TaxTMI 
TaxTMI 
1991 (10) TMI 323
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....wami of this 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 Comm....
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...."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 pres....
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....ndia, 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 the Presi....
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....se 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 position. Contention C: Article 124(5)....
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....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(1) require, in the matter of appointments of Judges, consultation with the Chief Justices. These pro....
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....smuch 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 said question in the affirmative and has proposed a new procedure for removal of judges. The Sub-Committee has recomm....
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....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 Mr. Justice Berger constituted an "indiscretion", but that they were not a basis for a recommendation that he be removed f....
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....tralian 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. Removal by this means is certainly extremely rare. That may be, however, because in the countries in which this procedure prevails, cond....
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...., 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 seen this increase because interpretations of the Constitution have become party dogma. The Court's constitutional decisions are seen by many of the u....
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....lature 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 where necessary; and to submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of....
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....l 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 Standards of Judicial Independence. Paras 27 to 32 relating to 'Judicial Removal and Discipline' are as under: 27. The proceedings for discipline and removal of judges ....
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....f 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, rendering him unfit to continue in office. 2.39 In the event that a court is abolished judges serving in this Court shall not be affected, except for their transfer to another court of the same status. ....
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....t 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 ceremony, is political in spirit. It is directed against a political offence. It culminates in a political judgment. It imposes a political forfeiture. In every sense, say that of administration, it is a political remedy, fo....
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.... 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 to appointment and removal of judges of Supreme Court. It was provided that "a judge of the Supreme Court of India shall not be removed from his office except by the President on an address from both the Houses of Parliament of the....
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....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 to the impeachment, the charges to be framed against a particular judge. To make a detailed machinery for all these could be a novel procedure to be adopted in any Constitution. (Constituent Assembly Debates, vols. I to VI at pp. 899....
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...., 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 Royal Family, a Governor-General of an independent territory, the Lord Chancellor, the Speaker, the Chairman of Ways and Means, Members of either House of Parliament and judges of the superior courts of the United Kingdom, including persons holding the positi....
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....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 consequence are well settled. The argument is that if there is no provision to the contrary in our Constitution the English convention with regard to the consequence of dissolution should be held to follow even in India. There is no doubt that, in English, in addition to bringin....
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....nding 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 Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same. (2) If the motion referred to in Sub-section (1) is admitted, the Speaker or, as the case may....
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.... 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 is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive master. No aspect of the matter, it is contended, is justifiable before a Court. Houses of Parliament, it is claimed, are privileged to be the exclusive arbiters of the legality of their proceedi....
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....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 an error by a judge whose decision is not subject to appeal. There is nothing startling in the recognition of the fact that such an error is possible. If, for instance, a jury in a criminal case gives a perverse verdict, the law has provided no remedy. The maxim that there is no wrong without a remedy does not mean, as it i....
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.... 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 procedure therefor, no motion for removal of a Judge would be permissible under Article 124(4) and the House of Parliament would not be brought into the picture till some authority outside the two Houses of Parliament has recorded a finding of misbehaviour or incapacity. The emphasis is on the expression 'proved'. Third: That Article 124(5) is only....
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....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 the President praying for the removal of the Judge as hereinafter provided. ... ... ... 124. Establishment and Constitution of Supreme Court. (1)... ... ... (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in ....
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....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, the parliamentary procedure commences only after proof of misbehaviour or incapacity in accordance with the law enacted under Clause (5), the machinery for investigation and finding of proof of the misbehaviour or incapacity being statutory, governed entirely by provisions of the law enacted under Clause (5). This also harmonises Article 121. The position would be that an allegation....
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....e 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 address to the President in the manner prescribed. The matter not being before the Parliament prior to this stage is also indicated by Article 121 which lifts the bar on discussion in Parliament only upon a motion for presenting an address to the President as provided later in Article 124(4). The bar in Article 121 applies to discussion in Parliament but investigation and proof of misconduct ....
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....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 Speaker giving rise to the Constitution of the Inquiry Committee under the Act, also does not arise and there can be no occasion for the House to say so at any time. If the House is, therefore, not required to consider this question since the parliamentary process can commence only after a finding of guilt being proved, the further question of a futile writ also does not arise. The argument that ....
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....n 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 118 relating to procedure and conduct of business in Parliament. Accordingly, the scheme is that the entire process of removal is in two parts-the first part under Clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliament's role being only legislative as in all the laws enacted by it; and the second part only after proof under Clause ....
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....icial 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 in the matter of its procedure after the misbehaviour or incapacity had been investigated and found true. 'Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed.' (See : State of Uttar Pradesh v. Joginder Singh, IILLJ444SC . Indeed, when a provision is intended to effectuate a right-here it....
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....y 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 the House' notwithstanding use of that expression in Section 6. Otherwise, Section 6 would not say that no further step is to be taken in case of a finding of 'not guilty'. It only means that when the allegation is not proved, the Speaker need not commence the process under Clause (4) which is started only in case it is proved. The Speaker is, therefore, a statutory authority under the Act chosen because the further process i....
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....4(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 philosophy of both the judicial and political elements of the process of removal. The ultimate authority remains with the Parliament in the sense that even if the Committee for investigation records a finding that the Judge is guilty of the charges it is yet open to the Parliament to decide not to present an address to the President for removal. But if the Committee records a finding that the Judge is not guilty, then the political element in ....
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....mittee 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 admitting a motion and constituting a Committee to investigate the alleged grounds of misbehaviour or incapacity does not act as part of the House. The House does not come into the picture at this stage. The provisions of the Judges (Inquiry) Act, 1968 are not unconstitutional as abridging the powers and privileges of the House. The Judges (Inquiry) Act, 1968 is constitutional and is intra vires. Contention D is disposed of accordingly. RE: CONTENTION (E)....
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....a 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 over inferior courts, appoint a special commissioner to preside over a preliminary investigation. A court rule providing that a Judge charged with misconduct should be given a reasonable opportunity in the course of a preliminary investigation to present such matters as he may choose, affords him more protection than is required by constitutional provisions. [P. 615] 58. The position is that at the stage of the provisions when the Speaker admits the motion under Section 3 of the J....
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....cial 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 not of themselves have the force and effect of law. [pp. 593-594] On the nature of prescribed conduct it is stated : A Judge's official conduct should be free from impropriety and the appearance of impropriety and generally, he should refrain from participation in activities which may tend to lessen public respect for his judicial office. It is a basic requirement, under general guidelines and canons of judicial conduct, that a Judge's official conduct be free from impropriety and the appearanc....
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.... 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. Incidentally, this also throws light on the question of interim relief in such a matter having the result of restraining the Judge from functioning judicially on initiation of the process under the Judge (Inquiry) Act, 1968. The Constitutional Scheme appears to be that unless the alleged misbehaviour or incapacity is 'proved' in accordance with the provisions of the law enacted under Article 124(5) and a motion for presenting an address for removal of the Judge on the ground of proved misbehaviour or incapacity is made, because....
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....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 it is desirable for the learned Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the learned Judge accordingly. It is further reasonable to assume that the concerned learned Judge would ordinarily abide by the advice of the Chief Justice of India. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive to the Chief Justice of India for this purpose. Accordingly Contention F is rejected. RE : CON....
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....ot 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 discussed in the House etc. We have held these were not necessary. 64. But a point was made that the Speaker not having entered appearance and denied these allegations on oath must be deemed to have admitted them. It appears to us that even on the allegations made in the petition and plea of mala fides which require to be established on strong grounds, no such case is made out. A case of mala fides cannot be made out merely on the ground of political affiliation of the Speaker either. That may not be a sufficient ground in the present....
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.... 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 interest. Recourse to constitutional methods must be adhered to, if the system were to survive. Learned Judge in his letter to the Registrar-General which he desired to be placed the Court had, indeed, expressed deep anguish at the way the petitioners had been permitted themselves to sit in judgment over him and deal with him the way they did. RE : CONTENTION (I) 67. This argument suggests that the court should, having regard to the nature of the area the decision of the court and its writ is to operate in, decline to exercise its jurisdict....
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....line 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 of Parliament would act in violation of the law. The interpretation of the law is within the exclusive power of the courts. 70. So far as the second aspect is concerned, what is now sought by the petitioners who seek the enforcement and implementation of the Speaker's decision is not a direction to the committee to carry out the investigation. Such a prayer may raise some issues peculiar to that situation. But here, the Union Government has sought to interpret the legal position for purposes of guiding its own response to the situation and to regulate its ....
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.... 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 W.P. (C) No. 560 of 1991. The Lok Sabha was dissolved the very next day, i.e. 13.3.1991. 75. Mr. Attorney General appearing on behalf of the Union of India has contended that this Court should affirm the views expressed by the Union of India in its affidavit that on dissolution of the last Lok Sabha, the Motion against the third respondent lapsed and the matter cannot proceed further. 76. According to the case of the petitioners, once the Committee was constituted, the entire inquiry must be completed in accordance with the provisions of the Act, and the stand of the Union Gove....
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....(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. Sibal, in reply to a query from the Bench, clarified the position that if his plea of non-justiciability is accepted, all the petitions may have to be dismissed. 78. It is appropriate that the point relating to the jurisdiction of this Court, and for that matter of any court in India, is considered first. If the stand of the respondents is correct on this issue, it may not be necessary to deal with the other questions raised by the parties. In support of his argument, Mr. Sibal has relied upon the provisions of Article 122(2) of the Constitution read with Article 93, and has urged that the....
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.... 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 exercising his discretion after taking into account the impropriety of such a debate. 80. Although the powers of State has been distributed by the Constitution amongst the three limbs, that is the Legislature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas. A few illustrations will show that the courts' jurisdiction to examine matters involving adjudication of disputes is subject to several exceptions. Let us consider a case in which an individual citizen approaches the Court alleging ser....
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.... 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 any of the three wings at the highest level - i.e. the President; the Members of the Parliament and the State Legislatures; and the Judges of the Supreme Court and the High Courts - arises, it is left to an organ other than where the problem has arisen, to be decided. 82. The President has to be elected by the members of an electoral college as prescribed by Article 54, in the manner indicated in Article 55. Since he has to exercise his functions in accordance with the advice tendered by the Council of Ministers, the matter relating to his impeachment has been entrusted by Article 61 to the Parlia....
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.... 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 themselves. 84. Mr. Sibal has further relied on Hamilton stating that "the awful discretion which a court of impeachment must necessarily have to doom to honour or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust, to a small number of persons." The counsel added that presumably that is the reason that the question of removal of a Judge of the superior court has been exclusively entrusted to the Parliament and further in that spirit the Act requires a large number of Members of the parliament to even give the Notice of Motion. Quo....
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....l, 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 aspect was stated as far back as in 1584 in Heydon's case: 76 E.R. 637, and has been followed by our Court in a large number of decisions. While interpreting Article 286 of our Constitution, reliance was placed by this Court in the Bengal Immunity Company v. The State of Bihar, [1955]2SCR603 , on Lord Coke's dictum in Heydon's case and the observations of the Earl of Halsbury in Eastman Photographic Material Company v. Comptroller General of Patents [1898] A.C. 571 reaffirming the rule in the following words: My Lords, it appears to me that to construe the statute in question, it is not only legitimate but hi....
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....he 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 Section 72(ii) of the Commonwealth of Australia Constitution Act (1900) except the last sentence in the following terms: Further provision may be made by the Federal Law for the procedure to be adopted in this behalf. When the matter was finally taken up by the Constituent Assembly the Debates indicate that there was a categorical rejection of the suggestion to entrust the matter to the Supreme Court or a Committee of a number of sitting Judges of the Supreme Court; and while doing so, the law of the other Commonwealth countries were taken into consideration. So far the last sentence of the draft was concerned, Sir Alladi....
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....ny 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 provisions otherwise would lead to the extraordinary result that the Parliament was in a helpless condition for about 18 years till 1968, if a Judge was rendered unfit to continue. I agree with the learned Counsel. 89. The other learned advocates appearing for the petitioners did not advert to this aspect pointedly. The stand of Mr. Garg is that whether or not the third respondent is removed, or whether the inquiry proceeds before the Committee or not, he must cease to function as a Judge, as his image being under a cloud, must be cleared so that the people may have trust in the judiciary. Mr. Ram Jethmalani, the other learned Counsel....
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.... 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 emphasise the limited scope of the law. Clause (4) does not state that the misbehaviour or incapacity of the Judge will have to be proved only in accordance with a law to be passed by the Parliament under Clause (5). Clause (4) would continue to serve the purpose as it does now, without any amendment if Clause (5) were to be removed from the Constitution today. There is no indication of any limitation on the power of the Parliament to decide the manner in which it will obtain a finding on misbehaviour or incapacity for further action to be taken by it. Clause (5) merely enables the Parliament to enact a law for this purpose, if it so chooses....
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....per 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 further whether the inquiry before the Committee is within the control of the House of the Parliament so as to exclude an outside interference by any other authority, including the courts. 92. It is true that the provisions of an Act control or determine the constitutional provisions, but where the meaning of an Article is not clear it is permissible to take the aid of other relevant materials. Besides, in the present context, where it is necessary to assess the effect of the construction of the other provisions of the Constitution and of the Act on Article 121, the Act provides useful assistance; and its importance has been greatly enhanced....
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...., 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" is to be addressed or handed over and it is not quite clear how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account. Rule 185 states that notice of "motion" shall be given in writing addressed to the Secretary General and its admissibility should satisfy the conditions detailed in Rule 186. Rule 187 directs the Speaker to examine and decide the admissibility of a "motion" or a part thereof. Rule 189 says that if the Speaker admits notice of a "motion" and no date is fixed for discussion of such "motion", it shall be notified in the Bulletin with the heading "No-Day-Yet-Named Motions". It is at this stage ....
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....tside 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 enumerating some of the subject matters without prejudice to the generality of the power, and permits the Joint Committee of both Houses of Parliament to frame the rules, and accordingly, the Judges (Inquiry) Rules, 1969 were made. Rule 2(e) of these Rules describes "motion" as motion admitted under Section 3(1) of the Act. Supplementing the provisions of Section 6(2), Rule 16(2) provides that "a copy of the motion admitted under Sub-section (1) of Section 3 shall be reproduced as an Annexure to such an address". Sub-rule (4) states that "the address prepared under Sub-rule (1) and the motion shall be put to vote together in each House of Parliament". It ....
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....ot 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 misconceived. The mandate of the Constitution against discussion on the conduct of a Judge in the House is for everybody to respect, and it is the bounden duty of the Speaker to enforce it. He has to ensure that Article 121 is obeyed in terms and spirit, and as a matter of fact there is no complaint of any misuse during the last more than 41 years. The question, however, is whether it will not be feasible for the Speaker to maintain the discipline, if the Motion on admission becomes pending in the House. Before 1968 Act was passed, the motion, like any other motion, was governed by the Lok Sabha Rules, and Rule 189 enabled the Speaker to notify it as a N....
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....text 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 Speaker and the Chairman. About Mr. Setalvad's evidence I would like to clarify the position that I am not treating his opinion as an authority, and I have taken into account the same as one step in the history of the present legislation starting from the original Bill of 1964. The report of the Joint-Committee (presented on 17th May, 1966) sets out the observations of the Committee with regard to the principal changes proposed in the Bill. Paragraph 17 of the Report dealing with Clause (2) states that the expression "Special Tribunal" has been substituted by "Committee" and "Speaker" and "Chairman" have been brought in "with a view to ensuring that the Co....
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.... 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 the Speaker to consult the House on a legal issue which can be answered without reference to the conduct of Judge in question, as for example, the issue (involved in the present case) whether on account of dissolution of the old House the Motion has lapsed and the Committee of Inquiry is defunct. What is prohibited is not every matter relating to the removal of a Judge; the bar is confined to a discussion with respect to the conduct of a Judge in the discharge of his duties. 99. Mr. Shanti Bhushan strenuously contended that such portion of the 1968 Act which direct or declare the initial motion admitted by the Speaker to remain pending in the House, should be in....
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....tely 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 Judge commencing with the notice of motion has to be within the same session. It refers only to the voting part. A close reading of the entire Act indicates that the language therein, which completely demolishes the petitioners' case, was consciously chosen to make the House seised of the matter, and consequently it became necessary to include the provisions directing the motion to remain pending for the purpose of preventing a premature discussion. The Act has, thus, very successfully respected both Articles 124 and 123 in their true spirit, by neatly harmonising them. 100. Let us consider another argument of the petitioners that by reason of the expression "on t....
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....ing 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 do so. It is true that the Parliament can exercise its power without formally framing a law. The House in question could in the absence of a law, decide on the procedure to be followed in a given case but it was perfectly open to it to pass an Act laying down a general code to be followed until the Act is repealed or amended. It is a well established practice for a large body to entrust investigations to a smaller body for obvious practical reasons, and such an exercise cannot be characterised as indulging in abnegation of authority. It could have asked a Parliamentary Committee to enquire into the allegations or employed any other machinery for the purpose. The ratio i....
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....er. 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 happens if a member of the Committee becomes unavailable by any reason whatsoever or another member renders himself unfit to be on the Committee, say by reason of his apparent and gross bias, against or in favour of the Judge concerned, coming to light after the formation of the Committee ? The answer is that the House which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted. If on the other hand it is held that the Committee is an independent statutory body not subject to the control of the House directly or through th....
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....r 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 resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found ? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his infallible criterion for the fallible criterion of his more conceited neighbour? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but tha....
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....sions 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 second Committee and in view of certain other facts an ad hoc legislation was passed under the name of Parliamentary Commission of Inquiry Act, 1986. Under this Act further steps were being taken when Mr. Justice Murphy moved the High Court of Australia for an order of injunction challenging the validity of the Act and alleging that one of the members of the Commission constituted under the Act (a retired Judge) was disqualified on account of bias. The application was dismissed on merits without adverting to the question of justiciability. This decision, to my mind, is of no help to the petitioners before us, mainly on account of the difference in the Constitutional scheme of th....