TaxTMI 
TaxTMI 
1992 (8) TMI 277
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....abha. It is unnecessary to state further facts herein and it would suffice to say that both these petitions are a sequel to the decision in Sub-Committee on Judicial Accountability v. Union of India, (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 o....
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....to the Inquiry Committee to supply a copy of its report 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....
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....bility of the petition, he sought time 'to consider further whether the petitioner should move an application for impleading Mr. Justice V. Ramaswami as a party'. The matters were 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 fu....
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....in a case filed in the Court in which he himself is a Judge. We are unable 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 feas....
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....mpleading him as a party. 15. We have already indicated the impropriety of considering and deciding the question of grant of reliefs claimed in the petitions for the benefit of Mr. Justice V. 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 wa....
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....ved in reopening those questions which are concluded by a decision of the Constitution Bench in Sub-Committee on Judicial Accountability particularly when the plea is not even made by the concerned Judge 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 decisi....
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....ongation to enable every individual, who so desired, to address us orally. We are also of the opinion 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 al....
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....o not wish to claim any relief and accept such act or omission willingly and without protest, the member of 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 ....
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.... at some length and also referred to the decision in S. P. Gupta since in the present context it has become necessary to reiterate 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 re....
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....2 SCR 741: (1991 AIR SCW 1573), for short 'SCJA' in which this Court declared that the motion admitted by the Speaker of the 9th Lok Sabha is valid; his action under the Act is outside the Parliament, 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....
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....ainst the Judge and in not permitting the petitioner to assist the Committee to establish the innocence of the Judge, the Committee has completely mutilated 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, t....
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.... and if it finds in the negative, the need to conduct the enquiry does not arise and it should report accordingly to the Speaker who would drop further action. 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 tu....
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.... 3(3) of the Act are distinct and different. The former refers to inquisitorial and the later partakes of adversorial. S. 3(3) of the Act occupies the field of adversary 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 r....
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....nd enquiry contemplated under the Act and the Rules is overlapping and synonymous. Even if the learned Judge opts to remain ex parte, the committee is obligated to conduct 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 h....
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....s sui generis. The discretion left to the committee under S. 4(1) of the Act to regulate its own procedure to investigate into the definite charges against the learned Judge bears 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 ....
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....court has jurisdiction and power to determine its own jurisdiction and error in that behalf does not constitute an error of jurisdiction. The people would shape their course of conduct or 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 ....
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....good? Has the earlier decision been followed on subsequent occasions either by this court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship 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 w....
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....f higher judiciary and the investigation thereon by the committee so that it would be the law of the land under Art. 141 of the Constitution. Though it would be ideal to implead the learned Judge as respondent, 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 "a....
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....ministration of justice. He would equally keep in his gaze and in the mind the seriousness of the imputations, nature and quality of the record before him and "its indelible chilling effect on the public administration 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 mot....
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....ional pragmatism into play, conscious as we are of each other's limitations. The process to remove a Judge under Art. 124 (4) consists of several steps, i.e. the motion duly moved i.e. consideration of the record 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 Commi....
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.... distinguished Jurist. Ex facie, it enjoins no obligation on the Speaker to have Consultation with the Chief Justice of India nor to seek nomination of a sitting Judge of the Supreme Court in terms of S. 3(2)(a) or one referred 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 no....
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....hereof by rule 7, giving reasonable opportunity to present his fresh written statement of defence under Ss. 3(8) and 3(4) and Rule 7; right to cross-examine witnesses; adduction of evidence in defence; right of hearing under S.4(1) 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 tra....
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....d by the, teeth of the builtin procedure prescribed in the Act and the Rules. Lest it would be, as stated earlier, an open invitation to the disgruntled to place fabricated evidence and it would be fraught with grave dangers, endless investigation 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 th....
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....It is obvious that the grounds are based on sufficient material or evidence. Section 3(3) envisages that "the committee shall frame definite charges against the Judge "on the basis of which the investigation is proposed to be held" (Emphasis supplied). 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 Rul....
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.... forms the base for report. The evidence and the documents together with report of proved misbehaviour/ incapacity should be laid before each House of-the Parliament along with the report and evidence and minority contra view sent under S. 4(2). 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, inquisito....
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....tion often contradicts the premise behind those of private law. In public law wider public interest is involved over and beyond the contending parties. It concerns the future and private law litigation is retrospective in operation. Prof. Wade in his Administrative 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, 6^th Edition, at p. 825 thus : "To follow up step by step by patient inquiry or observation. To trace or track; to searc....
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....d in the circumstances of a particular case was adopted. The consideration of the evidence is like a criminal case as the finding would be 'guilty' or 'non-guilty' of misbehaviour under Section 6 of the Act. The test of proof is "proof beyond reasonable doubt". 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 au....
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....aloft. Thereby it would balance the competing interests of independence of the judiciary and accountability. The makers of the Act after a great deal of deliberations made an admixture or amalgam of political and judicial process to remove an erring Judge atune to the constitutional 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 ....
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....er undiminished salary, privileges and perks prevalent on the date of assumpition of office as a Judge and during the tenure. Article 124(4) assures irremovability from office, except for "proved misbehavior or incapacity" in accordance with the procedure therein, the Act and the Rules. Articles 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 vi....
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....usher in an egalitarian social order, removing the existing imbalances, social and economic inequalities, assuring liberty, equality, fraternity and to further justice social, economic and political with dignity of the persons and fraternity to integrate Bharat. Independence of judiciary thus 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 aga....
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....trued. 'Misconduct' literally means wrong conduct or improper conduct", 'Misconduct in office' was defined as "unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected ". 70. Every act or conduct or even error of judgment or negligent acts by higher judiciary per se does not amount to misbehaviour. Wilful abuse of judicial office, wilful misconduct in the office, corruption, lack of 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 fa....