TaxTMI 
TaxTMI 
1992 (8) TMI 277
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....ther facts herein and it would suffice to say that both these petitions are a sequel to the decision in Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699 : (1991 AIR SCW 3049) -and were filed prior to Writ Petition No. 514 of 1992 (reported in 1992 AIR SCW 2683) - Mrs. Sarojini Ramaswami v. Union of India - which has been disposed of by us earlier today by a separate judgment pronounced therein giving all relevant facts. 2. Petitioner Raj Kanwar (in Writ Petition No. 140 of 1992) alleges that the notice of motion by 108 members of the Ninth Lok Sabha, its admission by the then Speaker of Lok Sabha and constitution of the Inquiry Committee under S.3(2) of the Judges (Inquiry) Act, 1968 are unconstitutional being violative of Art. 124(4) of the Constitution. It is also asserted in that Writ Petition that the judgment in Sub-Committee on Judicial Accountability is violative of Art. 145(3) of the Constitution and hence void ab initio. On this basis, the relief sought in Writ Petition No. 140 of 1992 is as under :- "a) issue appropriate writ, order or direction quashing (1) the notice of motion for presentation of an address to the President for the remova....
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....ort to Mr. Justice V. Ramaswami before submitting it to the Speaker under S. 4(2) of the Judges (Inquiry) Act, 1968 to enable the learned Judge to seek judicial review of the finding of 'guilty', if any, against him made in the report of the Committee. We have disposed of that writ petition by a separate judgment pronounced earlier today. We are, therefore, confining the decision of these petitions only to the points raised herein which survive for decision. 5. We had concluded the hearing of these writ petitions before the hearing was commenced in Writ Petition No. 514 of 1992, but at the request of Shri Kapil Sibal, senior counsel appearing for the petitioner in Writ Petition No. 149 as well as in Writ Petition No. 514, we deferred the decision in these writ petitions till now. In Writ Petition No. 149, we have heard Shri Kapil Sibal for the petitioner, the Attorney General of India for the Union of India and Shri F. S. Nariman for the Inquiry Committee. In addition, we have also heard Shri Shanti Bhushan and Shri Jitendra Sharma who represented the interveners viz. Sub-Committee on Judicial Accountability and Supreme Court Bar Association. Raj Kanwar, petitioner in Writ....
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....r whether the petitioner should move an application for impleading Mr. Justice V. Ramaswami as a party'. The matters were adjourned to the next day at the request of Shri Sibal. On 7-5-1992, Shri Sibal informed us that the petitioner does not want to implead Mr. Justice V. Ramaswami as a party and that he had decided to pursue the writ petition as framed in its present form. In the other writ petition (W.P. No. 140) also, Mr. Justice V. Ramaswami is not a party and the. petitioner's stand is the same; and, therefore, the question of maintainability of these writ petitions for the reliefs claimed herein in the absence of Mr. Justice V. Ramaswami as party is common to both of them. These matters were, therefore, heard on the question of maintainability indicating that in case these petitions are held to be maintainable for the reliefs claimed herein in the absence of Mr. Justice V. Ramaswami as a party, then the matters may be heard further on merits. 8. We have reached the conclusion that both these petitions must be dismissed on this preliminary ground and, therefore, the question of hearing these petitions further does not arise. 9. In view of the fact that the petitione....
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....able to appreciate or accept this argument. 12. The points raised in these petitions in the context of Clauses (4) and (5) of Art. 124 of the Constitution and the law enacted under Art. 124(5) are bound to arise only in the context of a holder of the high office of a Judge of the Supreme Court or a High Court and at a time when he faces proceedings for his removal so that the decision thereon is bound to affect the interest of the concerned Judge. If the occasion for requiring a judicial adjudication arises in this context at a time when a particular Judge is facing proceedings for his removal from office as in the present case, the reason advanced by learned counsel for not even impleading him as a party in the petition appears to be tenuous, Anyone facing such a proceeding and wanting to challenge it has to do it himself. It is not possible to predict the outcome of the decision on merits of the points raised in these petitions and, therefore, the likelihood of a conclusion adverse to the interest of the learned Judge being a possibility, an effective adjudication of the same in his absence is not feasible which alone is a sufficient reason to decline consideration of the ....
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....ering and deciding the question of grant of reliefs claimed in the petitions for the benefit of Mr. Justice V. Ramaswami in his absence even as a party. Ordinarily, it is the person aggrieved and directly affected who must seek the relief himself unless disabled from doing so for a good reason which permits someone else to seek the relief on his behalf. In that situation also the claim is made in substance by the person affected even though the form be different and it is so stated expressly. The only reason given for the learned Judge not doing so, by Shri Sibal, has been considered by us earlier and not found sufficient to support his submission. We may also mention that in a similar situation Mr. Justice Murphy of the High Court of Australia, the apex Court of that country, while facing proceedings for his removal from office, had brought an action for injunction to restrain the proceedings against him in his own name. The judgment of the High Court of Australia in that matter is Murphy v. Lush, (1986) 65 ALR 651. That case is referred only to indicate that the grievance in a similar situation was made by the concerned Judge of the apex Court himself and not by someone else even....
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....ch in Sub-Committee on Judicial Accountability particularly when the plea is not even made by the concerned Judge himself and the attempt to reagitate those points is related to the same learned Judge facing the same proceedings for his removal. Antulay's case (AIR 1988 SC 1531) is also distinguishable for the reason that therein the result of the earlier decision against him challenged by Antulay in the petition under Art.32 had the effect of conferring jurisdiction on a Court contrary to the specific statutory provision; and the error in the earlier judgment to this effect was considered to be sufficient for Antulay himself to challenge that decision by an independent writ petition instead of a review petition. Moreover, judgment of Mishra, J. as well as that of Mukharji, J. as their Lordships were then, give a clear indication that the decision therein was not intended to be a precedent and was confined to the peculiar facts and circumstances of that case. This distinction is sufficient to hold that Antulay does not permit these petitioners to claim reconsideration of the earlier decision in these circumstances. 17. Shri Sibal contended that the petitioners not being ....
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....inion that in a matter of this kind, it was not only unnecessary but also inappropriate to permit the hearing being converted into a debate for participation of every individual in the name of public interest. We do not think that the persistence of Raj Kanwar is in public interest. 20. The view we are taking of the role of petitioner, Raj. Kanwar, in Writ Petition (Civil) No. 140 of 1992 is in consonance with the decision in S. P. Gupta v. Union of India, 1981 (Supp) SCC 87 : (AIR 1982 SC 149) wherein this aspect was considered at length. In his petition as well as in written submissions all that he said was to seek relief on merits on the points raised which are concluded by earlier Constitution Bench decision without even showing as to how he is entitled to make the claim. Later he added that the absence of the Judge is immaterial and the points be decided without any relief being granted to anyone. 21. The basis of the right claimed by the petitioner, Raj Kanwar, has to be found in some principle to amount to the right of the kind he claims. There is no special injury to him alleged and, therefore, the right he claims is no better than that available to every other advocate i....
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....the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want." (Paras 24, 25, pages 219-220) (of (Supp) SCC: (Paras 23-24, at p. 195 of AIR) xxx xxx xxx xxx xxx "We have taken a broad and liberal view in regard to locus standi and held that any public-spirited advocate acting bona fide and not for private gain or personal profit or political motivation or any other oblique consideration, may file a writ petition in the High Court challenging an unconstitutional or illegal action of the Government or any other constitutional authority prejudicially affecting the administration of justice and in such writ petition he may claim relief not for himself personally but for those who are the direct victims of such unconstitutional or illegal action, because granting such relief ....
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.... the same to disabuse the mind of persons, like Raj Kanwar, who insist that they have such a right in the abstract. Petitioner Raj Kanwar could have served the public interest better if he had assisted Shri Kapil Sibal in the main petition, assuming he had something additional to say. The assertion of petitioner Raj Kanwar that he has any such right in the abstract is misconceived. 26. Even though the hearing in these petitions had concluded before we heard Writ Petition No. 514 of 1992 (reported in 1992 AIR SCW 2683), yet we deferred the decision of these writ petitions till now on the express request made by Shri Kapil Sibal not to decide these matters before deciding Writ Petition No. 514 of 1992. 27. We add that on a reconsideration of the matter in the light of the exposition of law made by Brother K. Ramaswamy in his separate opinion circulated to us, we regret our inability to concur with him in the area of his disagreement. On the points decided by us, leaving open the points which do not arise at this stage for our consideration for the reasons we have given, preferring to follow the salutary practice of not deciding any question, much less a constitutional one, unless i....
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....abha is valid; his action under the Act is outside the Parliament, it did not lapse and directed the Union of India to notify his constituing the Committee under S. 3(2) of the Act. Pursuant thereto a notification was issued by the central Government. The Secretary to the Committee issued notice in Form I of the Judges (Enquiry) Rules, 1969 (for short 'the Rules) on January 14, 1992 communicating definite charges and requested Mr. Justice V. Ramaswami to put in his written statement of defence on or before February 4, 1992 and to appear either in person or through counsel on February 10, 1992 along with his evidence. At request, George Fernandoz, Jaswanth Singh, SCJA and the petitioner were permitted only to assist the Advocate of the Committee to prove the case against the Judge and to keep secrecy of the facts and the proceedings. The petitioner's insistence to prove the innocence of the Judge was not acceded to. So he filed the Writ Petition. 31. When the matter came up for admission before a Bench of three Judges on February 27, 1992 to which one of us (K. J. Reddy, J.) was a member, having heard the learned counsel Sri Sibal, formulated the following five questions, a....
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....utilated the 'sui juris' character of the investigation and thereby rendered the proceedings illegal and wholly inconsistent with the principles of natural justice. (4) If the provisions of sub-secs. (3) and (4) of S. 3 are read to mean that they empower the Committee to frame charges without holding a preliminary investigation at which the concerned Judge may participate, the said two sub-sections would be rendered ultra vires Art. 124(5) of the Constitution. (5) When the Constitution. Bench decided the case Sub-Committee on Judicial Accountability v. Union of India (1991) 4 SCC 699 : (1991 AIR SCW 3049) the proceeding which took place in the House of People were not before it, which proceedings now available, clearly indicate that the Speaker himself was alive to the fact that he was constitutionally obliged to place the notice before the House and his decision on the admission of the notice was to depend on the collective wisdom of the House. In view of this factual aspect reflected in the proceedings of the House, the decision of the Constitution Bench needs reconsideration. The Secretary of the Committee and the interveners exchanged their respective pleadings and ....
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..... Only after the investigation, finding that there is prima facie material or evidence, definite charges shall be framed, followed by an enquiry conducted against the learned Judge after giving reasonable opportunity. The enquiry shall be confined only between the learned Judge and the committee. The Advocate appointed to assist the committee cannot proceed as if he is a prosecutor against the learned Judge. The committee did not inform the Judge before hand as to what procedure it seeks to follow in this matter. The committee committed manifest illegality in permitting Messrs. George Ferandez and Jaswanth Singh and the SCJA to participate as persecutors against the learned Judge. They have no locus standi either to participate or adduce evidence against the Judge. The specious plea of purity of judicial administration is an actuated pretence to malign the Judge. The evidence establishes that the advocate for the committee along with the advocates of the Members of Parliament and the SCJA had prior consultations and in fact tutored the witnesses before the proceedings commenced which is repugnant to the dignity of Judicial process impinging upon Art. 21 as an unfair procedure. The ....
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....versary process whereas S.4(l) encompasses both. "Investigation" acquired distinct connotation under Item 8 of the List I of 7th schedule to collect evidence to facilitate enquiry or trial. In support thereof he placed reliance on the provisions in the Code of Criminal Procedure. During the investigation the authority is empowered, without predisposition, to sift the evidence and the enquiry confines to the field of proof of the charge for the determination of the guilt or innocence and to record a finding in that behalf. This would be done as an independent Tribunal or as Court after giving opportunity to the contending parties to adduce evidence. Its endeavour is to bring out the truth and not to bolster up the case The counsel for the tribunal has no role to play in proof of misbehaviour against the Judge. There can be neither a counsel for nor witnesses of the Committee. It is enjoined to adjudicate the credibility of evidence and reach its conclusions of guilt or innocence but not to act as prosecutor to prove the case against the Judge. The correctness of the procedure adapted by the Committ....
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....uct the enquiry into the definite charges and the Advocate be appointed to assist the committee to prove the charges framed against the learned Judge by adducing evidence. The committee consists of eminent members having long judicial experience an impeccable integrity and erudite. The proceedings before the committee are in the nature of a trial of a civil suit in which the learned Judge or his counsel and the Advocate alone are entitled to participate and lead evidence. Permission to third party to participate in the proceedings flows from the discretion of the committee to adopt its own procedure and in exercise thereof limited right to participate in the enquiry was given to third parties. The committee has to submit its report recording finding/ findings whether or not the charge or charges has/have been .proved. If the committee finds that charges have been proved, then the political process under Art. 124(4) again would revive. If the committee finds that the charges have not been proved, then the Speaker has to drop the proceedings in terms of the Act and the Rules. The petitioner cannot seek the reliefs asked for in the writ petition. The Judge alone is entitled to impugn....
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....ars vital importance. It is trite to burden the judgment with bead roll of precedents but suffice to reiterate that any member of the public having sufficient interest could maintain an action for judicial redress from public inquiry arising out of the breach of public duty or of law and seek enforcement of such public, constitutional or legal duty. Strict rule of locus was relaxed and personal right enforcement was whittled down. The ratio in S.P. Gupta v. Union of India (1982) 2 SCR 365 at p. 530 D to F : (AIR 1982 SC 149 at p. 194) is an authority on this score. In the public interest, therefore, any person genuinely interested to uphold independence of the judiciary and the law would get sufficient interest and acquires locus to seek to lay down public law in that behalf. The writ petition, therefore, should not be thrown out on the ground that the petitioner lacks locus to litigate the lis. But every Advocate need not be heard which would be only a surplusage at the hands of Raj Kanwar. In that behalf I agree with the view of brother Verma, J. 36. The question then is whether the writ petition is by way of a review of the earlier decision. It is settled law that a judgment of....
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....r dealings or legal affairs in accordance with law. The law laid down by this court operates as precedent. The law laid, thus, needs stability, continuity and certainty. The judicial vacilation would undermine the respect for the law and the utility of the very judicial process as well as its efficacy. We are bound by the taught traditions and built-in heritage of law. Adherence to precedents, stare decisis, is usually a wise policy for rule of law unless we have clear, compelling and substantial reasons for its reconsideration in the larger public interest. Reconsideration of an earlier view is not due to an act of judicial fallibility but an index of supremacy of law. So when all the relevant provisions of law or material aspects of the case or binding precedent was not brought to the notice of the court and its impact on the general administration of law, it would need reconsideration. The obvious error committed by the court leading to miscarriage of justice would need correction by Art. 142 or S. 114 read with Order 47 Rule I or S. 15 1, C. P.C. etc. But by itself it is not a. licence to unsettle the settled law or keep the law at variance at pleasure or whim. 39. This Court ....
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....hip or mischief? These and other relevant considerations must be carefully borne in mind whenever this court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court." 40. In Union of India v. Raghubir Singh (1989) 2 SCC 754: (AIR 1989 SC 1933), para 24, this Court laid stress on the importance of finality of decisions rendered by the Constitution Bench of this Court; it could only be upset where the subject was of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that "it is wiser to be ultimately right rather than to be consistently wrong". The majority ratio in A. R. Antuley v. R. S. Naik (AIR 1988 SC 1531) (Supra) rests upon its peculiar facts offending Arts. 14 and 21 and so the earlier direction for trial by a High Court Judge was reversed. The rule of law laid by this court, from the above perspective, in SCJA's case (1991 AIR SCW 1573) is clear, precise, certain and needs to maintain consistence. It is, therefore, no....
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....pondent, his absence too would stand to no impediment to declare public law which would bind him too. In that view, it must be held that the petitioner being a legal practitioner would be entitled to seek only declaration of law of certain aspects which would be adverted to hereinafter. 43. This Court in SCJA's case (1991 AIR SCW 1573) held that the Speaker of the House of the People is a "statutory authority". Under Art. 93 of the Constitution, the House of the People having chosen the Speaker, he/she holds the office till he/she ceases as per Art. 94 to be a member of the House of the People or removed or resigned. The office of the Speaker is of trust by the House of the People elected by adult franchise by the people. Under S. 3(1) (a), on presentation of a motion praying for the removal of a Judge signed by not less than 100 members of the House of the People, "the Speaker, "may" under S. 3(1) of the Act, after consulting "such persons", if any, as he thinks fit and "after considering such material", if any, as may be available to him either admit the motion or refuse to admit the same. 44. The primary requisite which the Speaker is enjoined to do is to find whether the....
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....nistration of justice and independence of the judiciary in the estimate of the general public". Existence of definite material or evidence in support of the grounds of the motion, before initiation of the motion -for removal of the Judge is, thus, a condition precedent. Lest it would be an open invitation to initiate, for obvious reasons, proceedings to remove the Judge and then resort to collecting perjured evidence in support thereof against the judge which is subversive of judicial independence and a death- knell to rule of law. Action in any other way, the Speaker would forfeit the trust reposed by the founding fathers of the constitution in that office as well as the confidence of the House of People, i.e. the people of Bharat themselves. The fact that the Committee framed charges from the record transmitted by the Speaker fortifies that he had before him definite material and it furnishes presumptive inference that he had due consideration thereof before admitting the motion. 45. The question then is the scope of judicial review of the admission of the motion by the Speaker. Arts. 32, 131 to 136 entrust in express terms judicial review to the Supreme Court; in particular. Ar....
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.... by the Speaker and decision to admit the motion; his immediate constituting of the Committee under S. 3(2) of the Act; drawing up of definite charges by the Committee and investigation for proof of misbehaviour or incapacity after adhering to the procedure envisaged therein; recording finding or findings- thereon and transmission of the report and the evidence to the Speaker and in case of proof of misbehaviour or incapacity placing the report and the evidence on the floor of the House and address by each house and majority resolution recommending to the President to remove the Judge. The entire process though integral, all the steps in the process do not take the same colour of judicial -process but bear different contours. The initiation of the motion is statutory and address by each house and resolution recommending removal of the Judge are political processes. Its admission, the constitution of the committee are statutory functions. Investigation by the Committee is judicial process. The Speaker, in this setting, acts neither as an Executive authority nor as a quasi-judicial authority. He merely discharges the functions of high constitutional responsibility. His decision to ....
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....red to in clause (b). It is his individual choice to constitute the Committee after obtaining the consent of the concerned member/members. The constitution of the Committee, therefore, without consultation of the Chief Justice of India or his nomination of any of the members is not per se illegal. It is desirable and salutary that the Speaker and Chairman of the Rajya Sabha may set up convention in this behalf. As it is a first case the failure thereof is neither subversive of Art. 124(5) nor dehors S. 3(2) of the Act. The Act fastens no obligation to ascertain collective wisdom of the House 'through either political parties or their floor leaders. The further contention that the Speaker ought not to have directly approached a sitting Judge of this Court seeking his consent in terms of S. 3(2)(a) of the Act, also lacks substance. The further contention that the sitting Judge of this court and the Chief Justice of Bombay High Court are not performing their normal constitutional duties when they act as members of the Committee under the Act unless the President of India gives his consent and treats the function as part of their duties by a notification does not appear to be well ....
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....) before submitting the report coupled with the duty to conduct ex parte enquiry under rule (8), if the Judge refuses to participate, does indicate that the Parliament intended that the investigation into the misbehaviour or incapacity of the Judge, shall be confined only between the advocate appointed under S. 3(9) of the Act and the learned Judge or his counsel who alone are entitled to participate and lead evidence in proof or disproof of the charges and be heard. By necessary implication, the Act and the Rules exclude participation or adduction of evidence by any other person to prove the alleged misbehaviour or incapacity. In the virgin area, the Committee appears to, have permitted them hedged with conditions to subserve the purpose. But none should be permitted to sully the reputation, integrity or conduct of the Judge concerned by subsequently fabricating any material or adduction of evidence dehors the one already placed before the Speaker who transmitted to the Committee or the one summoned by the Committee. The contention of Sri Shanti Bhushan that 108 members who moved the motion are interested to participate and prove the charges against the Judge runs counter to the s....
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....vestigation and protraction for publicity seeding insidious effects. It is transparent from the scheme that any evidence sought to be used against the Judge must be laid by the requisite members of the house of people or Rajya Sabha before the Speaker/ Chairman and none be permitted thereafter. Take for instance that in the motion the grounds of misbehaviour with material facts or particulars were made and photostat copies in support thereof were enclosed. To satisfy and ensure correctness, authenticity and reliability the Enquiry Committee may summon the original records even before framing a charge. On a charge of corruption the grounds with material particulars were mentioned and the source was also specified. But there may not be any documentary evidence, in support thereof. Often would not be available, or the person in possession of such evidence may not be willing to commit himself before hand. The Committee has discretion depending upon the nature of the source or its dependability or reliability to frame a charge or may summon the person to swear to an affidavit and later may be examined as a witness or to tender occular evidence at the investigation and be subjected to c....
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....pplied). Sub-sec. (4) thereof contemplates of communication in Form I of the Rules, of those charge/ charges so framed, together with a Statement of the grounds on which each such charge is based. On consideration of the grounds and the material or evidence in the motion the definite charge/ charges are to be framed which is the foundation to start investigation to prove the charges. Members of the Parliament are not familiar to or versed with the process or distinction between grounds and charge. They need to state the grounds and it is the duty of the committee to scan the evidence or material and to frame definite charge or charges. A reasonable opportunity for presentation of the written statement of the defence within a specified time should be given to the Judge who has the right to object in writing to the sufficiency of the framed charges. If the objection is sustained, the Committee would amend the charges under S. 3(8) read with Rule 7; and the Judge be given reasonable opportunity to present fresh written statement. If the Judge admits that he is guilty of misbehaviour or suffers from incapacity, the Committee shall record such admission and may state its finding on each....
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.... 54. A resume of the fascicule of these provisions would show that the committee has been empowered to regulate its own procedure, as is exigible, based on fact situation, to make investigation into the charge/charges of the misbehaviour or incapacity of the Judge consistent with the Act; Rules and fair play like the trial of a civil suit. If the Committee finds that there is no prima facie evidence to frame even charges, the need to proceed further into the charge/charges is obviated. It would be entitled to record findings together with a statement of general observations of the case and would submit its report that the record or facts do not warrant even the framing of a charge or charges or investigation, it would be a futile exercise, and retransmit the record to the Speaker in terms of the Act and the Rules. Framing of charges is thus the foundation for investigation. By necessary implication it excludes the adaptation of, inquisitorial process. If the committee finds prima facie case it would be open to it to frame defininte charge/charges and would ensue follow up action. The power under S. 3(5) is to summon the original record from proper custody or any record in support ....
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....istrative Law, 5th Edn. at p. 803 has stated that : "It is fundamental that the procedure before a tribunal, like that in a Court of law, should be adversary and not inquisitorial. The tribunal should have both sides of the case presented to it and should judge between them, without itself having to conduct an ,inquiry of the own motion, enter into the controversy and call evidence for or against either party. If it allows itself to become' involved in the investigation and argument, parties will quickly lose confidence in its impartiality, however fair minded it may in fact be." 57. The word 'Investigate' was defined in Black's Law Dictionary, 6th Edition, at p. 825 thus : "To follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry." 58. The word 'investigation' was defined at p. 825 thus : &n....
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....". The words investigation and inquiry used in Art. 124(5), the Act and the Rules are interchangeable and do not take different colours from varied contexts but connote the same theme to prove/disprove misbehaviour or incapacity charged against the Judge beyond reasonable doubt. 60. The problem could be broached through a different perspective as well. In normal parlance, in a criminal case, investigation connotes discovery and collection of evidence before charge-sheet is filed and based thereon definite charges are framed. Enquiry by a Magistrate is stopped when the trial begins. The trial is a culminating process to convict or acquit an accused. In Service Jurisprudence, departmental enquiry against a delinquent employee, bears similar insignia to impose penalty. At the investigation stage the accused or the charged officer has no say in the matter nor is he entitled to any opportunity. The disciplinary authority or enquiry officer, if appointed, on finding that the evidence discloses prima facie ground to proceed against the delinquent officer, the enquiry would be conducted. The Criminal Court frames charges after supplying the record of investigation relied on. Equally, the ....
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....al creed and left the choice to the high judicial authority to adopt its own procedure to investigate into the charges of misbehaviour while adhering to the scheme of the Act, the Rules and fair play. the removal of a Judge is paved by a judicial verdict after following fair and just procedure. It is, therefore, most efficacious, most salutary and the best mode in vogue in the world's democratic countries to uphold independence of the judiciary. Thus it must be held that the Act and the Rules provided built-in fair procedure to prove the alleged misbehaviour or incapacity of a Judge. It is akin to adversorial and trial of a civil suit and the Committee acts as an independent "Judicial statutory authority". The provisions are consistent with Articles 124(4), 14 and 21 of the Constitution of India and they are not ultra vires of the Constitution. 62. The contention of Sri Altemeas Rein that since the learned Judge, on his elevation as a Judge of the Supreme Court, had vacated his office as Chief Justice of the Punjab and Haryana High Court, the alleged misbehaviour, if any, would cease to be relevant and that his conduct, i.e. his misbehaviour as a Judge of the Supreme Court alo....
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....rticles 121 then lifts the rigour of the total ban of public discussion against the conduct of the Judge only when the finding of proved misbehaviour or incapacity was recorded by the Committee; the report together with the evidence, the source material for discussion, was laid on the floor of each House of Parliament under Section 6 of the Act read with Rule 9(5) of the Rules and discussion was initiated, that too of the concerned Judge. The process for removal of the Judge had initiation from statutory process but, finding of "proved misbehaviour" was recorded by Judicial process and final act of removal by the President was after an address on the floor of each House of Parliament as political process determined by majority resolution as enjoined by Art. 124(4) of the Constitution. Obviously, Article 121 accords to the members of the Parliament full freedom to discuss the conduct of the Judge vis-à-vis proved misbehaviour and may concur with the committee or vote down the motion i.e. the presumptive finding is that the charge is deemed to have been proved or disproved under Section 6(3) or even if proved facts do not warrant removal of the Judge. Otherwise, there is a tot....
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.... constitutes the cornerstone and the foundation on which our democratic polity itself is to rest and work on sound principles. 66. To keep the stream of justice clean and pure, the judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. The judges of higher judiciary should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law. 67. From this constitutional orientation ....
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.... higher judiciary per se does not amount to misbehaviour. Wilful abuse of judicial office, wilful misconduct in the office, corruption, lack of integrity, or any other offence involving moral turpitude would be misbehaviour. Misconduct implies actuation of some degree of mens rea by the doer. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform the judicial duties of the judge or wilful abuse of the office dolus malus would be misbehaviour. Misbehaviour would extend to conduct of the Judge in or beyond the execution of judicial office. Even administrative actions or omissions too need accompaniment of mens rea. The holder of the office of the judge of the Supreme Court or the High Court should, therefore, be above the conduct of ordinary mortals in the society. The standards of judicial behaviour both on and off the Bench are normally high. The failing moral or ethical standards in the society are no ruse nor refuse to slacken the higher standards of judicial conduct. The society, therefore, is entitled to expect higher degree of propriety and probity in the judicial conduct from higher judiciary. There cannot be any fixed or set principles, but a....