top of page
Search
  • Writer's pictureLLC

removal of judges

Supreme Court of India

Sarojini Ramaswami vs Union Of India & Ors on 27 August, 1992

Author: B Verma

Bench: J.S. Verma, N.M. Kasliwal, K. Ramaswamy, K.J. Reddy, S.C. Agrawal

23. The constitutional scheme for the removal of a Judge of the Supreme Court or a High Court in accordance with Article 124(4) of the Constitution and the Judges (Inquiry) Act, 1968 made under Article 124(5) of the Constitution read with the Judges (Inquiry) Rules, 1969 framed under the Act was considered and indicated in the earlier decision in Sub-Committee on Judicial Accountability (AIR 1992 SC 320 ). It is, however, useful to recapitulate the scheme in the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969 made thereunder in the context of the question which now arises for decision on the basis of the declaration of law made in Sub- Committee on Judicial Accountability. We proceed to do so before we advert to the specific declaration of law made in the earlier decision.


24. Article 124(5) mandates enactment of a parliamentary law to regulate the investigation and proof of misbehaviour or incapacity of a Judge under clause (4) and pursuant to it the Judges (Inquiry) Act, 1968 has been enacted by the Parliament. As held in sub-committee on Judicial Accountability, on a construction of Article 124, 'the policy appears to be that the entire stage up to proof of misbehaviour or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it and 'the Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbehaviour or incapacity has been proved'. The Judges (Inquiry) Act, 1968 enacted under Article 124(5) of the Constitution being made for this purpose, the provisions thereof have to be construed in that light.


25. The Judges (Inquiry) Act, 1968 provides that the procedure for removal of a Judge of the Supreme Court or a High Court can be initiated only if a notice of a motion for presenting an address to the President praying for his removal, signed by not less than 100 members of the House of the People or 50 members of the Council of States is given to the Speaker / Chairman in accordance with sub-section (1) of Section 3 of the Act. Any other method for initiating the prescribed procedure for removal of a Judge is obviously excluded. The Speaker / Chairman is empowered to either admit or refuse to admit the motion 'after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him'. The indication is that the Speaker / Chairman is empowered to consult such persons as he thinks fit and is required to take into consideration the materials available to him for deciding whether to admit the motion or refuse to admit the same. It is reasonable to assume that one such person to be consulted would be the Chief Justice of India, who apart from being the Head of the Indian Judiciary would also be the authority involved in the choice and availability of a sitting Judge of the Supreme Court and a sitting Chief Justice of a High Court as members of the Committee constituted under Section 3(2) of the Act, if the motion is admitted by the Speaker / Chairman. Sub-section (2) of Section 3 then provides that the Speaker/ Chairman, in case he admits the motion, 'shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for', a Committee of three members of whom one shall be from among the Chief Justice and other Judges of the Supreme Court, one from among the Chief Justices of the High Courts and a distinguished jurist. This means that an inquiry into the grounds on which the removal of a Judge is prayed for in the notice of motion given by the specified minimum number of members of Parliament or in other words the inquiry into the allegations of misbehaviour or incapacity of the Judge requiring his removal would be made by the Committee so constituted comprising of two sitting Judges and a distinguished jurist. Sub-section (1) of Section 4 empowers the Committee to regulate its own procedure subject to any rules made in this behalf and the giving of a reasonable opportunity to the Judge concerned of defending himself in that inquiry. Sub-section (2) of Section 4 requires the Committee, 'at the conclusion of the investigation', to submit its report to the Speaker / Chairman 'stating therein its findings on each of the charges separately with such observations on the whole case as it thinks fit'. The Speaker / Chairman, as required by sub-section (3) 'shall cause the report submitted under sub-section (2) to be laid, as soon as may be, respectively before the House of the People and the Council of States'. Thus sub-sections (2) and (3) of Section 4 require the Committee to submit its report to the Speaker / Chairman 'at the conclusion of the investigation' and the Speaker / Chairman 'shall cause the report to be laid, as soon as may be, before the House of the People and the Council of States'. In the present context, it is the requirement at this stage, 'at the conclusion of the investigation', when the report of the Committee has been prepared, which raises the question: Whether, as a consequence of the earlier decision in Sub-Committee on Judicial Accountability, (AIR 1992 SC 320 ), the Committee is required to furnish a copy of its report to the concerned Judge before submitting it to the Speaker as enjoined by Section 4(2) of the Act?


26. Section 6 of the Act provides for the stage subsequent to submission of the report by the Committee to the Speaker / Chairman. Sub-section (1) of Section 6 lays down that if the Committee absolves the concerned Judge, In its report and records a finding that the Judge is 'not guilty of any misbehaviour then no further steps shall be taken in either House of Parliament and the motion pending in the House shall not be proceeded with'. It is clear from sub-section (1) of Section 6 that a finding of 'not guilty' recorded by the Committee in its report terminates the process of removal of the concerned Judge initiated in accordance with Section 3(1) of the Act, that part of the process being statutory, and the parliamentary part of the process initiated on the Committee's report being laid before the House by the Speaker / Chairman in accordance with Section 4(3) does not commence. This is clear from the expressions 'then no further steps shall be taken in either Houseand the motion pending in the House shall not be proceeded with' in Section 6(1) of the Act. In Sub-Committee on Judicial Accountability, (1991 (4) SCC 699 "If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4)".


27. Sub-sections (2) and (3) of Section 6 provide for the situation where the report of the Committee contains a finding that the Judge is 'guilty' of any misbehaviour or suffers from any incapacity. Sub-section (2) prescribes that the motion admitted by the Speaker / Chairman under Section 3(1) of the Act shall then be taken up for consideration by the House together with the report of the Committee. It is in this situation and in this manner that the parliamentary part of the process of removal of a Judge commences requiring the House to consider the motion for removal of the Judge. Sub-section (3) lays down that if the motion is adopted by each House of Parliament in accordance with provisions of clause (4) of Article 124, then the misbehaviour or incapacity of the Judge shall be deemed to have been proved and the address praying for the removal of the Judge shall be presented to the President in the prescribed manner. Thus, commencement of the parliamentary part of the process for removal is after the end of the earlier statutory part, only in case the report of the Committee contains a finding that the Judge is 'guilty' of any misbehaviour or suffers from any incapacity and not otherwise. The entire process of removal is composite in nature.


28. A brief reference to the relevant provisions of the Judges (Inquiry) Rules, 1969 framed under the above Act which are material in the present context may now be made. Rule 9 relates to the report of the Inquiry Committee. Sub-rule (1) says that where the members of the Inquiry Committee are not unanimous, the report submitted under Section 4 of the Act shall be in accordance with the findings of the majority of the members. Sub-rule (2) requires the Presiding Officer of the Inquiry Committee to forward within the specified period its report in duplicate, duly authenticated to the Speaker / Chairman by whom the Committee was constituted. Sub-rule (3) requires an authenticated copy of the report of the Inquiry Committee to be laid before each House of Parliament. Sub-rule (4) prescribes that where the finding of 'guilty' is by majority, the contrary finding of the third member shall also be forwarded along with the report submitted under Section 4 of the Act. Sub-rule (5) requires an authenticated copy of the contrary finding of 'not guilty' made by the third member in such a case also to be laid before each House of Parliament. Thus, sub-rules (4) and (5) require that where the finding of 'guilty' is not unanimous but. only by majority, then the contrary opinion of the third member in favour of the concerned Judge shall also be laid before each House of Parliament to be available to the Parliament for consideration along with the report containing the finding of 'guilty' by the majority while considering the motion for removal of the Judge. Sub- rule (6) makes provision for the converse situation where the finding by the majority of the members of the Inquiry Committee is that the Judge is 'not guilty', but the third member makes a finding to the contrary. It provides that in such a situation where the majority of the members of the Inquiry Committee finds that the Judge is 'not guilty', then 'the Inquiry Committee shall not disclose the finding made by such third member to Parliament or to any other authority, body or person'.


(Emphasis supplied)


29. It is clear that if the finding of 'not guilty' is even by majority and not unanimous, the contrary finding of 'guilty' by the third member is not even to be disclosed to 'Parliament or to any other authority, body or person' much less acted upon for any purpose by anyone. The scheme embodied in Section 6 of the Act read with Rule 9 is that where the finding of the Inquiry Committee is of 'not guilty' whether unanimous or by majority of the members of the Inquiry Committee, the entire process of removal of the Judge terminates with that finding giving the quietus to the accusation of misbehaviour by the Judge scotching all rumours and the motion is not even required to be taken up for consideration by the Parliament so that the parliamentary part of the process does not commence in the absence of the condition precedent of a finding of 'guilty' by the Inquiry Committee essential for its commencement. In such a situation when the finding of 'not guilty' is by majority of the members only, the contrary finding of guilty by the third member is not even to be disclosed to any authority or person including the Parliament since all debate on the conduct of the concerned Judge based on those allegations must end. The scheme is that the matter must end there finally with no one, not even the Parliament, having the right or authority to consider, debate or examine the finding of 'not guilty'.


30. It is, therefore, obvious that the Inquiry Committee constituted under Section 3(2) of the Act becomes the sole and final arbiter on the question of removal of the concerned Judge where the finding reached by the Committee, whether unanimous or by majority, is that the Judge is 'not guilty'. Rule 9(6) read with Section 6(1) indicates the extent and wide sweep of a finding of 'not guilty by the committee by providing that the contrary finding of 'guilty' by the dissenting third member in case of a finding of 'not guilty' by majority shall not even be disclosed to anyone including the Parliament. The idea is that if the Committee even by majority records a finding of 'not guilty', notwithstanding the contrary opinion of the third member, the matter must terminate there with no one, not even the Parliament, being entitled to even scrutinise much less question the correctness or legality of the finding of 'not guilty'. The intention manifest from these provisions is that in case the Inquiry Committee makes a finding that the Judge is 'not guilty, of any misbehaviour, any further scrutiny of that finding is excluded in the constitutional scheme, and no useful purpose being served by disclosure of the contrary finding of guilty reached by the third member even to the Parliament, its disclosure is forbidden with the majority opinion of 'not guilty' giving the quietus to the allegation of misbehaviour made against the concerned Judge. The disclosure of the dissenting opinion of guilty by the third member would needlessly harm the reputation of the concerned Judge, notwithstanding termination of the process of removal with the majority finding him 'not guilty'.


31. These provisions in the Act and the Rules are a strong indication that the constitutional scheme for the removal of a Judge in accordance with clauses (4) and (5) of Article 124 of the Constitution and the parliamentary law enacted under Article 124(5) shuts out all scrutiny even by judicial review where the Inquiry Committee unanimously or even by majority makes a finding that the Judge is 'not guilty' of any misbehaviour. Obviously, the concerned Judge cannot be aggrieved by a finding of 'not guilty' in his favour and in case such finding is not unanimous but by majority, non-disclosure of the dissenting opinion of guilty, as required by Rule 9(6) of the Rules, even to the Parliament, prevents any possible damage to the reputation of the concerned Judge from the dissenting opinion and, therefore, there can be no legitimate grievance to him from the undisclosed dissenting opinion. For this reason, the concerned Judge can have no grievance against exclusion of judicial review in that situation.


32. The constitutional scheme indicates that it is only the Members of Parliament acting jointly in the specified minimum number who can bring about initiation of the procedure for removal of a Judge, all other modes and persons being excluded. The provision in Rule 9(6) for non-disclosure of the dissenting opinion of 'guilty' even to the Parliament further indicates that no one including the Members of Parliament who gave the notice of motion under Section 3(1) of the Act to initiate the process of removal have any right in that situation to even scrutinise much less assail the finding of 'not guilty' recorded by the Inquiry Committee even by majority. Section 6(1) of the Act read with Rule 9(6) of the Rules is a clear pointer in this direction. Thus, there is total exclusion of judicial review at the instance of any one, including the concerned Judge and Members of Parliament who gave the notice of motion, as well as any debate even in Parliament, in case the finding by the Inquiry Committee, whether unanimous or by majority, is that the Judge is 'not guilty' of any misbehaviour. This being the situation in the event of the Committee's report containing a finding of 'not guilty', there can be no requirement at least in that situation for the Committee to furnish a copy of its report to the concerned Judge before submitting the same to the Speaker / Chairman under Section 4 (2) of the Act. There being no grievance to the concerned Judge, the question of his right to seek judicial review does not arise. The question, however, is of this obligation in the converse situation where the Committee makes the finding of 'guilty' against the concerned Judge.


33. The absence of any obligation in the Committee to furnish a copy of its report to the concerned Judge before submitting it to the Speaker / Chairman under Section 4(2) of the Act is in consonance with the law declared in Sub-Committee on Judicial Accountability, that the process for removal of the Judge is statutory till the laying of the report by the Speaker before the Parliament on its submission to him by the Committee in accordance with sub-sections (2) and (3) of Section 4 of the Act. There being no scope for judicial review in the case of finding of 'not guilty' in the report for the reasons already given, the finding of 'not guilty' being immune from any scrutiny in the constitutional scheme adopted, there need not be any obligation to furnish a copy of the report to the concerned Judge. The Judge not being aggrieved and all others being excluded when the finding is 'not guilty', any interdiction by the Court is automatically ruled out, notwithstanding the process till then being statutory. The incidents of statutory process are to be considered in this perspective.


34. In this background, the real question for decision now is: Whether the right of the concerned Judge to assail the finding of 'guilty' against him reached by the Inquiry Committee, a statutory authority, can be exercised only if the report is furnished to the concerned Judge before the commencement of the parliamentary process which obliges the Inquiry Committee to furnish a copy of the report to him at least in the situation where the finding reached is that the Judge is 'guilty' of any misbehaviour? Before proceeding to consider this question, it may be added that if there be several charges framed against the Judge and in respect of some of them the finding is that the Judge is 'guilty' while the finding on the other charges is that the Judge is 'not guilty', then the consequences which would ensue in respect of the finding on each charge would depend on its nature. In other words, in respect of a charge of which the Judge is found 'not guilty', the consequences would be those indicated above in accordance with Section 6(1) of the Act and Rule 9(6) of the Rules and the process of removal relating to those charges would terminate in the manner indicated without being subject to any further scrutiny or judicial review as in the case of a finding of 'not guilty' in respect of all the charges levelled against a Judge.


35. At this stage, certain extracts from the earlier decision in Sub- Committee on Judicial Accountability v. Union of India, (1991 (4) SCC 699 may be quoted for convenience. The point raised in this petition was debated mainly with reference to these portions of the earlier decision. These extracts are as under:-


"But the constitutional scheme in India seeks to achieve a judicious blend of the political and judicial processes for the removal of Judges. Though it appears at the first sight that the proceedings of the Constituent Assembly relating to the adoption of clauses (4) and (5) of Article 124 seem to point to the contrary and evince an intention to exclude determination by a judicial process of the correctness of the allegations of misbehaviour or incapacity on a more careful examination this is not the correct conclusion"


"The proceedings in the Constituent Assembly, therefore, do not give an indication that in adopting clauses (4) and (5) of Article 124 of the Constitution, the intention of the Constituent Assembly was to exclude investigation and proof of misbehaviour or incapacity of the judge sought to be removed, by a judicial body. Having regard to the views expressed by Shri Alladi Krishnaswami Ayyar, who was a member of the Drafting Committee, while opposing the amendments proposed by Shri M. Ananthasayanam Ayyangar, it is possible to infer that the intention of the Constituent Assembly was that the provision with regard to the machinery for such investigation and proof was a matter which need not be contained in the Constitution and it is a matter for which provision could be made by Parliament by law."


The three available constitutional options were mentioned in the decision of which the second which was accepted by the majority opinion is as under:-


"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 Houses 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'."


Acceptance of the second view was stated thus -


"The second view has its own commendable features. It enables the various provisions to be read harmoniously and, together, consistently with the cherished values of judicial independence. It also accords due recognition to the word "proved" in Article 124(4). This view would also ensure uniformity of procedure in both Houses of Parliament and serve to eliminate arbitrariness in the proceedings for removal of a Judge. It would avoid duplication of the investigation and inquiry in the two Houses. Let us elaborate on this".


"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 misbehaviour 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 of misbehaviour or incapacity of a Judge has to be made, investigated and found proved in accordance with the law enacted by the Parliament under Article 124(5) without the Parliament being involved up to that stage; on the misbehaviour or incapacity of a Judge being found proved in the manner provided by that law, a motion for presenting an address to the President for removal of the Judge on that ground would be moved in each House under Article 124(4); on the motion being so moved after the proof of misbehaviour or incapacity and it being for presenting an address to the President praying for removal of the Judge, the bar on discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct of the Judge; and the further consequence would ensue depending on the outcome of the motion in a House of Parliament. If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4)".


"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 This indicates that the machinery for investigation and proof must necessarily be outside Parliament and not within it. In other words, proof which involves a discussion of the conduct of the Judge must be by a body which is outside the limitation of Article


121. The word 'proved' also denotes proof in the manner understood in our legal system i.e. as a result of a judicial process. The policy appears to be that the entire stage up to proof of misbehaviour or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124 (5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it. If this be so, it is a clear pointer that the Parliament neither has any role to play till misconduct or incapacity is found proved nor has it any control over the machinery provided in the law enacted under Article 124 (5). The Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbehaviour or incapacity has been proved. The Judges (Inquiry) Act, 1968 enacted under Article 124(5) itself indicates that the Parliament so understood the integrated scheme of Articles 121, 124(4) and 124(5). The general scheme of the Act conforms to this view (para 39 at pp. 349-50 of AIR) "If this be the correct position, then the validity of law enacted by the Parliament under clause (5) of Article 124 and the stage up to conclusion of the inquiry in accordance with that law being governed entirely by state 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" (Emphasis supplied) " This indicates that this area is not left uncovered which too is a pointer that the stage at which the bar in Article 121 is lifted is the starting point of the parliamentary process i.e. when the misbehaviour or incapacity is proved; the stage from the initiation of the process by making the allegation, its mode, investigation and proof are covered by the law enacted under clause (5); in case the allegation is not proved, the condition precedent to invoke the Parliament's jurisdiction under clause (4), does not exist, which is the reason for S. 6 of 1968 Act saying so; and in case it is proved, the process under clause (4) commences, culminating in the result provided in it."


"Accordingly, the scheme is that the entire process of removal is in two parts - the first 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 (4) is in Parliament, that process commencing only on proof in accordance with the law enacted under clause (5). Thus the first part is entirely statutory while the second part alone is the parliamentary process.


The Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process. It is this synthesis made in our Constitutional Scheme for removal of a Judge."


"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 the process of removal has no further option. The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial independence."


"Our conclusions, therefore, on Contentions B, C and D are as under:


The constitutional process for removal of a judge up to the point of admission of the motion, constitution of the committee and the recording of findings by the committee are not, strictly, proceedings in the Houses of Parliament. The Speaker is a statutory authority under the Act. Up to 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 Art. 121 against discussing the conduct of a Judge in the Parliament. Art. 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."


36. The proceeding being statutory means that it is governed in that part by the law enacted under Art. 124(5) and it is statutory in the sense that it is outside the Parliament while thereafter in case of a finding of 'guilty' by the Committee, the proceedings are in the Parliament.


37. The constitutional scheme indicated by clauses (4) and (5) of Art. 124 and reflected in the law enacted by the Parliament under Art. 124(5) is, as indicated in sub-committee on Judicial Accountability, 'a judicious blend of the political and judicial processes for the removal of Judges' and, therefore, we must first look at these provisions to provide the answer to every query raised in this context. The different schemes for removal of Judges in the other countries do not provide the answer to the problem before us and are at best only of marginal precedent value. The practice and precedents in other countries, such as Australia, may provide guidance only in respect of the political part of the procedure in our constitutional scheme which commences after a finding of 'guilty' is made by the Inquiry Committee and the report is laid before the Parliament under S. 4(3) of the Act. We must, therefore, find the indication for the problem before us primarily from the provisions of the Constitution and the law enacted under Art. 124(5). In view of 'a judicious blend of the political and judicial processes' in the constitutional scheme in India, no one need look askance at the exclusion of judicial review at the instance of everyone in case the Inquiry Committee makes a finding that the Judge is 'not guilty'. The clear pointer is that the accusation made in the manner prescribed by the specified minimum number of members of Parliament having been investigated by an Inquiry Committee comprising of high judicial dignitaries and the conclusion reached by them being that the Judge is 'not guilty' of any misbehaviour, the matter must conclude there scotching all rumours without anyone being permitted to even reagitate much less examine the correctness of that finding of 'not guilty'.


38. When the finding in the Committee's report is that the Judge is 'guilty' of any misbehaviour, then S. 6(2) of the Act mandates that the motion for removal of the Judge shall be taken up for consideration by the House together with the report of the Committee submitted in accordance with S. 4(2) and laid before it under S. 4(3) of the Act. Rule 9(1) of the Rules provides that where the members of the Inquiry Committee are not unanimous, the report submitted by the Committee shall be in accordance with the finding of the majority of the members thereof. We have already indicated the provision in Rule 9(6) and its true import where the majority of the members makes a finding that the Judge is not guilty. Rule 9(4) provides for the other situation where the majority of the members of the Committee make a finding that the Judge is guilty of misbehaviour but the third member makes a contrary finding. Unlike sub-rule (6) which contains a clear prohibition against disclosure of the dissenting opinion of the third member when the majority opinion is that the Judge is not guilty, sub-rule (4) requires that where the majority opinion is that the Judge is guilty, the finding to the contrary made by the third member shall also be forwarded by the Inquiry Committee along with the report submitted under S. 4(2) of the Act in accordance with the findings of the majority that the Judge is guilty, as required by Rule 9(1). This distinction in the two situations is significant. Whereas according to Rule 9(6), the dissenting opinion of, the third member is not even to be disclosed to any one including the Parliament, where the majority of the members of the Inquiry Committee makes a finding that the Judge is not guilty of any misbehaviour, where the majority finds the Judge 'guilty' of misbehaviour, the dissenting opinion of the third member to the contrary, that is, 'not guilty' must be forwarded along with the report submitted under S. 4(2) of the Act. Sub- rule (5) of Rule 9 further lays down that an authenticated copy of the finding made by the third member referred to in sub-rule (4) shall also be laid before each House of Parliament. Obviously, the purpose of requiring the dissenting opinion of not guilty by the third member to be submitted along with the report under S. 4(2) and the further requirement that it should also be laid before each House of Parliament is to enable the Parliament while considering the motion for removal of the Judge on a finding of guilty being recorded by the majority of members of the Inquiry Committee to take into account the dissenting opinion as well before deciding whether to act on the majority opinion of guilty or not. Rule 10(2) requires a copy of the evidence received by the Inquiry Committee to be also laid before each House of Parliament along with the report. These provisions indicate the manner of consideration by the Parliament of the motion for removal of the Judge before taking a decision whether the motion is to be adopted in accordance with Art. 124(4) or not since it is only on the motion being so adopted by the requisite majority in each House of Parliament that the misbehaviour or incapacity of the Judge shall be deemed to have been proved as provided in S. 6(3) of the Act.


39. The Parliament while considering the motion for removal of the Judge for deciding whether to adopt the motion or not takes into consideration the report as well as the dissenting opinion, if any, of the third member of the Inquiry Committee in case the majority opinion is that the Judge is guilty, along with the entire evidence received by the Inquiry Committee on which the finding of guilty of the Inquiry Committee is based. No doubt, the Parliament does not substitute its finding for that of the Inquiry Committee or supersede it in case it decides not to adopt the motion by the requisite majority so that the motion for removal of the Judge fails and the proceedings terminate but in doing so it does take the decision to not adopt the motion because it declines to accept and act on the finding of guilty recorded in the report of the Committee after debating the issue on the basis of the materials before it.


40. These express provisions in the law enacted under Art. 124(4) leave no doubt that a full consideration on merits including correctness of the finding of 'guilty' made by the Inquiry Committee on the basis of the materials before the Parliament is contemplated during the parliamentary part of the process of removal of a Judge. Notwithstanding the finding of 'guilty' made by the Inquiry Committee in its report, the Parliament may, on a full consideration of the matter on the materials before it, choose not to adopt the motion for removal of the Judge which would terminate the process of removal.


41. Consistent with this scheme which is manifest from the provisions of the law enacted under Art. 124(5) is the requirement that the Parliament should also have the benefit of the comments, if any, of the concerned Judge on the finding of 'guilty' against him made in the report of the Inquiry Committee. In addition to the requirement of placing of the materials received by the Inquiry Committee before each House of Parliament in accordance with Rule 10(2), the requirement in sub-rules (4) and (5) of Rule 9 of the dissenting opinion of not guilty by the third member of the Inquiry Committee to be also made available to the Parliament is a clear indication that when the Parliament takes up for consideration the motion for removal of the Judge along with the report containing the finding of 'guilty' made by the Inquiry Committee, the Parliament should have not merely the entire material received by the Inquiry Committee on which its finding of 'guilty' is based but also the contrary opinion of not guilty recorded on the same material by the third member of the Committee. The concerned Judge would invariably be in a position to facilitate the task of the Parliament in this behalf by indicating his point of view against the finding of guilty recorded in the Committee's report, in case he chooses to avail of the opportunity. It is, therefore, implicit in the constitutional scheme for the removal of a Judge provided in Art. 124(4) and the law enacted under Article 124(5) that the Parliament should also have the benefit of the point of view and the comments, if any, of the concerned Judge on the finding of 'guilty' against him recorded by the Inquiry Committee in its report when the Parliament takes up the motion for removal of the Judge for consideration along with the Inquiry Committee's report and the other relevant materials made available to it. To enable performance of this exercise and to effectuate the concerned Judge's right to show cause against the finding of 'guilty' made in the report at this stage to the Parliament, it is the clear obligation of the Speaker / Chairman to supply a copy of the Inquiry Committee's report to the concerned Judge while causing it to be laid before the Parliament under S. 4(3) 'as soon as may be' on its submission under S. 4(2). This view also has the advantage of providing the concerned Judge an opportunity during the parliamentary part of the process of removal to place his point of view and offer the comments, if any, on the finding of 'guilty' against him made by the Inquiry Committee for consideration by the Parliament before voting on the motion for removal of the Judge.


42. The further question then is of the nature of this opportunity to the concerned Judge during the parliamentary part of the process. Reference to the procedure adopted for giving an opportunity to Mr. Justice Vasta of the Supreme Court of Queensland in Australia where the process for removal of the Judge was entirely parliamentary was made by Shri F. S. Nariman. Learned counsel submitted that an opportunity to the learned Judge during the parliamentary process in the case of a finding of 'guilty' by the Committee is not inconsistent with the constitutional scheme adopted in India where the parliamentary process commences only after a finding of 'guilty' is recorded by the Inquiry Committee during the statutory part. The learned Attorney General expressed his full agreement with this submission of Shri Nariman. Shri Kapil Sibal without contesting this submission of Shri Nariman supported on this aspect by the Attorney General, contended that it would be needless harassment to the learned Judge to face also the parliamentary process if the finding of 'guilty', if any, recorded by the Committee in its report can be quashed by resort to judicial review thereof at this stage on the permissible grounds.


43. We find no reason to doubt the correctness of the submission of Shri Nariman about the requirement of an opportunity to the concerned Judge to place his point of view with the comments, if any, against the Committee's finding of 'guilty' for consideration by the Parliament along with the other materials available to it while considering the motion for removal of the Judge to decide to adopt or not to adopt it. We are, therefore, of the opinion that in the constitutional scheme in India envisaged and reflected by the constitutional provisions and the law enacted thereunder for the removal of a Judge it is implicit that such an opportunity be given to the concerned Judge when the Parliament takes up the motion for his removal for consideration along with the Committee's report and other relevant materials. We have already indicated the obligation of the Speaker Chairman to supply a copy of the report to the concerned Judge while laying it before the Parliament under S. 4(3) as a part of this opportunity to be given to the learned Judge. The precise details of the manner in which such an opportunity is to be given to the concerned Judge may be for the Speaker / Chairman and the Parliament to decide, but it does appear to us to be the clear mandate in our constitutional scheme that the procedure adopted for this purpose should be such as would ensure availability to each House of Parliament of the concerned Judge's point of view and comments, if any, on the finding of guilty made in the Committee's report when it takes up for consideration the motion for removal of the Judge, such procedure ensuring fairness to the concerned Judge and being in keeping with the dignity of the high office held by the learned Judge.


44. This aspect being related to the right of judicial review available to the concerned Judge and in view of our above opinion that an opportunity to the Judge during the parliamentary process is clearly implicit in the constitutional scheme, a brief reference to the nature of opportunity given in the case of Justice Vasta in Australia would be helpful as a persuasive precedent.


45. Justice Angelo Vasta faced a proceeding for his removal from office as a Judge of the Supreme Court of Queensland in Australia. A Commission of Inquiry was set up under the Parliamentary (Judges) Commission of Inquiry Act, 1988. The function of the Commission as provided in the Act was to inquire and advise the Legislative Assembly of Queensland whether the behaviour of Justice Vasta warranted his removal from office. The Commission was constituted of a former Chief Justice of Australia and two other Judges. The Commission was guided by the Special Report of the Australian Parliamentary Commission of Inquiry into the conduct of Justice Lionel Murphy, a Judge of the High Court of Australia under S. 72 of the Australian Constitution. The Commission advised the Legislative Assembly of Queensland that in the opinion of the members of the Commission, the behaviour of Justice Vasta in relation to the matters specified warranted his removal from office as a Judge of the Supreme Court of Queensland. The report of the Commission of Inquiry concerning Justice Vasta was laid on the table of the House on May 30, 1989. The Parliamentary Debates No. 16, 1988-89, from page 5146, indicate the procedure adopted by the,Legislative Assembly of Queensland on the report of the Commission of Inquiry being laid before the House. On May 30,1989, Mr. M. J. Ahern, Premier and Minister for State Department, moved the House in the matter and while saying that Justice Vasta be called upon to show cause why he should not be removed from office, speaking on the motion the Premier said:-


"The Commissioners have found and reported to Parliament that there has been behaviour by the judge such that his removal from office is warranted. No responsible Parliament could in those circumstances do other than call upon the judge to show cause why he should not be removed. That course is consistent with history, convention, the law and proper constitutional practice. The resolution proposed by the Government will give the judge full and proper opportunity to show cause without embarking upon a re- examination of those matters so minutely and carefully examination (Sic) by the commissioners.


I intend to say no more. I urge all honourable members to adopt a similar discretion in the interests of not prejudicing the judge and his right to appear before us to attempt to show cause."


(at p. 5147) (Emphasis supplied) In seconding the motion, the Minister for Justice and Attorney General, Mr. P. J. Clauson said:-


"By establishing the Parliamentary Judges Commission, the Assembly delegated to that body the difficult and arduous task of hearing the evidence, determining question of credit and law, and making recommendations which we will consider. Of course, the final decision rests quite properly with the Legislative Assembly. The Parliamentary Commission was established to assist Parliament, not to pre-empt its important constitutional role.


I believe that Mr. Justice Vasta has the. right - and we have the duty to allow him to address us, either personally or by his lega1 representatives should he so wish but the purpose of this privilege is to assist us in our difficult deliberations, Finally, I also wish to emphasise to honourable members that it would be inappropriate at this stage for there to debate on the findings of the Commission and it would be better both for the dignity of this House and in fairness to Mr. Justice Vasta that we give him the opportunity to address us before the matter is fully debated and a decision is made by the Assembly."


(Emphasis supplied) The Parliamentary Debates further show that Justice Vasta was given such an opportunity which he availed. It is not necessary in the present case to make any further reference to the proceedings against Justice Vasta. Suffice it to say that the materials relating to the proceedings of removal of Justice Vasta show clearly that he was given an opportunity to show cause against his removal from office as a Judge by the Parliament when it took up for consideration the recommendation of the Commission of Inquiry which had found him guilty of misbehaviour warranting his removal; and the cause shown by Justice Vasta before the Legislative Assembly was taken into consideration in making the final decision.


46. We find no reason why in the constitutional scheme adopted in India, the concerned Judge should not be given a similar opportunity when the Parliament takes up for consideration the motion for his removal on a finding of 'guilty' being made by the Committee constituted under the Judges (Inquiry) Act, 1968. Such an opportunity is consistent with and is also the requirement of fairness, an essential attribute of procedure for any decision having civil consequences. We need say no more on this aspect. We consider it necessary to say this much in view of our above opinion and Shri F. S. Nariman's submission with which the learned Attorney General agreed that this is the kind of procedure which the Parliament is expected to and is likely to follow in the present case, should the occasion arise for commencement of the parliamentary process if the Committee finds the learned Judge 'guilty' of misbehaviour.


47. If the constitutional scheme, as we have held, envisages and provides for an opportunity to the concerned Judge to show cause against his removal from office on the finding of 'guilty' recorded by the Inquiry Committee being placed before the Parliament for its consideration and the Parliament is required to take it into account before it decides to accept the finding of 'guilty' and act on it by adopting the motion of removal by the requisite majority or not to adopt the motion which would terminate the proceedings for removal, it would indicate that the opportunity of this kind in the scheme to show cause is against the inchoate finding of guilty prior to the stage of making the final decision which alone is required to be subject to judicial review. The clear intendment is that in such a situation it is the Parliament 'which should first consider the question without there being any need for judicial review at that stage. This is so because the misbehaviour is deemed to be proved, according to S. 6(3) of the Act, only when the Parliament adopts the motion in the manner prescribed. The remedy of judicial review to concerned Judge is available only when his misbehaviour is 'deemed to be proved' in law and not against the inchoate finding of 'guilty' made by the Inquiry Committee which may or may not be acted upon by the Parliament. Another reason to support this view appears to be that the proceedings for removal of a Judge are required to be concluded at the earliest in public interest and, therefore, no interdiction of the process is contemplated at the stage of an inchoate finding of 'guilty' by the Inquiry Committee. An opportunity to the concerned Judge at that stage also to show cause against that inchoate finding of guilty' fully safeguards his interest without the need for judicial review at that stage, the scope for Parliament's scrutiny of the Committee's finding of guilty being very wide.


48. Even though judicial review of the finding of 'guilty' made by the Inquiry Committee may be permissible on limited grounds pertaining only to legality, yet the power of the Parliament would not be so limited while considering the motion for removal inasmuch as the Parliament is empowered to not adopt the motion in spite of the finding of 'guilty' made by the Committee on a consideration of the entire material before it which enables it to go even into the probative value of the material on which the finding is based and to decide the desirability of adopting the motion in a given case. The Parliament decides by voting on the motion and is not required to give any reasons for its decision if it chooses not to adopt the motion. We have already indicated that the concerned Judge is to be given an opportunity to show cause against his removal before the Parliament. There is no reason to assume that the Parliament would not discharge its obligation in the constitutional scheme with as much responsibility and seriousness as is expected from any other organ of the State or authority involved in the process of removal of a Judge. The nature and extent of power entrusted to the Parliament in this process is a relevant factor to indicate exclusion of judicial review till after the making of the order of removal by the President in case the Parliament adopts the motion by the requisite majority. The finding of 'guilty' made by the Committee is only a recommendation to the Parliament to of commence its process and to act on that finding which, at best, is tentative and inchoate at the stage of submission of the report under S. 4 of the Act.


49. The contrary view would result in a serious anomaly. If the finding of 'guilty' made by the Committee by itself amounts to 'proved misbehaviour' for the purpose of Article 124(4), anomalous situation would arise if the Parliament does not adopt the motion of removal thereafter. In that situation the process would end and, notwithstanding a finding of 'proved misbehaviour', the Judge cannot be removed from office. Such a piquant situation at the end of the process of removal in spite of a finding of 'proved misbehaviour' could never be contemplated in the scheme and, therefore, a construction which can lead to that absurdity must be eschewed.


50. This being so, the remedy of judicial review to the concerned Judge has to be only after the stage of his 'proved misbehaviour' is reached on adoption of the motion by the Parliament which leads inevitably to the order of removal made by the, President in accordance with Article 124(4). Resort to judicial review by the concerned Judge, between the time of conclusion of the inquiry by the Committee and making of the order of removal by the President would be premature and is unwarranted in the constitutional scheme.


51. This construction while protecting interest of the concerned Judge gives full effect and due importance to the role of all the high dignitaries involved in the process of removal, there being no reason to doubt that each one of them would be fully alive to the significance of his role and extent of obligation under the constitutional scheme. If, however, any illegality occurs even then, the provision for judicial review at the end of the process permits its correction without interdicting the process in between.


52. We may at this stage deal with the other submission of Shri Kapil Sibal that the Inquiry Committee is a Tribunal for the purpose of Art. 136 of the Constitution.


53. Shri Kapil Sibal has urged that the Committee constituted by the Speaker / Chairman in exercise of his power under S. 3(2) of the Judges (Inquiry) Act, 1968 is a 'Tribunal' for the purpose of Art. 136 of the Constitution and since an appeal would lie in this Court against the findings of the said Committee, the report of the Committee is required to be furnished to the Judge concerned in order to enable him to exercise that right. Shri Sibal has pointed out that while recording its findings on the charges framed by it the Committee exercises judicial functions. Reference has been made to the provisions of S. 5 of the Act to show that the Committee has the trappings of a Court. Relying on the decisions of this Court in The Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd., 1950 SCR 459 Durga Shankar Mehta v. Thakur Raghuraj Singh, (1955) 1 SCR 267 Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, (1964) 6 SCR 594 and Dev Singh v. Registrar, Punjab and Haryana High Court, (1987) 2 SCR 1005 Shri Sibal has contended that the Committee fulfils the tests laid down by this Court for determining whether an authority is a tribunal for the purpose of Art. 136. The learned Attorney General has supported Shri Sibal.


54. Before we deal with the question whether the Committee in the present case fulfils the tests for determining whether a particular body is a tribunal, we may briefly refer to some of the decisions of this Court wherein this question has been considered.


55. In Jaswant Sugar Mills Ltd. v. Lakshmichand (1963) Supp 1 SCR 242 , the expression 'determination', in the context in which it occurs in Art. 136, has been construed to mean "an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted; rider a valid law of disposal". It was further,held that the expression "order" must also nave a similar meaning, except that, it need not operate to end the dispute. The Conciliation Officer, while granting or refusing permission to alter the terms of employment of workmen, in exercise of the power conferred upon him by clause 29 of the order issued by the Governor of Uttar Pradesh under the U. P. Industrial Disputes Act, 1947, was held not-to be a Tribunal under Art. 136 though the Conciliation Officer was required to act judicially. It was observed: -


"He is concerned in granting leave to determine whether there is a prima facie case for dismissal or discharge of an employee or for altering terms of employment, and whether the employer is actuated by unfair motives; he has not to decide whether the proposed step of discharge or dismissal of the employee was within the rights of the employer. His order merely removes a statutory ban in certain eventualities, laid upon the Common law right of an employer to dismiss, discharge or alter the terms of employment 'according to contract between the parties. The Conciliation Officer has undoubtedly to act judicially in dealing with an application under cl. 29, but he is not invested with the judicial power of the State; he cannot therefore be regarded as a 'tribunal' within the meaning of Art. 136 of the Constitution."


(Emphasis supplied)


56. In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd. (1992) 3 JT (S C) 446 on a conspectus of the earlier decisions, it was held by the Constitution Bench that the appropriate Government or authority while granting or refusing permission for retrenchment of workmen under S. 25-N of the Industrial Disputes Act, 1947, is not a tribunal on the view that the position of the appropriate Government or authority exercising the said power was not very different from that of a Conciliation Officer who was held to be not a tribunal in Jaswant Sugar Mills (AIR 1963 SC 677 ). The view taken was that there was no provision attaching finality to an order under S. 25-N(2) and it was permissible for the workmen aggrieved by retrenchment affected in pursuance of order granting permission for such retrenchment to raise an industrial dispute and also open to the appropriate Government to refer such a dispute for adjudication. It is unnecessary to refer to the earlier decisions considered therein.


57. The decisions of this Court indicate that one of the considerations which has weighed with the Court for holding a statutory authority to be a tribunal under Art. 136 is finality or conclusiveness and the binding nature of the determination by such authority.


58. It may be pointed out that in Dev Singh v. Registrar, Punjab & Haryana High Court, (1987 (2) SCR , on which reliance was placed by Shri Sibal, it was held that the High Court, while exercising its appellate powers under Rule X(2) in Chapter 18-A of the Rules and Orders of the Punjab High Court, Vol. I, against penalties inflicted by the District Judge in disciplinary proceedings against ministerial servants, was acting purely administratively and was not acting as a tribunal since it was not resolving any dispute or controversy between two adversaries but only exercising its power of control over the subordinate judiciary. It was observed:


"In certain matters even Judges have to act administratively and in so doing may have to act quasi-judicially in dealing with the matters entrusted to them. It is only where the authorities are required to act judicially either by express provisions of the statute or by necessary implication that the decisions of such an authority would amount to a quasi Judicial proceeding. When Judges in exercise of their administrative functions decide cases it cannot be said that their decisions are either judicial or quasi-judicial decisions In the appeal before the High Court, the High Court was following its own procedure, a procedure not normally followed in judicial matters. The High Court was not resolving any dispute or controversy between two adversaries. In other words, while deciding this appeal there was no lis before the High Court. The High Court was only exercising its Power of control while deciding this appeal"


(Emphasis supplied)


59. We have earlier indicated the constitutional scheme in the process of removal of a Judge as envisaged by clauses (4) and (5) of Article 124 read with the provisions of the law enacted under Art. 124(5). It is. with reference to that constitutional scheme that this contention has to be examined.


60. It is no doubt true that while investigating into the charges framed by it against the Judge, the Committee is required to act judicially and, as held by this Court in Sub-Committee on Judicial Accountability (AIR 1992 SC 320 ), the said process is subject to judicial review. But the question is whether in discharging this function the Committee acts as a tribunal. In order to answer this question it is necessary to examine the nature of determination made by the Committee.


61. In this context, it would be relevant to recall the scheme indicated earlier. The determination by the Committee that the Judge is 'not guilty' of misbehaviour is alone final as it terminates the proceeding. However, in that case there is no scope for judicial review of the finding of 'not guilty' made by the Committee as already indicated. This aspect negates the character of tribunal for this reason alone. In the other situation when the Committee's determination is that the Judge is 'guilty' of misbehaviour, that finding is inchoate which may or may not be acted upon by the Parliament. Finding of 'guilty' made by the Committee is in the nature of recommendation to Parliament to commence its process and by itself is not self-effectuating. Thus, the finding recorded by the Committee where it finds the Judge guilty of any misbehaviour being subject to acceptance by the Parliament is not final and is, therefore, not conclusive.


62. No action is to be taken on the motion in case the Committee finds that the Judge is not guilty of any misbehaviour. In that event if the Committee has to be regarded as a tribunal under Art. 136, it would serve no useful purpose and would also lead to the anomalous result that the Committee is to be treated as a tribunal if it finds that the Judge is not guilty of any misbehaviour but it is not to be treated as a tribunal if it finds that the, Judge is guilty of any misbehaviour. The character of the Committee as a tribunal cannot depend on the findings that are ultimately recorded by it.


63. The misbehaviour of the Judge is 'deemed to be proved' according to S. 6(3) of the Act only when the motion is adopted by the Parliament and not otherwise. The finding of 'guilty' made by the Committee does not by itself bring about that result. An essential test of the determinative nature of the finding, an attribute of the tribunal is lacking. The test indicated in Dev Singh (AIR 1987 SC 1629 ) of the absence of the any dispute or lis between two adversaries also negatives the contention that the Committee is a tribunal for the purpose of Art. 136.


64. In effect, the report of the Inquiry Committee containing a finding that the Judge is guilty of misbehaviour is in the nature of recommendation for his removal which may or may not be acted upon by the Parliament while considering the motion for removal according to the procedure laid down in the Constitution for removal of a superior Judge, which is the only manner of curtailing the fixed tenure of the Judge. This is for security of tenure and thereby to ensure independence of the higher judiciary. The report of the Committee being of this kind, in our opinion, the Inquiry Committee cannot be treated as a 'tribunal' for the purpose of Art. 136 of the Constitution. For this reason, no provision is made in the law enacted under Art. 124(5) for supply of a copy of the report by the Committee to the concerned Judge before submitting it to the Speaker as required by S. 4 of the Act in the manner prescribed in the Rules.


65. If the supply of a copy of the report to the Judge by the Committee before its submission to the Speaker was contemplated by the law enacted under Art. 124(5) that area would not be left blank in the provisions made in the law while providing elaborately for submission of the report together with its manner, including the number of copies, in S. 4 of the Act and R. 9 framed thereunder. The absence of such a provision in this law is a deliberate and not an inadvertent omission to emphasis absence of the requirement which also matches the construction made by us of the Constitutional scheme including the requirement of an opportunity to show cause against removal to be given by the Parliament to the Judge.


66. Keeping in view the aforesaid provisions of the Act and the Rules and specially.the fact that certain finding recorded by a member of the Committee is not required to be disclosed in the given circumstances and the finding recorded by the Committee holding that the Judge is guilty of any misbehaviour is not final and conclusive, it is legally not permissible to hold that the Committee is a tribunal under Art. 136 of the Constitution. This contention of Shri Sibal is, therefore, rejected.


67. No doubt, on a motion for presenting an address to the President praying for removal of the Judge being adopted in each House of Parliament by the requisite majority in the manner prescribed, the misbehaviour or incapacity of the Judge is 'deemed to be proved and the order of removal made by the President in accordance with Art. 124(4) would follow. The question is: whether it is open to the concerned Judge so removed to challenge the finding of 'guilty' made by the Inquiry Committee which leads to the making of order of removal by the President after the President has made the order of removal? Shri Nariman's submission was that judicial review of the order of removal may not be excluded but he could not definitely say so. The learned Attorney General as well as Shri Sibal submitted that it is likely that the remedy of judicial review may be available to the concerned Judge after the order of removal has been made, but it was extremely doubtful. Shri Sibal added that with the parliamentary part of the process intervening, it appeared more unlikely that such a remedy would be available to the concerned Judge after the order of removal is made by the President.


68. On giving our anxious consideration to the submissions made by the learned counsel, we find no embargo, in principle or authority, to infer that in the Constitutional scheme adopted in India, judicial review of the finding of guilty recorded by the Inquiry Committee during the statutory part of the process is impermissible after that tentative, finding matures into 'proved misbehaviour culminating in the order of removal. The argument of 'now or never' does not appeal to us and what appears more consistent in the Constitutional scheme is that judicial review on permissible grounds is available not now but at the end of the process after the order of removal, if that stage is reached. In our view, this conclusion adequately protects the right of the concerned Judge, ensures expeditious conclusion of the process once it is commenced in the manner prescribed and accords with the view that the scheme is 'a judicious blend of the political and judicial processes for the removal of Judges'. It ensures preservation of the right, interest and dignity of the learned Judge and is commensurate with the dignity of all the institutions and functionaries involved in the process. It also excludes the needless meddling in the process by busy bodies confining the participation in it to the Members of Parliament, the Speaker / Chairman and the Inquiry Committee comprising of high judicial functionaries apart from the concerned Judge, if the allegations permitted to be made only in the prescribed manner justify an inquiry into the conduct of the Judge.


69. In the event of an order of removal being made by the President under Article 124(4), the right of the concerned Judge to seek judicial review on permissible grounds would be for quashing the order of removal made against him on the basis that the finding of 'guilty' made by the Inquiry Committee in its report which matured into 'proved misbehaviour' on adoption of the motion by Parliament suffers from an illegality renderhig it void resulting in the extinction of the, condition precedent for commencement of the parliamentary process for removal in the absence of which there is no foundation for considering or adopting the motion for presenting an address to the President for removal of the Judge and, therefore, no authority in the President to make the order of removal.


70. The permissible grounds for judicial review of the finding of 'guilty' reached by a statutory process are well-settled and whether the ground of challenge in a given case is available for this purpose or not would be a question of fact in each case. In view of the limited question raised in this petition after conclusion of the proceedings before the Inquiry Committee and the preparation of its report, there is no occasion for us to examine the grounds of attack to a finding of'guilty', if any, reached in the present case. That question does not arise for consideration by us in the present proceeding and, therefore, we need not say anything more on this aspect.


71. We may, however, add that the intervention of the parliamentary part of the process, in case a finding of guilty is made, which according to Shri Sibal would totally exclude judicial review thereafter is a misapprehension since limited judicial review even in that area is not in doubt after the decision of this Court in Keshav Singh - (1965) 1 SCR 413 A reference to this aspect was made also in Sub-Committee on Judicial Accountability, (1991 (4) SCC 699 , while dealing with the meaning and scope of clause (5) of Art. 124 of the Constitution. It was said therein as under:-


"Article 124(5) is in the nature of a special provision intended to regulate the procedure for removal of a Judge under Art. 124(4) which is not a part of the normal business of the House but is in the nature of special business. It covers the entire field relating to removal of a Judge. Rules made under Article 118 have no application in this field.


ARTICLE necessary to specifically prescribe that the law made under Art. 119 shall prevail over the rules of procedure made under Art. 118. Since Articles 118 and 124(5) operate in different fields a provision like that contained in Art. 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 law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1)."


(of SCC) (Emphasis supplied)


72. At this stage, a reference to the nature and scope of judicial review as understood in similar situations is helpful. In Administrative Law (Sixth Edition) by H. W. R. Wade, in the chapter "Constitutional Foundations of the Powers of the Courts" under the heading 'The Sovereignty of Parliament', the effect of Parliament's intervention is stated thus:-


"There are many cases where some administrative order or regulation is required by statute to be approved by resolutions of the Houses. But this procedure in no way protects the order or regulation from being condemned by the Court, under the doctrine of ultra vires, if it is not strictly in accordance with the Act. Whether the challenge is made before or after the Houses have given their approval is immaterial."


(Emphasis supplied) Later at p. 411, Wade has said that 'in accordance with constitutional principle, parliamentary approval does not affect the normal operation of judicial review'. while discussing 'Judicial Review', Wade indicates the position thus -


"As these cases show, judicial review is in no way inhibited by the fact that rules or regulations have been laid before Parliament and approved, despite the ruling of the House of Lords that the test of unreasonableness should not then operate in its normal way. The Court of Appeal has emphasised that in the case of subordinate legislation such as an order in Council approved in draft by both Houses, 'the Courts would without doubt be competent to consider whether or not the Order was properly made in the sense of being intra vires'."


73. The clear indication, therefore, is that mere parliamentary approval of an action or even a report by an outside authority when without such approval, the Action or report is ineffective by itself does not have the effect of excluding judicial review on the permissible grounds. In the present context, the only question for us to consider is whether judicial review of the finding of guilty in the report of the Inquiry Committee constituted under the Judges (Inquiry) Act, 1968 would be permissible on the available grounds of judicial scrutiny after the making of an order of removal by the President pursuant to adoption of the motion for removal by the Parliament based on the Inquiry Committee's report. There is no ground to hold that judicial review is barred for this reason.


74. In our opinion, availability of judicial review to the learned Judge, in case the need arises as a result of the order of removal made by the President, after the making of such an order cannot be doubted in view of the vide powers of the Supreme Court of India.


75. Judicial review is the exercise of the Courts' inherent power to determine legality of an action and award suitable relief and thereby uphold the rule of law. No further statutory authority is needed for the exercise of this power which is granted by the Constitution of India to the superior courts ' There is no reason to take the view that an order of removal of a Judge made by the President of India under Art. 124(4) of the Constitution is immune from judicial review on permissible grounds to examine the legality of the finding of guilty made by the Inquiry Committee during the statutory process for removal which is the condition precedent for commencement of the parliamentary process culminating in the making of order of removal by the President.


87. In S.P.Gupta v. Union of lndia,1981 Supp SCC 87 Venkataramiah, J. as he then was, after stating that 'the doctrine of political question which was holding the field long time back in the United States of America has now been exploded', referred to the decisions of the U. S. Supreme Court in Baker v. Carr 1962 (369) US 186 and Powell v. McCormack, (1969) 395 US 486: (1969) 23 L Ed 2d 491, as well as the opinion of R. Berger and then summarised the position in India as under:-


"In our country which is governed by a written Constitution also many questions which appear to have a purely political colour are bound to assume the character of judicial questions. In the State of Rajasthan v. Union of India, (1978) 1 SCR 1 the Government's claim that the validity of the decision of the President under Art. 365(1) of the Constitution being political in character was not justifiable on that sole ground was rejected by this Court. Bhagwati, J. in the course of his judgment observed in that case at SCR pages 80-81 It will, therefore, be seen that merely because a question has a political colour, the Court cannot fold its hands in despair and declare "Judicial hands off". So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. It is necessary to assert in the clearest terms, particularly in the context of recent history, that the Constitution is suprema lex, the paramount law of the land, and there is no department or branch of Government above or beyond it. Every organ of Government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits.It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law.


The objection that the questions involved in these petitions are non- justiciable merely on the ground that they are political in character has to be negatived. But it is made clear that the courts are not entitled to enquire into every sort of question without any limitation. There is still a certain class of questions such as international relations, national security which cannot be entertained by the Court. It is for the Court to determine in each case whether a particular question should be debated before it or not." (Paras 981 & 982 (Emphasis supplied)


88. The above discussion indicates the modern trend to accept judicial review in certain situations within circumscribed limits even where the entire process is political since the 'political question doctrine', as discussed in Powell, permits this course. In such cases where the entire process is political, judicial review to the extent permissible on conclusion of the political process is not doubted. There appears to be no reason in principle why judicial review at the end of the entire process of removal of a Judge in India, where it is a composite process of which the political process is only a part, can be excluded after conclusion of the entire process including the political process. It appears to us that the view we have taken is reinforced by the law in other systems as indicated above.


89. At the commencement of the hearing of this petition, the learned Attorney General made the statement that the Speaker would await the declaration of law made in our decision and abide by it. A statement to this effect was also made by Shri F. S. Nariman on behalf of the Inquiry Committee. Consistent with the statement made by the learned Attorney General, the Hon'ble Speaker of the Lok Sabha also extended the time for submission of the report by the Committee, to give us reasonable time to prepare our opinion after conclusion of the hearing. This augurs well for the future.


90. Willis in Constitutional Law of the United States (1936) making 'final evaluation of the work of the Supreme Court' speaks about the U.S. Supreme Court thus:


"Without the Active co-operation of justices of the Supreme Court, the Constitution would be a dead letter. They protect alike their own powers, executive powers, and legislative powers against encroachments and designs of the other departments It does not have the positive power over the purse nor over the sword, nor any other powers which could actually overthrow our Government, but the negative power of declaring the law, which has kept our whole mighty fabric of Government from rushing to destruction.


The Court has not been infallible. It has made mistakes. It sometimes has run counter to the deliberate and better judgment of the c community. But the final judgment of the American people will unquestionably be that their constitutional rights are safe in the hands of the federal judiciary. Throughout the whole history of the United States, it furnishes the highest example of adequate results of any branch of our Government. it has averted many a storm which has threatening our peace and has lent its powerful aid in uniting the whole country in the bonds of justice. To paraphrase the language of William Wirt, "if the judiciary were struck from our system" there would be little of value that would remain. The Government cannot exist without it. "It would be as rational to talk of a solar system without a sun" as to talk of a Government in the- United States without the doctrine of the supremacy of the Supreme Court."


91. The role of the Supreme Court of India is no less significant or wide as envisaged in the Constitution which came to be enacted after the role of the U.S. Supreme Court in a comparable constitutional scheme had come to be so understood and appreciated.


92. In this context, it is also useful to recall the observations of R. S. Pathak, C.J., speaking for the Constitution Bench in Union of India v. Raghubir Singh (Dead) by LRs. (1989) 2 SCC 754 about the; nature and scope of judicial review in India. The learned Chief 'Justice stated thus:-


" It used to be disputed that Judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State flows from the decisions of the superior courts. "There was a time," observed Lord Reid, "when it was thought almost indecent to suggest that Judges make law - they only declare it But we do not believe in fairy tales any more". In countries such as the United Kingdom, where Parliament as the legislative organ is supreme and stands at the apex of the Constitutional structure of the State, the role played by judicial law-making is limited And Ungoed Thomas, J. in Cheney v. Conn (1968 (1) All ER 779 : [1968] 1 W.L.R. 242 ) referred to a Parliamentary statute as "the highest form of law which prevails over every other form of law". The position is substantially different under a written Constitution such as the one which governs us. The Constitution of India, which represents the Supreme Law of the land, envisages three distinct organs of the State, each with its own distinctive functions, each a pillar of the State. The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of lawWith this impressive expanse of judicial power, it is only right that the superior courts in India should be conscious of the enormous responsibility which rest on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitution, binding on all Courts within the territory of India."


"This need for adapting the law to new urges in society brings home the truth of the Holmesian aphorism that "the life of the law has not been logic it has been experience", and again when he declared in another study that "the law is forever adopting new principles from life at one end", and "sloughing off" old ones at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined.


Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well, affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing version of legal proposition,or the modalities of an indeterminancy such as "fairness" or " reasonableness", but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters.".


(Emphasis supplied) It is this onerous constitutional obligation which we have attempted to discharge keeping in view the limitations within which the exercise has to be performed.


93. We have already indicated the constitutional scheme in India and the true import of clauses (4) and (5) of Article 124 read with the law enacted under Article 124(5), namely, the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969, which, inter alia contemplate the provisions for an opportunity to the concerned Judge to show cause against the finding of 'guilty' in the report before the Parliament takes it up for consideration along with the motion for his removal. Along with the decision in Keshav Singh (AIR 1965 SC 745) has to be read the declaration made in Sub- Committee on Judicial Accountability that '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)'. The scope of permissible challenge by the concerned Judge to the order of removal made by the President under Article 124(4) in the Judicial review available after making of the order of removal by the President will be determined on these considerations. This question in the context of the process and progress of the statutory inquiry prior to recording of the findings in the report of the Inquiry Committee does not arise in this case and has not been raised at the instance of the concerned Judge even in the connected matter, W.P. (C) No. 149 of 1992 -Shri Krishna Swami v. Union of India & others , which was filed earlier and, therefore, we express no opinion on the scope of judicial review during the progress of inquiry prior to its conclusion. The reasons for declining to consider those questions at the instance of a third person in the absence of the concerned Judge facing the inquiry are given by us in the separate judgment delivered by us in that matter.


94. In sum, the position is this: Every Judge of the Supreme Court and the High Courts on his appointment is irremovable from office during his tenure except in the manner provided in clauses (4) and (5) of Article 124 of the Constitution of India. The law made by the Parliament under Article 124(5), namely, the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969 framed thereunder, is to be read along with Article 124(4) to find out the constitutional scheme adopted in India for the removal of a Judge of the Supreme Court or a High Court. The law so enacted under Article 124(5) provides that any accusation made against a sitting Judge to enable initiation of the process of his removal from office has to be only by not less than the minimum number of Members of Parliament specified in the Act, all other methods being excluded. On initiation of the process in the prescribed manner, the Speaker/ Chairman is to decide whether the accusation requires investigation. If he chooses not to act on the accusation made in the form of motion by the specified minimum number of Members of Parliament, the, matter ends there. On the other hand, if the Speaker/ Chairman, on a consideration of the materials available and after consulting such persons as he thinks fit, forms the opinion that a prima facie case for investigation into the accusation against the Judge is made out, he constitutes a committee of judicial functionaries in accordance with Section 3(2) of the Act. If the Inquiry Committee at the conclusion of the investigation made by it records a finding that the Judge is 'not guilty', the process ends with no one, not even the Parliament, being empowered to consider much less question the finding of 'not guilty' recorded by the Inquiry Committee. If the finding made by the Inquiry Committee is that the Judge is 'guilty', then the Parliament considers the motion for removal of the Judge along with the Committee's report and other available materials including the cause, if any, shown by the concerned Judge against his removal for which he has to be given an opportunity after submission of the report to the Speaker/ Chairman under Section 4(2) of the Act. To be effective, this opportunity must include supply of a copy of the report to the concerned Judge by the Speaker/Chairman while causing it to be laid before the Parliament under Section 4(3). If the Parliament does not adopt the motion for removal of the Judge, the process ends there with no challenge available to any one. If the motion for removal of the Judge is adopted by the requisite majority by the Parliament culminating in the order of removal by the President of India under Article 124(4) of the Constitution, then only the concerned Judge would have the remedy of judicial review available on the permissible grounds against the order of removal. The statutory part of the process, by which a finding of guilty is made by the Inquiry Committee, is subject to judicial review as held in Sub-Committee on Judicial Accountability, (AIR 1992 SC 320 ) but in the manner indicated herein, that is, only in the event of an order of removal being made and then at the instance of the aggrieved Judge alone. The Inquiry Committee is statutory in character but is not a tribunal for the purpose of Article 136 of the Constitution.


95. The view we have taken is in complete accord with the majority opinion in sub-committee on Judicial Accountability that the statutory part of the process of removal of a Judge is subject to judicial review. The question of the stage and the situation in which the remedy of judicial review becomes available and by whom it can be availed did not arise for consideration in the earlier case and, therefore, this further question which now arises before us was not dealt with therein. The real controversy in the earlier decision was whether the entire process of removal of a Judge in our constitutional scheme is parliamentary to attract the doctrine of lapse to the motion for removal of the learned Judge on dissolution of the Ninth Lok Sabha or a part thereof was statutory to which the doctrine of lapse of motions in the Parliament could have no application. It was in this context that the majority in that decision took the view that the process was statutory till the Parliament takes up the motion for consideration on a finding of 'guilty' being made by the Inquiry Committee in its report which is submitted to the Parliament; and the Ninth Lok Sabha having been dissolved before commencement of the Parliamentary process, there was no question of the motion lapsing at that stage which was statutory.


96. On a careful reading of the earlier decision in Sub-Conimittee on Judicial Accountability, (AIR 1992 SC 320 ) we are unable to accept the submission, that the only logical corollary of the earlier decision is that the concerned Judge has a right to obtain a copy of the report of the Inquiry Committee before commencement of the parliamentary process to enable him at this stage to avail the remedy of judicial review in case the Committee has recorded a finding of 'guilty' against the learned Judge. We have adequately indicated how the rights of the learned Judge are fully protected on the construction we have made of the relevant provisions and the manner in which we have read the Constitutional scheme adopted in India for the removal of a superior Judge in accordance with clauses (4) and (5) of Article 124.


97. We have no doubt that every constitutional functionary and authority involved in the process is as much concerned as we are to find out the true meaning and import of the scheme envisaged by the relevant constitutional and statutory provisions, in order to prevent any failure by any one to discharge the constitutional obligations avoiding transgression of the limits of the demarcated powers. No doubt, there are certain grey areas. We have attempted to illuminate them with the able assistance of the learned counsel who are equally concerned that the law should be unambiguously and correctly stated to avoid any possible misapplication thereof. All that is necessary for us to do is to declare the correct constitutional position as we are able to discern, there being no need to issue any specific writ or direction to any authority and to 'leave the different organs of the State to consider matters falling within the orbit of their respective jurisdiction and powers' as was done in the earlier case. We do so, accordingly, herein.

コメント


bottom of page