary of State for the Environment, (1986) 1 A.C. 240; Regina v. Her Majesty's Treasury, Ex parte Smedley,
E
(1986) 1 Q.B. 657, C.A.;Adam Clayton Powell v.John W. McCormack 23 L.
Ed. 2d. 491; SallehAbas v.Abdul Hamid, 1988 L.R.C. 25; Bakerv. Ca", 369
U.S. 186: 7 L Ed. 2d. 663 (1962) and Powell v. McCormack, 395 US 486;23
L Ed. 2d. 491 (1969), referred to.
Halsted L. Ritter v. The United States, 84 C. Cls. 293, distinguished.
F
H.W.R. Wade, Administrative Law, 6th Edition; Reoul Berger, Impeachment : The Constitutional Problems (1973) Willis, Constitutional Law
of the United States ( 1936), referred to.
Deni el A. Rezneck, "Is Judicial Review of Impeachment Coming", 60
American Bar Association Journal 681 (1974); Miacbel J. Gerhadt, "The
Constitutional Limits to impeachment and its alternatives" 68 Texas Law
Review, 1 ( 1989), referred to.
G
6. One of the considerations which has weighed with the Court for H
120
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A
holding a statutory authority to be a tribunal under Article 136 is finality
or conclusiveness and the binding nature of the determination by such
authority. [166-H, 167-A]
B
6.1. The determination by the Committee that the Judge is 'not gnilty'
of misbehaviour, is alone final as it terminates the proceeding. However,
in that case there is no scope for judicial review of the finding of 'not qullty'
made by the Committee. This aspect negates the character of tribunal for
this reason alone. In the other situation when the Committee's determina·
lion is that the Judge is 'guilty' of misbehaviour, that finding Is inchoate
which may or may not be acted upon by the Parliament. Finding of 'gnllty'
C made by the Committee being subject to acceptance by the Parliament, Is
not final and is, therefore, not conclusive. If the Committee bas to be
regarded as a tribunal under Article 136, it would serve no useful purpose
and would also lead to the anamolous result that the Committee is to be
treated as a tribunal if it finds that the Judge Is not gnilty of any mis·
behaviour but it is not to be treated as a tribunal if it finds that the Judge
D is guilty ofany misbehaviour. The character of the Committee as a tribnnal
cannot depend on the findings that are ultimately recorded by it. (168 C·F]
6.2. In effect, the Report of the Inquiry Committee containing a
finding that the Judge is gnilty of misbehaviour is in the nature of recom·
E mendation for bis removal which may or may not be acted upon by the
Parliament while considering the motion for removal according to the
procedure laid down in the constitution fer removal of a superior Judge,
which is the only manner of curtailing the fixed tenure of the Judge. The
misbehaviour of the Judge is 'deemed to be proved' according to Section
F
G
6(3) of the Act only when the motion is adopted by the Parliament and not
otherwise. The finding of 'gnilty' made by the Committee does not by itself
bring about that result. An essential test of the determinative nature of the
finding, an attribute of the tribunal is lacking. The test of the absence of
any dispute or lis between two adversaries also negatives the contention
that the Committee is a tribunal for the purpose Article 136.
(169 A·B, 168 G·H]
6.3. Keeping in view the provisions of the Act and the Rules and
specially the fact that certain finding recorded by a member of the Com·
mittee is not required to be disclosed in the given circumstances and the
finding recorded by the Committee holding that the Judge is gnilty of any
H misbehaviour is not final and conclusive, it is legally not permissible to
SMT. S. RAMASWAMI v. U.0.1.
121
hold that the Committee is a tribunal under Article 136 of the ConstltuA
tion. [169 F-G)
Jaswant Sugar Mills Ltd. v. Lakshmichand & Ors., [1963) Supp. 1
S.C.R. 242; Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd. &Anr.,
JT (1992) 3 S.C. 446 and Dev Singh & Ors. v. Registrar, Punjab & Haryana
High Court & Ors., [1987) 2 s.c.R. 1005, relied on.
B
The Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd., [1950)
S.C.R. 459; Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955)
1 S.C.R. 267 and Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh,
[1964) 6 S.C.R. 594, referred to.
c
Per Kasliwal, !. (Concurring)
1. There is no provision in the Act or the Rules for the supply of copy
to concerned Judge by the Inquiry Committee before sending the Report
to the Speaker for laying down the Report before the Parliament. In the D
scheme of the Act and the Rules and the Constitution, no direction can be
given to the Inquiry Committee to furnish the Report to the Judge for
seeking judicial review at the stage when the investigation is already
complete. [199-D, 205-E)
2. The right of judicial review is not a right emerging under any E
principle of natural justice. It cannot be equated with the rule of audi
alteram partem. The right of judicial review is itself a right available only
on limited permissible grounds. The right of seeking a judicial review
depends on the facts of each individual case and will depend on several
factors which would be necessary to be examined before the particular F
order or action is put under challenge. There cannot be any demand of
judicial review as an abstract proposition oflaw on the premise of violation
of any principle of natural justice. No direction as such can be sought on
the basis that if the copy orthe Report Is not supplied before sending the
same to the Speaker, the learned Judge would be left with no remedy of G
judicial review at a later stage. There is neither any violation of any
principle of natural justice nor violation of any constitutional or statutory
provision in not affording a copy of the Inquiry Report before sending the
same to the Speaker. (203 B-El
2.1. This Court cannot give any mandamus to any authority unless H
122
SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.
A
it can be shown that such authority is acting in violation of any provisions
of the statute or constitutional obligation. Thus, even if it may be considered that the Committee is performing a statutory function amenable
to the jurisdiction of this Court in judicial review, it must be sho"4 that
it is acting in violation of any rule or law. In the present case the Inquiry
B Committee is rather performing its legal duty and fulfilling the statutory
obligation of sending the report to the Speaker and as such no mandamus
or direction can be given to delay or put any hindrance in such lawful
action on the part of the Committee. [203 F-G]
3. The right of the hearing to the concerned Judge in the present
C scheme of law can only arise before two authorities. One before the Inqniry
Committee and the other before the Parliament. So far as the opportunity
of hearing before the Inqruiry Committee is concerned, the provisions
clearly show that fnll opportunity of hearing is given to the Judge in
respect of contesting the charges framed against him as well as crossexamining any witness and leading any evidence in defence.
D
[201-E, 202 A-Bl
3.1. It is no doubt correct that Parliament is free to adopt its own
procednre while considering the motion, bnt that alone cannot be con·
sidered as a ground for seeking judicial review against the report of the
E Committee. The qnestion of not giving any opportunity of hearing before
any action is taken against the learned Judge by the Parliament can only
arise after any decision is taken against the Judge by the Parliament. No
argument based on the violation of principle of natural justice can be
considered on the assumption that the Parliament may adopt a procedure
which may be in violation of principles ofnatural justice. Thus, if a direction
F
is being sough If or supplying a copy of the report on the ground of assumed
violation of any principle of natural justice by the Parliament, there is no
justification and it would be pre-judging the issue and predicating a remedy
without laying any foundation or basis for such relief. [202 C-F]
4. The entire constitutional scheme in this matter shows that the
G Parliament had complete confidence in the independence and dignity of
judiciary. The Inquiry has been left to the Inquiry Committee composed
of high judicial functionaries alone. Io case of such Committee giving a
finding of not guilty, the same has been considered as final and giving a
quietus and no further discussion on the motion has been made permisH
slble. It is only lo case of finding of gnilty recorded by the Inquiry
SMT. S. RAMASWAMI v. U.0.1.
123
Committee that the motion is required to be taken up for further con· A
sideration. In this kind of case in the larger public interest including the
independence of the judiciary itself any delay after the recording of such
finding of guilty, if any by the Inquiry Committee and to permit such report
being challenged by way of judicial review at this . stage would not be
proper. The matter after recording, if any, a finding of gnilty against the B
concerned Judge by the Inquiry Committee should be left for further
consideration by the Parliament. (205 G-H, 206-A]
5. The finding of gnilty recorded by the Committee on the charges is
not conclusive and final and the Parliament can still bold that the charges
levelled against the concerned Judge did not amount to misbehaviour and C
may decide not to adopt the motion. On the other hand, if In the course of
judicial review this Court approves or affirms such findings recorded by
the Inquiry Committee being a decision of this Court shall be binding on
the Parliament. In that case, it would not be possible for the Parliament
to take a different view and this would be an extra constitutional inter· D
ference in the framework of the scheme. In another case during the course
of judicial review this Court may come to the conclusion of quashing the
entire proceedings conducted by the Inquiry Committee and require it to
hold a fresh inquiry. (204 C·D]
6. The life and existence of the Inquiry Committee is co-terminus E
with the period of 3 months as laid down in Rule 9(2) (c) of the Rules or
till the Speaker extends the time for sufficient cause under the the proviso
to the aforesaid Rule. After this period is over, the Committee ceases to
function and neither this Court nor any other Court can extend this period
in the exercise of judicial review of the findings of the Inquiry Committee. F
The period of 3 months has been fixed in the statutory rules itself and the
Speaker alone has been authorised to extend such period for sufficient
cause. This Court cannot extend such period nor give any direction to the
Speaker to do so, and any attempt of remanding the matter for fresh
inquiry or to keep the matter pending till the concerned Judge decides to G
challenge the report byway ofjudlcial review or to keep the matter pending
for decision under the exercise of judicial review beyond the aforesaid
period Is not permissible and cannot be done In an indlrect manner which
cannot be done dlrectly.