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TMI Blog1991 (10) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court. On 12th March, 1991, the motion was admitted by the then Speaker of the Lok Sabha who also proceeded to constitute a Committee consisting of Mr. Justice P.B. Sawant, a sitting Judge of this Court, Mr. Justice P.D. Desai, Chief Justice of the High Court of Bombay, and Mr. Justice O. Chinappa Reddy, a distinguished jurist in terms of Section 3(2) of The Judges (Inquiry) Act, 1968. The occasion for such controversy as is raised in these proceedings is the refusal of the Union Government to act in aid of the decision of the Speaker and to decline to notify that the services of the two sitting Judges on the Committee would be treated as actual-service within the meaning of Para 11(b)(i) of Part D of the II Schedule to the Constitution. It is said that without such a notification the two sitting Judges cannot take time off from their court-work. The Union Government seeks to justify its stand on its understanding that both the motion given notice of by the 108 Members of the Lok Sabha for presenting an Address to the President for the removal of the Judge concerned as well as the decision of the Speaker of the 9th Lok Sabha to admit the motion and constitute a Committee u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Judges (Inquiry) Act, 1968 and, secondly, that during the pendency of the proceedings before the Committee the learned Judge should be restrained from performing judicial functions and from exercising Judicial powers. 4. Writ Petition No. 542 is by a certain Harish Uppal. This writ petition is more in the nature of a counter to the second prayer in the WP No. 541/1991 and WP No. 491/1991. Petitioner, Sri Harish Uppal says that till the Inquiry Committee actually finds the learned Judge guilty of the charges there should be no interdict of his judicial functions and that if such a finding is recorded then thereafter till such time as the Motion for the presentation of the Address for the removal of the Judge disposed of by the Houses of Parliament-which petitioner says should not be delayed beyond 180 days - the President may ask the Judge concerned to rescue from judicial functions. In Writ Petition No. 560/1991 brought by Shyam Ratan Khandelwal, a practising Advocate, the constitutional validity of the Judges (Inquiry) Act, 1968 is challenged as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Constitution of India. It also seeks a declaration that the Motion p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of India, Justice Sabyasachi Mukharji, took note of the reports in this behalf and of representations submitted to him in this behalf and advised Justice Ramaswami to abstain from discharging judicial functions until those allegations were cleared. Thereafter, a Committee of three Judges was constituted by the then Chief Justice of India, to look into the matter and to advise him whether on the facts Justice Ramaswami might be embarrassed in discharging judicial functions as a Judge of this Court. The Committee tendered its advice to the Chief Justice. It noted that Justice Ramaswami had declined to acknowledge the jurisdiction of any Committee to sit in judgment over his conduct. The Committee, accordingly, abstained from an inquiry on the charges but, on an evaluation of the matter before it, expressed the view that as long as the charges of improper conduct involving moral turpitude were not established in the various enquiries then pending the operation of the constitutional warrant appointing him a Judge of the Court could not be interdicted. Thereafter, in February, 1991, 108 Members of the Lok Sabha presented a Motion to the Speaker of the 9th Lok Sabha for Address to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral rule is that no House of Parliament can seek to bind its successor. All pending business at the time of dissolution of House lapses. A motion for removal of a judge is just another motion and perishes with the expiry of the term or the earlier dissolution of the House. The question whether the motion for the removal of the Judge has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive judge. No aspect of the matter is justiciable before Court. Contention B: The constitutional process of removal of a Judge, both in its substantive and procedural aspects, is a political process within the exclusive domain of the Houses of Parliament. The conduct of the Speaker in regulating the procedure and business of the House shall not be subject to the jurisdiction of any Court. The Speaker of the Lok Sabha in the exercise of his powers under the Judges (Inquiry) Act, 1968, acts in an area outside the courts jurisdiction. There is nothing in the Judges (Inquiry) Act, 1968 which detracts from this doctrine of lapse. On the contrary, the provisions of the Act are consistent with this Constitutional posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory authority acting under the Statute and not as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the Court, any judgment rendered and writ issued by this Court have the prospect of being infructuous in view of the undisputed constitutional position that, in the ultimate analysis, the decision to adopt or turn down the motion is exclusively within the power of the House and the Court would have no jurisdiction over that area. The Court would, therefore, decline to exercise its jurisdiction on grounds of in fructuousness. 8. Before we discuss the merits of the arguments it is necessary to take a conspectus of the constitutional provisions concerning the judiciary and its independence. In interpreting the constitutional provisions in this area 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 Constitution which permeates the whole of the Constitutional fabric and is an integral part of the constitutional structure. Independence of the judiciary is an essential attribute of Rule of law. Articles 124(2) and 217 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been subjected to following criticism- (i) legislative removal is coloured by political partisanship inasmuch as the initiation of the process as well as the ultimate result may be dictated by political considerations and process of fact-finding and deliberations also suffer from party spirit. (ii) the government has considerable control not only on the ultimate result of the proceedings but also on parliamentary time which enables them to prevent motions for an address from being adopted if it suits them. (iii) the legislative procedure is not adequate for adjudicative fact-finding; and (iv) since Parliament is the master of its own procedure, the procedures and rules of evidence appropriate to judicial proceedings which would seem to be required in a case of judicial removal are unlikely to be allowed in Parliament. (See: Shetreet - Judges on Trial (1976) p. 405-407) 12. The Justice Sub-Committee on the Judiciary considered the question whether the existing process for removal by address of the Houses should be substituted for or supplemented by a new mechanism designed to meet changing needs and conditions. The Sub-Committee, in its 1972 Report, answered the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was enacted in 1971 whereby Canadian Judicial Council has been created. The functions of the said Council as set out in Section 39(2) include making the enquiries and the investigation of complaints or allegations described in Section 40. Section 40 provides that the council may conduct an enquiry to determine whether a judge of superior, district or county court should be removed from office and it may recommend to the Minister of Justice of Canada that a Judge should be removed from office. The grounds on which such a recommendation can be made are set out in Section 41(2) of the Act and they are : (a) age or infirmity, (b) having been guilty of misconduct, (c) having failed in the due execution of his office, or (d) having been placed, by his conduct or otherwise, in a position incompatible with the due execution of his office. (Gall The Canadian Legal System (1983); pp. 184-186). In 1982 the matter of Mr. Justice Thomas Berger, a Judge of the Supreme Court of British Columbia, was investigated by the Canadian Judicial Council prompted by certain remarks made by the judge. The Council concluded that the public expression of political views in the nature of those made by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said commission could give its report, the judge became gravely ill and the Act was repealed [Lane s Commentary on the Australian Constitution, (1986) p. 373]. 15. In one other case, proceedings for removal were initiated against Mr. Justice Vasta of the Supreme Court of Queensland and for that purpose, the Queensland Legislature enacted the Parliamentary (Judges) Commission of Inquiry Act, 1988 whereby a commission comprised of three retired judges respectively of the High Court of Australia, Supreme Court of Victoria and the Supreme Court of New South Wales was constituted. 16. In Australia, there has been criticism of the existing procedure with regard to removal of judges both by judges as well as by lawyers. Mr. Justice L.J. King, Chief Justice of the Supreme Court of South Australia, has observed: The concept of removal by an address of both Houses of Parliament is itself the subject of a good deal of criticism. Curiously, common criticism which are made are contradictory. One criticism is that the necessity for the involvement of the legislature ensures that the procedure will not be used and that the judges therefore have a practical immunity from removal. Remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendence which the Act of Settlement provisions were intended to effect, has in the intervening period just a great deal of its strength. In 1701, the Crown, the House of Lords and the House of Commons were three powerful but relatively independent entities. It was necessary for a judge to incur the displeasure of all three concurrently to be at risk of removal under the parliamentary address procedure. The subsequent development of the party system and cabinet government (especially with modern ideas of strict party discipline) has radically altered the position. In modern times, the executive government and the lower house (and frequently the upper house, where there is one) are effectively under the control of a single individual or cohesive group, so that now a judge may be at risk of removal under the parliamentary address procedure if he or she were to incur the sole displeasure of that individual or group. (Disciplining Australian Judges, (1990) 64 ALJ 388) Sir Maurice Byers, former Solicitor General of the Commonwealth has also spoken in the same vein: A federal system involves a tension between the High Court and the Parliament and the executive. Recent years have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent as the normal process of removal of appointed judges. In some States, provision is made for removal by an address of the Governor to both Houses of legislature or by a joint resolution of the legislature. In some States, the removal power is vested in the State Supreme Courts while in some states, special courts are provided to hear removal charges. In the State of New York, the Court is known as the Court on the judiciary. (See Henry J. Abraham: The Judicial Process, 3rd Ed. p. 45). For judicial administration at the national level, there is Judicial Conference of the United States which consists of the Chief Justices of the United States, the chief judges of each of the eleven numbered circuits and of the District of Columbia and federal circuits but also, since 1957, a district judge representative from each circuit with the exception of the federal circuit, which lacks a trial-court tier. By an Act of the Congress passed in 1932 (incorporated in Title 28 of the U.S. Code) the Judicial Conference is charged with the duty to make a comprehensive survey of the condition of business in the courts; to prepare plans for assignment of judges to or from circuits or districts whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dations are transmitted to the State Supreme Court for its authoritative imprimatur, except in states where they are received by legislatures that retain judicial removal power. (See Robert J. Janosik Encyclopaedia of the American Judicial System, Vol. 11 pp. 575 to 578). 18. This study of the practice prevailing in the abovementioned countries reveals that in Canada, Australia and the United States, the process of removal of a judge incorporates an investigation and inquiry into the allegations of misconduct or incapacity against a judge by a judicial agency before the institution of the formal process of removal in the legislature. England is the only exception where the entire process is in Parliament but there also views are being expressed that it should be replaced by a judicial process of investigation by a judicial tribunal before the matter is taken up by the Houses of Parliament. This is also the trend of the recommendations in the resolutions adopted by the United Nations General Assembly and international conferences of organisations of lawyers. 19. International Bar Association at its 19th Biennial Conference held at New Delhi in October 1982 adopted Minimum Stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .33(a). [Explanatory Note : In countries where the legal profession plays an indispensable role in maintaining the rule of law and judicial independence, it is recommended that members of the legal profession participate in the selection of the members of the court or board, and be included as members thereof.] 2.34 All disciplinary action shall be based upon established standards of judicial conduct. 2.35 The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing. 2.36 With the exception of proceedings before the Legislature, the proceedings for discipline and removal shall be held in camera. The judge may, however, request that the hearing be held in public, subject to a final and reasoned disposition of this request by the Disciplinary Tribunal. Judgments in disciplinary proceedings, whether held in camera or in public, may be published. 2.37 With the exception of proceedings before the Legislature or in connection with them, the decision of a Disciplinary Tribunal shall be subject to appeal to a court. 2.38 A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour, rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his office by order of the Governor-General on the ground of misbehaviour or of infirmity of body or mind, if the Judicial Committee of the Privy Council, on reference being made to them, report that the judge ought on any such ground to be removed . Similar provisions were made with regard to judges of the High Court in Section 220. It would thus appear that prior to the coming into force of the Constitution of India, it was necessary to have a determination by a judicial body about the alleged grounds of misbehaviour or infirmity of mind and body before a judge of the Federal Court or High Court could be removed. Does the Constitution seek to alter this position in a way, as to exclude investigation and proof of misbehaviour or incapacity by a judicial body and to rest the power of removal including the investigation and proof of misbehaviour or incapacity in Parliament alone. 23. Basically, the process of removal or impeachment of a judge is a political process. A learned author in The Impeachment of the Federal Judiciary. [Wrisley Brown Harward Law Review 1912-1913 684 at page 698) says: ...Thus an impeachment in this country, though judicial in external form and cerem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Crown can only be an essentially political one, not a purely juridical decision, even though we are informed that the removal procedure is subject to some extent to the rules of natural justice .... 24. But the Constitutional scheme in India seeks to achieve a judicious blend of the political and judicial processes for the removal of Judges. Though it appears at the first sight that the proceedings of the Constituent Assembly relating to the adoption of Clauses (4) and (5) of Article 124 seem to point to the contrary and evince an intention to exclude determination by a judicial process of the correctness of the allegations of misbehaviour or incapacity on a more careful examination this is not the correct conclusion. In the submissions of the learned Counsel who contend against the manifestation of an intention to bring in a judicial element, reliance has been placed on the proceedings of the Constituent Assembly dated July 29, 1947 relating to adoption of Clause 18 of the report of the Union Constitution Committee relating to the Supreme Court. Shri Alladi Krishnaswami Ayyar had moved the said clause subject to modifications and conditions in the said clause which related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly was not in favour of determination about the correctness of such allegations by judicial body because Shri Alladi Krishnaswami Ayyar, while moving Clause 18 had emphasised the word proved misbehaviour and had stated : While the ultimate power may rest with the two Houses, the Clause provides that the charges must be proved. How exactly to prove the charges will be provided for in the Federal law. We need not be more meticulous or more elaborate, than the people who have tried a similar case in other jurisdictions. I challenge my friend to say whether there is any detailed provision for the removal of judges more than that in any other Constitution in the world. The general principle is laid down in the Constitution and later on the Federal law will provide for adequate machinery and that is the import of the clause ...There is sufficient safeguard in the reference proved misbehavior and we might make elaborate and adequate provision for the way in which the guilt could be brought home to a particular judge in any Federal law that may be passed but that is a different matter .... But I do not think that in a Constitution it is necessary to provide detailed machinery as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on whether it so lapses or not is a matter within the exclusive domain and decision of that House itself. On the first aspect, the contention of the learned Attorney General and Shri Kapil Sibal, learned Senior Counsel, are similar. On the second aspect, the learned Attorney General would say that the question whether a motion lapsed or not is to be decided on the basis of the provisions of law guiding the matter and the House itself is not its final arbiter. Learned Attorney General would say that the Court alone has jurisdiction to examine and pronounce on the law of the matter. 29. On the question of lapse reliance was placed on the classic treatise of Erskine May s The Law, Privileges, Proceedings and Usage of Parliament [Twenty-first Edition, London Butterworths 1989]. A motion is described as a proposal made for the purpose of illustrating the decision of the House . According to Erskine May, certain matters may be raised by only a substantive motion. He says: Certain matters cannot be debated, except on a substantive motion which allows a distinct decision of the House. Amongst these are the conduct of the sovereign, the heir to the throne or other members of the Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute or rules of procedure. Both the learned Attorney General and Shri Kapil Sibal took us through the Rules of Procedure and Conduct of Business in Lok Sabha made under Article 118 of the Constitution to show that invariably all pending business come to an end with the expiry of the term of the House or upon its earlier dissolution. Shri Ram Jethmalani for the petitioner-sub-committee referred to the conventions of the British Parliament and urged that pending business lapses on prorogation and as a general practice the House is usually prorogued before it is dissolved. Learned counsel said that impeachment motions are sui generous in their nature and that they do not lapse. It is. however, necessary to distinguish the Indian Parliamentary experience under a written Constitution from the British conventions. Indeed, referring to the doctrine of lapse this Court in Purushothaman Nambudiri v. The State of Kerala, Gajendragadkar J said: ...In support of the 1983ECR2151D(SC) argument it is urged that wherever the English parliamentary form of Government prevails the words prorogation and dissolution have acquired the status of terms of art and their significance and conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that be the true position then the argument that the Bill which was pending assent of the President lapsed on the dissolution of the Legislative Assembly cannot be upheld. [P. 769] 31. It is true that Purushothaman Nambudiri case dealt with a legislative measure and not a pending business in the nature of motion. But, we are persuaded to the view that neither the doctrine that dissolution of a House passes a sponge over parliamentary state 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. the reason is that Article 124(5) and the law made thereunder exclude the operation of Article 118 in this area. Section 3 of the Act provides: (1) If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,- (a) in the case of a notice given in the House of the People, by not less than one hundred members of that House; (b) in the case of a notice given in the Council of States, by not less than fifty members of that Council; then, the Speaker or, as the case may be, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the Rules of Procedure framed under Article 208 (Article 118 in the case of Parliament), the law made under Article 209 shall prevail. In the constitutional area of removal of a Judge, the law made under Article 124(5) must be held to go a little further and to exclude the operation of the Rules under Article 118. Indeed, no question of repugnance could arise to the extent the field is covered by the law under Article 124(5). Such a view would indeed obviate some anomalies which might otherwise arise. Rajya Sabha is not dissolved and a motion for presentation of address for the removal of the Judge can never lapse there. Section 3 applies to both the Houses of Parliament. The words shall keep the motion pending cannot have two different meanings in the two different contexts. It can only mean that the consideration of the motion shall be deferred till the report of the committee implying that till the happening of that event the motion will not lapse. We are of the view that the argument that such a motion lapses with the dissolution of the House of Parliament is not tenable. 32. The second limb of Contention A is that the question whether a motion has lapsed or not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant provisions of the Constitution. In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign.... But it is the duty of this Court to interpret the Constitution for the meaning of which this Court is final arbiter. 33. Shri Kapil Sibal referred us to the following observations of Stephen J. in Bradlaugh v. Gossett, supra: ...It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly... [p. 280 281] ...The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns practically invest it with the judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ress by different Houses of Parliament to the President, is committed to the two Houses of Parliament alone and no initiation of any investigation is possible without the initiative being taken by the Houses themselves. No law made by Parliament under Article 124(5) could take away this power. The bar of Article 121 is lifted the moment any Member of Parliament gives notice of motion for the removal of a Judge and the entire allegations levelled by him would be open for discussion in the House itself. It will be for the majority of the Members of the House to decide if and how they would like to have the allegations investigated. Any abridging this power is bad. Second: Since a motion for presenting an address to the President referred to in Articles 121 and 124(4) has to be on ground of proved misbehaviour and incapacity, no such motion can be made until the allegations relating to misbehaviour or incapacity have first been found to be proved in some forum outside either Houses of Parliament. Law under Article 124(5) is mandatory and until the Parliament enacts a law and makes provision for an investigation into the alleged misbehaviour or incapacity and regulates the procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 124(5) might be a greatly civilized piece of legislation deferring to values of judicial independence. But then the Parliament would be free to repeal that law and revert back to the position reflected in the first view. The third view can always acquire back the full dimensions of the first position at the choice of the Parliament. 35. The second view has its own commendable features. It enables the various provisions to be read harmoniously and, together, consistently with the cherished values of judicial independence. It also accords due recognition to the word proved in Article 124(4). This view would also ensure uniformity of procedure in both Houses of Parliament and serve to eliminate arbitrariness in the proceedings for removal of a Judge. It would avoid duplication of the investigation and inquiry in the two Houses. Let us elaborate on this. 36. Article 121 and the material parts of Article 124 read as under: 121. Restriction on discussion in Parliament. - No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition precedent on the power of removal of the parliament. In other words, can the function of removal under Article 124(4) be performed without the aid of a law enacted under Clause (5)? If it can be, then the power for investigation and proof of misbehaviour or incapacity of a Judge must be found in Clause (4) itself and the scope of Clause (5) limited only to enactment of a law for this limited purpose if the Parliament so desires and not otherwise. The other view is that Clause (5) contains a constitutional limitation on the power of removal contained in Clause (4) so that it can be exercised only on misbehaviour or incapacity proved in accordance with the law enacted under Clause (5). In such situation, the power of the Parliament would become available only for enacting the law under Clause (5) and if misbehaviour or incapacity is proved in accordance with such law. The motion which lifts the bar contained in Article 121 is really a motion for such removal under Clause (4) of Article 124 moved in the House after the alleged misbehavior or incapacity has been proved in accordance with the law enacted by the Parliament under Clause (5) of Article 124. In this connection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of initiation till presentation of the address to the President, including investigation and proof of the misbehaviour or incapacity, is within the sphere of Parliament, but on enactment of a law under Clause (5) that area is carved out of the Parliament s sphere and assumes statutory character appears tenuous. If the argument were correct, then Clause (5), would merely contemplate a self-abnegation. 39. The other view is that Clause (4) of Article 124 gives power to the Parliament to act for removal of the Judge on the ground of proved misbehaviour or incapacity in the manner prescribed if the matter is brought before it at this stage; and for reaching that stage the Parliament is required to enact a law under Clause (5) regulating the procedure for that purpose. This means that making of the allegation, initiation of the proceedings, investigation and proof of the misbehaviour or incapacity of a Judge are governed entirely by the law enacted by the Parliament under Clause (5) and when that stage is reached, the Parliament comes into the picture and the motion for removal of the Judge on the ground of proved misbehaviour or incapacity is moved for presentation of the addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint if the Speaker/Chairman form the opinion that there is a prima facie case for investigation, he will constitute the judicial committee as prescribed; and if the finding reached is guilty then the Speaker/Chairman commences the parliamentary process in accordance with Article 124(4) for removal of the Judge and the bar in Article 121 is lifted. 40. If this be the correct position, then the validity of law enacted by the Parliament under Clause (5) of Article 124 and the stage upto conclusion of the inquiry in accordance with that law being governed entirely by statute would be open to judicial review as the parliamentary process under Article 124(4) commences only after a finding is recorded that the alleged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under Clause (5). For this reason the argument based on exclusivity of Parliament s jurisdiction over the process and progress of inquiry under the Judges (Inquiry) Act, 1968 and consequently exclusion of this Court s jurisdiction in the matter at this stage does not arise. For the same reason, the question of applying the doctrine of lapse to the motion made to the Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation and proof are covered by the law enacted under Clause (5); in case the allegation is not proved, the condition precedent to invoke the Parliament s jurisdiction under Clause (4), does not exist, which is the reason for Section 6 of 1968 Act saying so; and in case it is proved, the process under Clause (4) commences, culminating in the result provided in it. 43. In Part V of the Constitution relating to The Union , Article 124 is in Chapter IV - The Union Judiciary while Articles 118 and 119 relating to Parliament s power to make rules or enact a law to regulate its procedure and the conduct of its business are in Chapter II - Parliament under the heading Procedure Generally wherein Article 121 also finds place. The context and setting in which Clause (5) appears along with Clause (4) in Article 124 indicate its nature connected with Clause (4) relating to curtailment of a Judge s tenure, Clause (4) providing the manner of removal and Clause (5) the pre-requisite for removal distinguished from Articles 118, 119 and 121, all of which relate to procedure and conduct of business in Parliament. Article 124(5) does not, therefore , operate in the same field as Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a reference made for this purpose. In the case of a Judge, the procedure for investigation and proof is to be in accordance with the law enacted by the Parliament under Clause (5) of Article 124. In view of the fact that the adjudication of the ground of misbehaviour under Article 317(1) is to be by the Supreme Court, in the case of a Judge who is a higher constitutional functionary, the requirement of judicial determination of the ground is re-inforced by the addition of the word proved in Article 124(4) and the requirement of law for this purpose under Article 124(5). 46. Use of the word may in Clause (5) indicates that for the procedure for presentation of address it is an enabling provision and in the absence of the law the general procedure or that resolved by the House may apply but the investigation and proof is to be governed by the enacted law. The word may in Clause (5) is no impediment to this view. 47. On the other hand, if the word shall was used in place of may in Clause (5) it would have indicated that it was incumbent on the Parliament to regulate even the procedure for presentation of an address by enacting such a law leaving it no option even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the whole of Clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapacity or not. The mere fact that Clause (5) does not form a part of Clause (4) itself, as appears to have been considered at one stage when the Constitution was being drafted, does not reduce the significance or content of Clause (5). It is likely that the framers of the Constitution thought of clearly demarcating the boundaries and, therefore, indicated that upto the stage of proof of misbehaviour of incapacity the field is covered by a law enacted by the Parliament, the first part being covered by Clause (5) and the latter by Clause (4) with the only difference that the Parliament was given the option to regulate even the procedure for the presentation of an address after the misbehaviour or incapacity had been proved by enacting a law for the purpose to make it more definite and consistent. 48. Similarly, use of word motion to indicate the process of investigation and proof in the Judges (Inquiry) Act, 1968 because the allegations have to be presented to the Speaker does not make it motion in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is not subject to judicial review in view of Article 122. 51. 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. 52. Article 124(5) has no comparison with Article 119. Articles 118 and 119 operate in the same field viz. normal business of the House. It was, therefore, necessary to specifically prescribe that the law made under Article 119 shall prevail over the rules of procedure made under Article 118. Since Article 118 and 124(5) operate in different fields a provision like that contained in Article 119 was not necessary and even in the absence of such a provision, a law made under Article 124(5) will override the rules made under Article 118 and shall be binding on both the Houses of Parliament. A violation of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1). 53. Indeed, the Act reflects the constitutional philo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and the Chamber of Deputies. I feel that the Burmese analogue is neither inspiring nor instructive, and that the more highly evolved procedures of other democratic constitutions which have been tried and tested for centuries would have served us better. 55. Our conclusions, therefore, on contentions B, C and D are as under: The constitutional process for removal of a Judge upto the point of admission of the motion, Constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament. The Speaker is a statutory authority under the Act. Upto that point the matter cannot be said to remain outside the Court s jurisdiction. Contention B is answered accordingly. Prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for the lifting of the bar under Article 121 against discussing the conduct of a Judge in the Parliament. Article 124(4) really becomes meaningful only with a law made under Article 124(5). Without such a law the constitutional scheme and process for removal of a Judge remains inchoate. Contention C is answered accordingly. The Speaker while admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into judicial conduct and thereby maintain standards of judicial fitness. [P. 614] As to the stage at which there is a need for notice and opportunity to the Judge to be heard the statement of the law is : The general rule is that before a Judge may be disciplined, as by removal, he is entitled to notice and an opportunity to defend even though there is no statute so requiring. Ordinarily, the right to defend is exercised in a trial or hearing, as considered infra 51. More specifically the Judge is entitled to notice of the particular charges against him. In addition, notice of the charge should be given sufficiently in advance of the time for presenting a defence to permit proper preparation of a showing in opposition. (pp. 613-614) But negativing the position that the Judge would be entitled to notice even at the preliminary stage it is stated : Investigations may be conducted into matters relating to judicial conduct as a preliminary to formal disciplinary proceedings. A judiciary commission may conduct an investigation into matters relating to judicial conduct as a preliminary to formal disciplinary proceedings, and a court may, under its general powers ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andards of conduct, disabilities and privileges of Judges, it is observed: The State which creates a judicial office may set appropriate standards of conduct for a Judge who holds that office, and in many jurisdictions, courts acting within express or implied powers have adopted or have followed certain canons or codes of judicial conduct. The power of a particular court in matters of ethical supervision and the maintenance of standards for the judiciary may be exclusive. Guidelines for judicial conduct are found both in codes of judicial conduct and in general moral and ethical standards expected of judicial officers by the community. Canons or codes are intended as a statement of general principles setting forth a wholesome standard of conduct for judges which will reflect credit and dignity on the profession and insofar as they prescribe conduct which is malum in se as opposed to malum prohibitum they operate to restate those general principles that have always governed judicial conduct. Although these canons have been held to be binding on judges and may have the force of law where promulgated by the courts, except as legislatively enacted or judicially adopted they do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks. The court would then indeed be acting as a tribunal for the removal of a Judge. Learned counsel supporting the proposition stated that the effect of restraining a Judge from exercising judicial functions is not equivalent to a removal because the conditions of service such as salary etc. of a Judge would not be impaired. But we think that the general proposition that the court itself has such a jurisdiction is unacceptable. It is productive of more problems then it can hope to solve. 61. The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted. It is the entire Constitutional Scheme including the provisions relating to the process of removal of a Judge which are to be taken into account for the purpose of considering this aspect. It is difficult to accept that there can be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in Clauses (4) and (5) of Article 124 read with Article 121. No authority can do what the Constitution by necessary implication forbids. Incidentall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial functions during the interregnum. Since the learned Judge would continue to hold the office of a Judge unless he resigns or is removed, an arrangement to meet the situation has to be devised by the Chief Justice. The Constitution while providing for the suspension of a Member of a Public Service Commission in Article 317(2) in a similar situation has deliberately abstained from making such a provision in case of higher constitutional functionaries, namely, the Superior Judges and President and Vice-President of India, facing impeachment. It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension. Propriety of the desirable course has to be viewed in this perspective. It would also be reasonable to assume that the Chief Justice of India is expected to find a desirable solution in such a situation to avoid embarrassment to the learned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the Chief Justice of India be of the view that the interests of the institution of judiciary i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which enabled him to come to a decision. The Speaker in the very least ought to have ascertained the wishes of the House in this regard. The Speaker ought not to have decided to admit the motion in the manner he did on the last evening of the 9th Lok Sabha amidst din and noise, when what he spoke was also not entirely audible in the House. The Speaker is a high Constitutional functionary and ought to have exercised his functions in the highest traditions of the office of this high constitutional functionary. The Speaker ought also not to have dealt with the motion, the prime movers of which are members of his own party. The Speaker ought to have disqualified himself in this regard and placed the matter for the discussion of the House. The conduct of the Speaker in this entire episode was unbecoming of a high Constitutional functionary. The action of the Speaker is mala fide and deserves to be struck down on this count alone. The averments as to mala fides are intermixed with and inseparable from touching the merits of certain constitutional issues. Indeed, mala fides are sought to be impugned to the Speaker on the grounds that he did not hear the Judge, did not have the motion d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge was entitled to decline the invitation to offer his explanation to his detractors. No adverse inference as to substance and validity of the charges could be drawn from the refusal of the learned judge to recognise these forums for his vindication. While the members of the bar may claim to act in public interest they have, at the same time, a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpitude, the judge does not suffer irreparably in the very process. The 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. We wish the level of the debate both in and outside the Court was more decorous and dignified. Propriety required that even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed. The constitutional protection to Judges is not for their personal benefit; but is one of the means of protecting the judiciary and its independence and is, therefore, in the larger public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should happen if the Houses of Parliament choose to say that in their view the motion has lapsed? Would the court then go into the legality of the proceedings of the Houses of Parliament and declare the decision of the House void? The second area of the suggested source of in fructuousness is as to the consequences of the position that the Houses of Parliament would, notwithstanding the report of the committee, be entitled to decide not to present an address to the President to remove the Judge. It is, it is said, for the House of Parliament to discipline the Government if the House is of the view that Government is guilty of an illegal inaction on the Speaker s decision as ultimately the House has dealt with the committee s report. 69. On the first point there is and should be no difficulty. The interpretation of the law declared by this Court that a motion under Section 3(2) of the Judges (Inquiry) Act, 1968, does not lapse upon the dissolution of the House is a binding declaration. No argument based on an assumption that the House would act in violation of the law need be entertained. If the law is that the motion does not lapse, it is erroneous to assume that the Houses o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Although in substance their stand is similar, they are not consistent on some of the points debated during the hearing of the case. They have been supported in general terms by Ms. Indira Jaising and Mr. P.P. Rao, the learned Counsel representing the Supreme Court Bar Association, the petitioner in W.P. (C) No. 541 of 1991, and for the sake of convenience the petitioners in these two cases shall be hereinafter referred to as the petitioners. The opposite point of view has been pressed by Mr. Kapil Sibal, on behalf of Mrs. Raj Birbal, the petitioner in T.P. (C) No. 278 of 1991, Mr. V.R.Jayaraman intervenor in W.P. (C) No. 491 of 1991 and Mr. Shyam Ratan Khandelwal, the petitioner in W.P.(C) No. 560 of 1991; and in view of their stand, they shall be referred to as respondents in this judgment. 74. The Committee for the investigation into the alleged misbehaviour of the third respondent was constituted on 12.3.1991 under the provisions of the Judges (Inquiry) Act, 1968 (hereinafter referred to as the Act) by Shri Rabi Ray, the then Speaker of the Lok Sabha, not a party in W.P. (C) Nos. 491 of 1991 and 541 of 1991, but impleaded by Mr. Shyam Ratan Khandelwal as respondent No. 1 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sabha is concerned the respondents have supported the stand of the Union Government that the Motion has lapsed, but consistent with their plea of non-judicial, Mr. Sibal has indicated that it is for the House to decide this issue. Long arguments were addressed by the learned Counsel for the parties on the correct interpretation of Article 124(4) and (5) and the Act, and Mr. Sibal has contended that if the construction suggested by him of the provisions of the Act are not accepted, the Act has to be struck down either in its entirety or in part as ultra vires the Constitution. In W.P. (C) No. 560 of 1991 Mr. Shyam Ratan Khandelwal has, inter alia, prayed for declaring the Judges (Inquiry) Act, 1968 and the Rules framed thereunder as ultra vires Article 121 and 124(5) of the Constitution; for quashing the decision of the Speaker; and, for issuing a Writ of Mandamus to the Committee not to embark upon or proceed with the inquiry. He also wants a declaration that the Chief Justice of India cannot withhold allocation of work to the third respondent for discharging his judicial functions, and seeks for consequential directions in this regard. During the course of his argument, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in my final conclusion I agree with the respondents that the courts have no jurisdiction in the present matter, I do not agree with Mr. Sibal s contention based on an assumption of the very wide and exclusive jurisdiction of the Parliament in the general terms, as indicated during his argument. His stand that the Speaker could not have taken a decision singly also does not appear to be well founded. He strenuously argued that since the matter relating to the removal of a Judge is from the very beginning within the exclusive control of one of the Houses of the Parliament every decision has to be taken by the entire House and if necessary a debate will have to be permitted. As a result, the bar on discussion in the House on the Judges conduct will disappear from the initial stage itself, but that cannot be helped. He relied upon the interpretation of Mr. M.C. Setalvad on Clauses 4 5 of Article 124 as stated by him before the Joint Committee on the Judges (Inquiry) Bill, 1964 (being Bill No. 5 of 1964 which was ultimately dropped) and his view that the desired object of avoiding debate on the conduct of a Judge in the Parliament can be achieved only by the Speaker carefully exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi v. Raj Narain, [1976]2SCR347 , that rigid Separation of Powers as under the American Constitution or under the Australian Constitution does not apply to our country and many powers which are strictly judicial have been excluded from the purview of the courts under our Constitution. 81. Judicial power of the State in the comprehensive sense of the expression as embracing all its wings is different from the judicial power vested or intended to be vested in the courts by a written Constitution. The issue which arises in the present case is whether under the Constitutional scheme a matter relating to the removal of a Judge of the superior courts (Supreme Court or High Courts) is within the jurisdiction of the courts or in any event of this Court. On a close examination of the Constitution it appears to me that a special pattern has been adopted with respect to the removal of the members of the three organs of the State-The Executive, the Legislature and the Judiciary-at the highest level, and this plan having been consciously included in the Constitution, has to be kept in mind in construing its provisions. The approach appears to be that when a question of removal of a member of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account while framing and adopting a written constitution, which include the assurance to the people that the possibility of a subjective approach clouding the decision on an issue as sensitive as the one under consideration, has been as far eliminated as found practicable in the situation. And where this is not possible at all, it cannot be helped, and has to be reconciled by application of the doctrine of necessity, which is not attracted here. Hamilton, in The Federalist , while discussing the position in the United States, observed that when questions arise as to whether a person holding very high office either in the Judiciary or the Legislature or the President himself has rendered himself unfit to held the office, they are of a nature which relates chiefly to the injuries done immediately to the society itself. Any proceeding for their removal will, for this reason seldom fail to agitate the passions of the whole community and divide it into parties more or less friendly or inimical to the person concerned. The delicacy and the magnitude of a trust which so deeply concerns the reputation and existence of every man engaged in the administration of public affairs speak for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her countries, as aid to the interpretation of the legal position in relation to removal of Judges of the superior courts. Mr. Sibal laid great emphasis on the evidence of Mr. Setalvad and several other persons before the Joint Committee on the Judges (Inquiry) Bill, 1964. His argument is that the Bill was dropped as a result of the opinion expressed before the Joint Committee, and consequently another Bill was drafted which was ultimately adopted by the Parliament as the 1968 Act. The provisions of the earlier Bill, objections raised thereto, and the fact that the Act of 1968 was passed on a subsequent Bill, reconstructed immediately after the decision to drop the original Bill, are all permissible aids to the interpretation of the legal position which has to be ascertained in the present cases before us. Although the learned Counsel for the petitioners challenge their admissibility , portions of the documents referred to by Mr. Sibal were attempted to be construed on behalf of the petitioners as supporting their stand. In my view, it is permissible to take into consideration the entire background as aid to interpretation. The rule of construction of statutes dealing with this asp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he courtesy and respect that ought to prevail between the two prime organs of the State, the legislature and the judiciary , require the courts to make skilled evaluation of the extra textual material placed before it and exclude the essentially unreliable. Nevertheless the court, as master of its own procedure, retains a residuary right to admit them where, in rare cases, the need to carry out the legislator s intention appears to the court so to require. With a view to correctly interpret the Act which was the subject matter of that case, the history and the succession of events including the initial lowering the age of superannuation, the agitation consequent upon it, and the agreement that followed the agitation were all taken into consideration. I, accordingly, propose to briefly state the relevant background of both the Constitutional provisions and of the Act. 86. At the time of framing of the Constitution of India, the Constitutions of several other countries, which appeared to be helpful were examined, and a Draft was initially prepared. On the amendment moved by Sir Alladi Krishnaswamy Iyyar the relevant provision was included in the Draft in terms similar to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enabling in nature, and Clause (4) could not be interpreted as dependent on Clause (5). He relied on Mr. Setalvad s evidence before the Joint-Committee of Bill No. 5 of 1964. The stand of Mr. Shanti Bhushan, instructed by Mr. Prashant Bhushan, the Advocate-on-record on behalf of the petitioner in the leading case Writ Petition (C) No. 491 of 1991, has been that Clause (5) was merely enabling, but not in the sense as stated by Mr. Setalvad in his evidence. In the view of the latter, it is open to the Parliament either to follow the procedure laid down by an Act made under Clause (5) or to ignore the same in any case and adopt any other procedure. In other words, even after the passing of the 1968 Act, the Parliament can choose either to proceed according to the said Act or to act independently ignoring the same, Mr. Shanti Bhushan said that this is not permissible. Once the 1968 Act was enacted, the Parliament is bound to follow it, but earlier it was free to proceed as it liked. He, however, was quite clear in his submission that the exercise of power under Clause (4) could not be said to be conditional on the enactment of a law under Clause (5), and that to interpret the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ladi had strong objection. He called upon the members, not to provide a machinery consisting of five or four Judges to sit in judgment over a Chief Justice of the Supreme Court. Are you really serious about enhancing the dignity of the Chief Justice of India ? You are. I have no doubt about it . The clause was ultimately drafted as mentioned above vesting the power in the Supreme Parliament as there must be some power of removal vested somewhere . He pointed out that the matter was not being left in the discretion of the either House to remove a Judge, but ultimate sovereign power will be vested in the two Houses of the Parliament and, that is the import of my amendment . In this background, the Article was finally included in the Draft. Although as was clear from the statements of Sir Alladi as also the language used, the intention of the Sub-committee preparing the Draft was not to make Clause (4) dependent on Clause (5), still presumably with a view to allaying any misapprehension which could have arisen by including the entire provisions in one single clause, they were divided and put in two separate clauses and while so doing, the language was slightly changed to empha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the Article. There is a complete unanimity before us, and rightly so, that the object of Article 121 to prevent a public discussion of the conduct of a Judge is in public interest and its importance cannot be diluted. Mr. Shanti Bhushan elaborated this aspect by saying that any such discussion in the House is bound to be reported through the media and will thus reach the general public and which by itself, irrespective of the final outcome of the discussion, will damage the reputation of the Judge concerned and thereby the image of the entire judiciary; and must not, therefore, be permitted until a report against the Judge after a proper inquiry is available. Mr. Sibal also agreed on the significance of Article 121 and relied on the views of several eminent international jurists, but we need not detain ourselves on this point, as there is no discordant note expressed by anyone before us. The question, however, is as to whether the object of Article 121 will be defeated, if Clause (4) of Article 124 is construed as complete in itself and independent of Clause (5), and Clause (5) be understood as merely giving an option to the Parliament to enact a law, if it so chooses; and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses. The Lok Sabha Rules framed under Article 118 of the Constitution deal with motions in Chapter XIV. There are separate rules of procedures for conduct of business adopted by the Rajya Sabha. In view of the facts of this case, I propose to refer only to the Lok Sabha Rules. Section 3(1) of the Judges (Inquiry) Act, 1968 states that if a notice of motion is given for presenting an address to the President for the removal of a Judge, signed, in the case of a notice given in the Lok Sabha, by not less than 100 members, and in the case of a notice given in the Rajya Sabha, by not less than 50 members of the House, the Speaker or the Chairman, as the case may be, after consulting such persons as he deems fit, as also such relevant materials which may be available to him, either admit the motion or refuse to admit the same. The manner in which this section refers to motion in the Act for the first time without a definition or introduction clearly indicates that it is referring to that motion which is ordinarily understood in the context of the two Houses of Parliament attracting their respective rules. Section 3 does not specify as to how and to whom this notice of motion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the Act, by declaring that it remains pending in the House. Section 6 deals with the matter from the stage when the report of the Committee is ready and Sub-section (1) says that if the report records a finding in favour of the Judge, the motion pending in the House shall not be proceeded with. If the report goes against the Judge, then the motion referred to in Sub-section (1) of Section 2 shall, together with a report of the Committee, be taken for consideration by the House or the Houses of Parliament in which it is pending . The Act, therefore, does not leave any room for doubt that the motion remains pending in the House and not outside it. This is again corroborated by the language used in Proviso to Section 3(2) which deals with cases where notices of motion under Section 3(1) are given on the same date in both Houses of Parliament. It says that in such a situation, no Committee shall be constituted unless the motion has been admitted in both Houses and where such motion has been admitted in both Houses , the Committee shall be constituted jointly by the Speaker and the Chairman. The rule making power dealt with in Section 7 is in the usual terms enumerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. The concept of the original Motion being pending in the House, to be taken up for debate and vote on the receipt of the report of the Committee, is the life and soul of the Act, and if that Motion disappears nothing remains behind to attract the Act. This idea runs through the entire Act and the Rules, and cannot be allowed to be replaced by a substitute. The existence of a Motion pending in the House is a necessary condition for the application of the Act. Bereft of the same, the Act does not survive. It is, therefore, not permissible to read the Act consistent with the stand of the petitioners that the House is not seised of the Motion and does not have anything to do with the inquiry pending before the Committee, until the report is received. If Clauses (4) and (5) of Article 124 are construed as suggested on behalf of the petitioners, the Act will have to be struck down as ultra vires, or in any event inoperative and infructuous and on this ground alone the Writ Petitions are liable to be dismissed. 96. It has been contended that if the Motion is held to be pending in the House on its admission, the object of Article 121 shall be defeated. The apprehension appears to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 124 to leave the removal of a Judge in the hands of the Parliament would be frustrated. In answer to a query of the Chairman of the Committee, Mr. Setalvad said that as a result of the provisions of the Bill (then under consideration) the Parliament would be completely kept out until a finding of another body was received by the House and this would militate against the constitutional scheme. In this background when his attention was drawn to the bar of Article 121 he replied that it was possible to prevent a premature discussion in the Parliament, by the Speaker exercising his authority with discretion. He referred to the Lok Sabha Rules in this context and further recommended for the Speaker to be vested with larger powers. He was emphatic that the President should not be entrusted with the matter, even at the initial stage, and that it should be left in the hands of the Speaker to take appropriate steps. The suggested substitution of the Speaker (and the Chairman) in place of the President was in accordance with the view that the matter is within the exclusive domain of the two Houses of the Parliament which could exercise its powers through the respective representatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mportant step in this history of legislation and can be referred to as such. 98. The wider proposition put forward by Mr. Sibal that the House was seised of the matter so effectively as to entitle every member to demand a discussion in the House at any stage is, however, not fit to be accepted. This will not only violate Article 121, but also offend the provisions of the 1968 Act. It is not correct to assume that if the right of the individual member to insist on immediate discussion is denied, the consequence will be to deprive the Parliament of the control of the motion. When the Speaker exercises authority either under the Lok Sabha Rules or under the 1968 Act, he acts on behalf of the House. As soon as he ceases to be the Speaker, he is divested of all these powers. When he acts the House acts. It is another matter that he may consult other persons before admitting the motion, and while so doing, he may consult the members of the House also, but without permitting a discussion in the House. The consultation, which the Act permits, is private in nature, not amounting to a public discussion while the object of Article 121 is to prevent a public debate. It may also be open to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The alternative suggestion of Mr. Shanti Bhushan that the motion, on its admission, having served its purpose, is completely exhausted, and a new motion is to be moved again by a member on the receipt of the Report from the Committee, has also no merit, for if the motion completely exhausts itself and therefore does not remain in existence any further, no problem about the lifting of the bar under Article 121 arises for being solved with the help of a legal fiction. An attempt was made by Mr. Shanti Bhushan to derive some support from that part of Clause (4) of Article 124 which requires the voting in the two Houses to take place in the same session. The provision appears to me to be absolutely irrelevant. The clause does not require that the entire proceeding with respect to the removal of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in control of the matter from the very beginning till the end, and it acted correctly in accepting the objections of the Joint-Committee to the original Bill, aforementioned, and in passing the Act of 1968, in the form we find it. By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter, the House is brought in control of the proceeding through its representative the Speaker or the Chairman. It has to be noted that the ground of proved misbehaviour or incapacity is necessary only for putting the matter to vote in the House under Clause (4), and is nut a condition precedent for initiating a proceeding and taking further steps in this regard. 101. Mr Sibal projected another extreme point of view by contending that a finding of the Committee in favour of the Judge cannot be held to be binding on the Parliament on account of the limited scope of a statute passed under Clause (5). There is no merit in this argument either. Clause (4) authorises the Parliament to act on the ground of proved misbehaviour or incapacity and Clause (5) permits it to pass a law to lay down the manner in which it may become possible to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s apply to it with greater force. So long as the statute enables the House to maintain its control either directly or through the Speaker, the entrustment of the investigation does not amount to abdication of power. It is a case where the Parliament has taken a decision to respect the verdict of the Committee in favour of the Judge, consistently with Clause (4) and no fault can be found. 102. It has been stated on behalf of the respondents that the question whether the Motion against the respondent No. 3 has lapsed as a result of the dissolution of the old House is agitating the minds of the members of the Lok Sabha and the issue is under consideration of the new Speaker. In support, he produced a copy of the proceeding of the House. If the present Speaker holds that the Motion has lapsed, and the Committee does not have any duty to perform, the proceeding cannot be proceeded with any further. In reply the learned Counsel for the petitioners claimed that after the matter is entrusted to the Committee, neither he nor the Parliament at this stage can undo the admission of the Motion by the earlier Speaker, or withdraw the investigation. If the petitioners are right, then what happ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken by the framers of the Constitution to this aspect and the matter was examined from every possible angle, before adopting the scheme as indicated earlier. So far as the district courts and subordinate courts are concerned, the control has been vested in the High Court, but when it came to the High Court and Supreme Court Judges, it was considered adequate for the maintenance of their independence to adopt and enact the Constitution as we find it. I do not see any reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and I do not have any ground for suspicion that the Members of Parliament or their representatives, the Speaker and the Chairman, shall not be acting in the true spirit of the Constitutional provisions. Similarly, the task of enacting a law under Clause (5) was taken up seriously by considering every relevant aspect, and the process took several years before the Act was passed. I do not propose to deal with this point any further beyond saying that the mandate of the Constitution is binding on all of us, and I would close by quoting the following words from Hamilton: If mankind were to res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Constitution as they do not appear to be helpful at all. As has been mentioned earlier the language of Article 124(4) is similar to Section 72(ii) of the Commonwealth of Australia Constitution Act (1900), except with this difference that the Australian Constitution Act does not specifically provide for any law to be made for regulating the procedure and investigation. However, the constitutional and the legal position in Australia is not helpful to resolve the present dispute before us, as the Commonwealth of Australia Constitution Act (1900) has adopted rigid Separation of Powers between the Executive, Legislature and Judiciary (as has been observed by this Court on many occasions including at page 415 in Smt. Indira Gandhi v. Raj Narain, [1976]2SCR347 , referred to above in paragraph 9. Reference has been made by P.H. Lane in his commentary on the Australian Constitution to the proceedings which were initiated for removal of Mr. Justice Murphy under Section 72 (ii) of the Constitution Act. On account of sharp difference amongst the members of the Select Committee of the Senate appointed to inquire into the matter and a further failure to resolve the situation by establishing a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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