SMT. SAROJINI RAMASW AMI v. UNION OF INDIA AND ANR.

"But the constitutional scheme in India seeks to achieve a judicious blend of the political and judicial F 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 and intention to exclude determination by a judicial process of the correctness of the allegations of mis- G behaviour or incapacity on a more careful examination this is not the correct conclusion..... " (para 44 at p. 731)

"The proceedings in the Constituent Assembly, there- fore, do not give an indication that in adopting clauses (4) H

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A 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 B opposing the amendments proposed by Shri M. Anan- thasayanam Ayyangar, it is possible to infer that the in- · tention of the Constituent Assembly was that the provision with regard to the machinery for such investigtion and proof was a matter which need not be contained in the c Constitution and it is a matter for which provision could be made by Parliament by law."

(para 46 at p. 733) The three available constitutional options were mentioned in the decision of which the second which was accepted in 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 m.ade until the allegations relating to misbehaviour or incapacity have first been found to be proved in some forµm outside either Houses of Parlia- F ment. 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 G brought into the picture till some authority outside the two' Houses of Parliament has recorded a finding of mis- behaviour or incapacity. The emphasis is on the expression 'proved'. 11

H (para 68 at p. 741)

SMT. S. RAMASWAMI v. lJ.0.1. [VERMA, J.] 151

Acceptance of the second view was stated thus - A

"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 B the word "proved" in Article 124(4). This view would also ensure uniformity of procedure in both Houses of Parlia- ment and serve to eliminate arbitrariness in the proceed- ings for removal of a Judge. It would avoid duplication of the investigation and inqniry in the two Houses. Let us elaborate on this." c/ (para 71 at p. 742)

" ..... 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 conncection, the par- liamentary procedure commences only after proof of mis- behaviour 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 mis- F behaviour or incapacity of a Judge has to be made, inves- tigated 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 present- G ing 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 H

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A of the Judge, the bar on discussion contained in Article I 121 is lifted and discussion can take place in the Parlia- ment with respect to the conduct of the Judge; and the further consequenc" would ensue depending on the out- come of the motion in a House of Parliament. If, however, the finding reached by the machinery provided in the B 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)."

(para 74 at p. 744) c "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 D stage; and for reaching that stage the Parliament is re- quired 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 E 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 mis- behaviour or incapacity is moved for presentation of the address to the President in the manner prescribed. .. ... F 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 mis- behaviour or incapacity, beginning with tlie 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

SMT. S. RAMASWAMI v. U.0.1. [VERMA, J.] 153

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 fmding is reached by that machinery that the alleged misbehaviour or incapacity has been proved. The Judges (Inqlliry) 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 con- . forms to this view....... " c (para 76 at p. 745)

"If this be the co"ect 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 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 conse- quently exclusion of this Court's jurisdiction in the matter at this stage does not arise. ..... " F (para 77 at p. 746)

(emphasis supplied)

" ...... This indicates that this area is not left uncovered which too is a pointer that the stage ai which the bar in G Article 121 is lifted, is the starting point of the parliamen- tary process i.e. when the misbehaviour or inca;>acity 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 H

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A the allegation is not proved, the condition precedent to invoke the Parli'ament's jurisdiction under clause (4), does not exist, which is the reason for Section 6 of 1968 Act , 1 saying so; and in case it is proved, the process under clause (4) commences, culminating in the result provided in it."

B (para 79 at p. 747)

"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 c 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 ~ccordance with th.e Jaw 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."

(paras 81 and 82 at pp. 747-748) F "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 Par- liament in the sense that even if the committee for inves- tigation 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 accountahilty of

SMT. S. RAMASWAMJ v. U.0.1. [VERMA, J.] . 155

Judges and the values of Judicial independence." A (para 97 at pp. 751-752)

"Our conclusions, therefore, ·on Contentions B, C and D are as under: B 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 com- mittee 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 c 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 D the conduct of a Judges 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 in- choate. Contention C is answered accordingly." E (paras 99 and 100 at pp. 752-753)

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

The constitutional scheme indicated by clauses (4) and (5) of Article 124 and reflected in the law enacted by the Parliament under Article 124(5) is, as indicated in Sub-Committee on Judicial Accountability, 'a judicious blend of the politicial and.judicial processes for the removal of Judges' and, G therefore, we must first look at these provisions to provide the answer to every qi.ery raised in this context. The different schemes for removal of Judges in the other countries do not provide the answer to t~e problem before us and are at best only of marginal precedent value. The practice and precedents in other countries, such as Australia, may provide guida'nce H

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A 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 Section 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 Article 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 dig- nitaries 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 the finding of 'not guilty'. D When the finding in the Committee's report is that the Judge is 'guilty' of any misbehaviour, then Section 6(2) of the Act :nandates 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 Sec- tion 4(2) and laid before it under Section 4(3) of the Act. Rule 9(1) of the E 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 member 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 prohibi- tion 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 Section 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 anyone including the Parliament, where the majority of the members of the

SMT. S. RAMASWAMI v. U.0.1. [VERMA, J.] 157

Inquiry Committee makes a finding that the Judge is not guilty of any mis- A behaviour, 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 Section 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 Section 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 Par· liamenl alung with the report. These provisions indicate the manner of con· sideration 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 Article 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 in· capacity of the Judge shall be deemed to have been proved as provided in Section6(3) of the Act. E The Parliament while considering the motion for removal of the Judge for deciding whether to adopt the motion or not takes into con- sideration 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 F 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 G the finding of guilty recorded in the report of the Committee after debating the issue on the basis of the materials before it.

These express provisions in the law enacted under Article 124(4) leave no doubt that a full consideration on merits including correctness of H

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A 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 the 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 fodge which would terminate the B process of removal.

Consistent with this scheme which is manifest from the provisions of the law enacted under Article 124(5) is the requirement that the Parliament should also have the benefit of the comments, if any, of the concerned C 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 Parlia- ment 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 Commit- tee. 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 a F scheme for the removal of Judge provided in Article 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 Com- mittee in its report when the Parliament takes up the motion for removal of the Judge for consideration along with the Inquiry Committee's report G and the other relevant materials made available to it. To enable perfor- mance 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 H while causing it to be laid before the Parliament under S_ection 4(3) 'as

SMT. S. RAMASWAMI v. U.0.1. [VERMA, J.] 159

soon as may be' on its submission under Section 4(2). This view also has A 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. B The further question then is of the nature of this opportunity to the conerned 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. C Nariman. Learned counsel submitted that an opportunity to the learned Judge during the parliamentary process in the case of the 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 A :torney General expressed his full agreement with this submission of Shri Nariman. Shri Kapil Sibal without contesting this sub- mission of Shri Nariman sup;iorted on this aspect by the Attorney Genera~ 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.

We fmd 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 t Committee's fmding of 'guilty' for consideration by the Parliament along with the other materials available to it while considering the motion for I 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 en- visaged and reflected by the constitutional provisions and the law enacted thereunder for the removal of a Judge it is implicit that such an opportunity G 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 Section 4(3) as a rart of this H

160 SUPREMECOURTREPORTS [1992] SUPP. l S.C.R.

A opportunity to be given to the learned Judge. 'J!he 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 B 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 concerne<I Judge and being in keeping with the dignity of the high office held by the learned Judge.

C 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 pursuasive D precedent.

Justice Angelo Vasta faced a proceeding for his removal from office as a Judge of the Supreme Court of Queensland in Australia. A Commis- sion of Inquiry was set up under the Parliamentary (Judges) Commission of Inquiry Act, 1988. The function of the Commission as provided in the E 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 gnided by the Special Report of the Australian Parliamentary Commission of Inquiry into the conduct of F Justice Lionel Murphy, a Judge of the High ·court of Australia under Section 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 G Justice Vesta 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, H moved the House in the matter and while saying that Justice Vasta be

SMT. S. RAMASWAMI v, U.0.1. [VERMA, J.] 161

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 Parlia- ment that there has been behaviour by the Judge such that his removal from office is warranted. No responsible Par- liament 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 up a C re-examination of those matters so minutely and carefully examination (sic )by the Commissioners.

xxx xxx xxx

I intend to say no more. I urge all honourable members D 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.11 (at p. 5147) E (emphasis supplied)

In seconding the motion, the Minister for Justice and Attorney General, Mr. P J. Clauson said :-

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

xxx xxx xxx H

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A 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 legal representatives, should he so wish; but the purpose of this privilege is to assist us in our difficult deliberation ........ .

B Finally, I also wish to emphasise to honourable members that it would be inappropriate at this stage for there to be 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 c us before the matter is fully debated and a decision is made by the Assembly." (at pp. 5147-48) (emphasis supplied)

D 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 proceedin!!s 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 E 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.

p 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

SMT. S. RAMASWAMI v. U.0.1. (VERMA, J.] 163

learned Judge 'guilty' of misbehaviour. A

If the constitutional scheme, as we have held, envisages and provides for an opportunity to the concerned Judg~ to show cause against his removal from office on the finding of 'guiltf recorded by the Inquiry Committee being placed before the Parliament for its consideration and B !he 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 Section 6(3) of. the Act, only when the Parliament adopts the motion in the manner prescribed. The remedy of judicial review to the 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 F finding of guilty being very wide.

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 G considering the motion for removal inasmuch as the Paarliament is em- puwered 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 .,f 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 aLd is not H

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A 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 B 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 C recommendation to the Parliament to commence its process and to act on that finding which, at best, is tentative and inchoate at the stage of submis- sion of the report under Section 4 of the Act.

The contrary view would result in a serious anomaly. If the finding of D 'guilty' made by the Committee by itself amounts to 'proved misbehaviour' for the purpose of Article 124(4), anomalous situation would arise if the Parlia- ment 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.

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. G This construction while protecting the interest of the concerned Judge gives full effect and due importance to the role of all the high dignit<tries 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

SMT. S. RAMASWAMI v. U.0.1. [VERMA, J.] 165

even then, the provision for judicial review at the end of the process permits its correction without inte ·dieting the proce.ss in between.

We may at this stage deal with the other submission of Shri Kapil Sibal that the Inquiry Conimittee is a Tribunal for the purpose of Article 136 of the Constitution. B Shri Kapil Sibal has urged that the Committee constituted by the Speaker/Chairman in exercise of his power under Section 3(2) of the Judges (Inquiry) Act, 1968 is a 'Tribunal' for the purpose of Article 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 C 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. Ref- erence has been made to the provisions of Section 5 of the Act to show that the Conimittee 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., D [1950].SCR 459; Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., ~1955] 1 SCR 267; lndo-China Steam Navigation Co. Ltd. v. Jasjit Singh; (1964] 6 SCR 594 and Dev Singh & Ors. v. Registrar, Punjab & Haryana High Court & Ors., [1987] 2 SCR 1005, Shri Sibal has contended that the Committee fulfils the tests laid down by this Court for determining whether E an authority is a tribunal for the purpose of Article 136. The learned Attorney General has supported Shri Sibal.

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 F wherein this question has been considered.

In Jaswant Sugar Mills Ltd. v. Lakshmichand & Ors., (1963] Supp. 1 SCR 242, at p. 260, the expression 'determination', in the context in which it occurs in Article 136, has been construed to mean "an effective expres- sion of opinion which ends a controversy or a dispute by some authority to G whom it is submitted under a valid law of disposal''. It was further held that the expression "order must also have a similar meaning, except that it need 11

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 H

166 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A by the Governor of Uttar Pradesh under the U.P. Industrial Disputes Act, 1947, was held not to be a Tribunal under Article 136 though the Concilia- tion 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 B employee or f01 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 c 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 bas undoubtedly to act judicially in dealing with an application under cl. 29, but be is not invested with the judicial power of the State: he cannot D therefore be regarded as a 'tribunal' within the meaning of Article 136 of the Constitution." (at p. 262) (emphasis supplied)

E In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd. & Anr., JT (1992) 3 SC 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 Section 25-N of the Industri'!i Disputes Act, 1947, is not a tribunal on the view that the position of the appropriate Government or authority exercis- ing 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. The view taken was that there was no provision attaching finality to an order under Section 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.

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

SMT.S. RAMASWAM!v. U.0.1. [VERMA,J.] 167

tribunal under Article 136 is finality or conclusiveness and the binding nature of the determination by such authority.

It may be pointed out that in Dev Singh & Ors. v. Registrar, Punjab & Haryana High Court & Ors. (supra), 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 B 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 : C

"..... In certain matters even Judges have to act administra- tively 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 implica- D tion that the decisions of such an authority would amount to a quasi-judicial proceedings. When Judges in exercise of their administrative functions decides cases it cannot be said that their decisions are either judicial or quasi- judicial decisions ..... In the appeal before the High Court, E the High Court was following its own procedure, a pro- cedure 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 /is before the High Court. The High Court was only exercising its power of control while deciding this F appeal ....... "

(at pp. 1028-29)

(emphasis supplied) G 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 Article 124(5). It is with reference to that constitutional scheme that this contention has to be examined. H

168 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A 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, the said proce~s is subject to judicial review. But the question is whether in dis- charging this function the Committee acts as a tribunal. In order to answer B the question it is necessary to examine the nature of determination made by the Committee.

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, C 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. D Fmding of 'guilty' made by the Committee is in the nature of recommen- dation to Parliament to commence its process and by itself is not self-ef- fectuating. 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.

E 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 tnbunal under Article 136, it would serve no useful purpose and would also lead to the anamolous 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 Commit- tee as a-tribunal cannot depend on the findings that are ultimately recorded by it.

The misbehaviour of the Judge is 'deemed to be proved' according to Section 6(3) of the Act only when the motion is adopted by the Parliament and not otherwise. The finding of 'guilty' made by the Commit- tee 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 (supra) of the absence of any dispute or lis between two adversaries also negatives the contention that the Commit-

SMT. S. RAMASWAMI v. U;Q.J. (YEP.MA, J.] 169

tee is a tribunal for the purpose of Article 136. A 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 Article 136 of the Constitution. For this reason, no provision is made in the Jaw enacted under Article 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 Section 4 of the Act in the manner prescribed in the Rules.

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 Jaw enacted under Article 124(5) that area would not be left blank in the·provisions made in the Jaw while providing elaborately for submission of the report together, with its manner, including the number of copies, in Section 4 of the Act and Rule 9 framed thereunder. The absence of such a provision in this law is deliberate and not an inadvertent omission to emphasise absence of that requirement which also matches the contruction 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.

Keeping in view the aforesaid provisions of the Act and Rules and specially the fact that certain finding recorded by a member of the Com- F mittee is not required to be disclosed in tqe 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 ti.at the Committee is a tribunal under Article 136 of the Constitution. This contention of Shri Sibal is, therefore, rejected. G

No doubt, on a motion for presenting an address to the President praying for removal of the Judge being adopted in each House of Parlia- ment by the requisite majority in the manner prescribed, the misbehaviour or incapacity of the Judge is 'deemd to be proved' and the order of removal made by the President in accordance with Article 124(4) would H

170 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A 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.

On giving our anxious consideration to the submissions made by the learned counse~ 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 par- ticipation 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 tlle allegations permitted to be made only in the prescribed manner justify an inquiry into the conduct of the Judge.

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

SMT. S. RAMASWAMI v. U.OJ. [VERMA, J.] 171

Inquiry Committee in its report which matured into 'proved misbehaviour' A on adoption of the motion by Parliament suffers from an illegality render- ing it void resulting in the extinction of the condition precedent for com- mencement 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. B

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 C 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. D

We may, however, add that the intervention of the pl!l'liamentary 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 E this aspect was made also in Sub-Committee on Judicial Accountability, while dealing with the meaning and scope of clause (5) of Article 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 F under Article 124(4) which is not a part of the normal business of the House but is in the nature of special business. It covers the entire field relating to removal of a Judge. Rules made under Article 118 have no applica- tion in this field. G Article 124(5) has no comparison with Article 119. Articles 118 and 119 operate in the same field viz., normal business of the House. It was, therefore, necessary to spe oifically prescribe that the law made under Article 119 shall prevail over the rules of procedure made under H

172 SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.

A Article 118. Since Articles 118 and 124(5) operate in different fields a provision like that contained in Article 119 was not necessaryandeven in the absence of such a provision, a law made under Anicle 124(5) will override the rules made under Anicle 118 and shall be binding on both the Houses of Parliament. A violation of such law would B constitute illegality and could not be immune from judicial scrutiny under Article 122(1)."

(paras 95 aod 96 at p. 751)

(emphasis supplied) c At this stage, a reference to the nature aod 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 D P.irliament', the effect of Parliament's intervention is stated thus :

"..... There are many cases where .:iome admicistrative 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 E by the com t, under the doctrine of ultra vires, if it is not strictly in accordaoce with the Act. Whether the challenge is made before or after the Houses have given their approval is immaterial."

(at p. 29) F (emphasis supplied)

Later at p. 411, Wade has said that ~n accordance with constitutional principle, parliamentary approval does not affect the nonnal operation of judicial review'. At p. 870 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 aod approved, despite the ruling of the House of Lords that the test of unreasonableness

SMT. S. RAMASWAMI v. U.0.1. [VERMA, J.] 173

should not then operate in its normal way. The Court of A 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 com- petent to consider whether or not the Order was properly made in the sense of being intra vires'." B The clear indication, th~.refore, 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 C 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. D 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 wide powers of the Supreme Court of India. E Judicial review is the exercise of the cc,urts' 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 Article 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 President.

In Regina v. Boundary Commission for England, Ex parte Foot and Others, Regina v. Boundary Com111ission for England, Ex parte Gateshead Borough Council and Others [1983) 1 Q.B. 600, C.A., the Court of Appeal held that the judicial review by the High Court was permissible to consider H

174 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A whether the Boundary Commission had properly carried out the instruc- tions given by the Parliament in its report under the terms of the House of Commons. (Redistribution of. Seats) Act, 1979. The conclusion of the Court of Appeal at p. 635 on examining the merits was as under :-

"..... Parliament has thought it right tu set up inde- B pendent advisory bodies, the Boundary Commission, to advise it and, in so doing, it has given the commissions instructioos as to the criteria to be llttlployed in formulat- ing that advice. For good reasons, which we can well understand, Parliament has not asked the courts to advise c it and it has not provided for any right of appeal to the courts from the advice or proposed advice of the Bound- ary Commissions.

This does not mean that the courts have no part to play. They remain charged with the duty of helping to ensure that the instructions of Parliament are carried out. This is done by a procedure known as judicial review. Precisely what action, if any, should be taken by the Courts in any particular case depends upon the circumstances of that case including, in particular, the nature of the instructions which have been given by Parliament to the minister, authority of body concerned."

(emphasis supplied)

F On that conclusion, the Court of Appeal declined to interfere. The House of Lords dismissed the further appeal. Judicial review of the action of an independent advisory body set up by the Parliament to advise it is clearly indicated by this decision.

In Nottinghamshire County Council and Secretary of State for the G Environment, City of Bradfored Metropolitan Council and Secretary of State for the Environmen4 [1986] 1 A.C. 240, the House of Lords specified the limits of judicial review 'in a matter of public financial administration that had been one for the political judgment of the Secretary of State and the House of Commons' clearly indicating existence of the power of review in such matter wlii.le circumscribing limits thereof. We are at present con-

SMT.S.RAMASWAM!v. U.0.1. [VERMA,J.] 175

cerned only with existence of the power of judicial review in such matters and not the ~xtent of its limits.

This is also the indication from the decision of the Court of Appeal in Regina v. Her Majesty's Treasury, Ex parte Smedley, [1986) 1 Q.B. 657, CA., wherein the relevant passages are as under : B "...... It therefore behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so. Although it is not a matter for me, I would hope and expect that Parliament would be similarly sensitive to the need to refrain from c trespassing upon the province of the courts." (at p. 666)

"I have somewhat laboured these distinctions between the respective functions of Parliament and Her Majesty in Council in :he present case, for the purpose of D demonstrating the somewhat limited role which is allotted to Parliament by secticn 1(3) of the Act of 1972. This role is analogous to a power of veto. If it withholds its approval from the draft Order in Council, the Order cannot be made. If, however, the approval of Parliament is given, E Her Majesty in Council is left with a di.Scretfon whether or not to make the Order. There is no possible question of the court seeking or being able to control the exercise of the Parliamentary power of veto. However, I can see no reason why the exercise of the last mentioned discre- tion given to Her Majesty in Council should not be open F to attack in the courts by the process of judicial review, subject to the stringent restrictions on any such attack imposed by what has come to be known as the Wednesbury principle (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948) 1 K.B. 223, 229) ....... " G (at p. 672)

The contention that the remedy of judicial review would not be available to the learned Judge once the parliamentary part of the p•ocess of removal commences on a finding of guilty being made in the report of H

176 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A the Inquiry Committee, even when it leads to the making of an order of removal against him on account of the intervention of the parliamentary process, is, in our opinion, based on a misapprehension and is, therefore, not acceptable to us.

B We may briefly refer to the indication available of judicial review in similar situations in some other countries and also mention the two decisions in Halsted L. Ritter v. The United States, 84 C. Cls. 293 and Adam Clayton Powell v. John W. McCormack, 23 L. Ed. 2d. 491 : 395 US 486. Ritter was a Judge of the District Court in the United States who was impeached for his removal from office in 1936. The House of Repre- C sentatives of the United States adopted articles of impeachment against him which were duly presented to the Senate of the United States sitting as the High Court of Impeachment. Ritter filed a suit to recover his salary for the period in which the question arose of the Court's jurisdiction to review the conclusion of the United States Senate in a case of impeachment of a Judge. Ritter's suit was dismissed as the Court came to the conclusion that it had no authority to review the impeachment proceedings held in the Senate since 'the Senate was the sole tribunal that could take jurisdiction of the articles of impeachment presented to that body ..... and its decision is final'. Apart from the fact that the law in United States has undergone considerable. Change since Ritter's case, it appears to us that Ritter is clearly distinguishable since the process for removal of a Judge there was entirely political, no part of it being statutory, and Article I of the U.S. Constitution states that the House 'shall have sole power of impeachment' and that 'the Senate shall have the sole power to try all impeachments'. On the contrary, the contitutional scheme in India, as already indicated, is that the scheme is composite being a judicious ·blend of statutory and par- F liamentary components.

Adam Clayton Powell v. John W. McCormack, 23 L. Ed. 2d 491 is a decision rendered in 1969. It was held by the U.S. Supreme Court that the G House of Representatives has no power to exclude from its membership a person duly elected who meets the requirements specified in the Federal Constitution; and such a person on bein~ excluded fr 0m membership by a resolution of the House is entitled to a declaratory judgment that his exclusion was unlawful. It was held that the case was justiciable since the House of Representatives had no power to exclude from its membership H any person who was duly elected and who met the requirements specified

SMT. S. RAMASWAMI v. U.O.l. [VERMA, J.] 177

in the Constitution, there being a distinction between exclusion from A Congress and expulsion therefrom. It was held in Powell while dealing with the question of justiciability and the 'political question doctrine' relating to it, as under 1 ' :-

1 Respondents' first contention is that'this case presents '

a political question because under Art. I, S. 5, there has B been a "textually demonstrable constitutional commit- ment" to the House of the "adjudicatory power" to deter- mine Powell's qualifications. Thus it is argued that the House, and the House alone, has power to determine who is qualified to be a member. c In order to determine whether there has been a textual commitment to a co-ordinate department of the Govern- ment, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, S. 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review........ "

xxx xxx xxx

nln other words, whether there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department" of government and what is the scope of such commitment are questions we must resolve for the first time iu this case. For, as we pointed out in Baker v. Can-, Supra, "deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." G (paras 22 and 23 at pp. 515-517) (emphasis supplied)

Powell's case indicates availability of j~dicial review in certain situa- tions even where the entire process is within the House. H

178 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A Salleh Abas v. Abdul Hamid, 1988 L.R.C. 25 was a case relating to removal of a Supreme Court Judge in Malaysia. Article 125 of the Con- stitution of Malaysia is similar to Article 124 of the Constitution of India. Clauses (2), (3) and (4) of Article 125 of the Constitution of Malaysia provide that a Judge of the Supreme Court shall not be removed from office except in accordance with the provisions of the Article; clause (3) B provides for removal on the ground of misbehaviour or of inability, from infirmity of body or mind or any other cause, properly to discha'rge the a functions of. his office and prescribes the appointment of tribunal in accordance with clause (4) when such a situation arises; and then only is there removal of a J udgc from office on the recommendation of the C tribunal. Clause (4) therein prescribes the composition of the tribunal by appointment of the Judges specified. The question arose of jurisdiction of the Court to restrain the tribunal appointed under Article 125(3) from submitting its recommendations or report of the inquiry made by it in connection With the removal of a Judge of the Supreme Court of Malaysia. D The Supreme Court of Malaysia expressed its unanimous view as under :

"The function of the Tribunal appointed under Article 125(3) of the Constitution is to enquire and investigate on the representation and then report to the Yang di-Pertuan Agong with any recommendation it may make. The E Tribunal is a body which investigates and does not decide. It is perfonning a constitutional function. The Tribunal should not therefore be restrained from performing its constitutional function.

F Finally, the members of the Tribunal are appointees of the Yang di-Pertuan Agong. From the language of Article 125 it is clear the Yang di-Pertuan Agong is entitled to the report of the Tribunal. To restrain the Tribunal from submitting their report is in effect to rest.rain His Majesty from receiving the report." G (at p. 28)

(emphasis supplied)

Injunction was refused to restrain submission of the report by the H Tribunal constituted under Artide 125(3).

SMT. S. RAMASWAMI v. U.0.1. [VERMA, J.] 179

Raoul Berger, Impeachment : The Constitutional Problems (1973), A in Chapter III dealing with 'Judicial Review', states thus :

"..... If there be indeed a conflict between the judicial jurisdiction in 11 all cases11 and the Senate's "Sole power to try all impeachments," our course has been marked out by Chief Justice Marshall : "When two principles come in B conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent," a canon earlier cited by Elbridge Gerry in the First Congress. We need only read the power to "try" as a grant of jurisdiction to try a case in the first c instance, leaving untouched an appeal to the Supreme Court from action in excess of jurisdiction - a case !!arising under" the Constitution. ..... An accommodation of a "Triaf' by the Senate with an appeal from violation of constitutional boundaries would harmonize with the Powell holding that the Article I, S. 5(1) provision that D ''each House ·shall be the Judge of the ... qualifications of its own membe~s" does not bar inquiry into action in excess of jurisdiction. ...... " (at pp. 111-112) (emphasis supplied) E Discussing further 'judicial review' in the context of impeachment proceed- ings, Raoul Berger states at p. 116 that 'it was never intended that Congress should be the final judge of the boundaries of its own powers' and proceeds to say, thus - · F "To this it may be answered that just as the ultimate guarantee that the judiciary will not step out of bounds is the. self-restraint of the Court, so the Senate too must be . trusted to exercise self-restraint. It is one thing, however, to expect self-restraint of judges schooled to disciplined, dispassionate judgement, and not subject· to the gusts of G faction, and something else again to expect self-restraint ·of a body predominantly political in character and which both in England and the United States has been unable to shake off partisan .considerations when sitting in judg- ment. Self-restraint could be relied upon with respect to H ,

180 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A the judiciary because, in the words of Hamilton, they "have ·neither FORCE nor WILL, but merely judgment," and were "therefore the least dangerous to the political rights of the Constitution." .....

Constitutional limits, as Powell v. McCormack, again B reminds us, are subject to judicial enforcement; and I would urge that judicial review of impeachments is required to protect the other branches from Congress' arlJitrary will. It is hardly likely that the Framers, so devoted to "checks and balances," who so painstakingly piled one check of c Congress on another, would reject a crucial check at the nerve center of the separation of powers. They scarcely contemplated that their wise precautions must crumble when Congress dons its 'judicial" hat, that then Congress would be free to shake the other branches to their very founda- tions. Before we swallow such consequences, the intention of the Framers to insulate congressional transgressions of the "limits" they imposed upon impeachment should be proved, not casually assumed. The Constitution, said the Supreme Court, condemns "all arlJitrary exercise of power;" 'there is no place in our constitutional system for the exercise of arbitrary power." The ''sole power to try" affords no more exemption from that doctrine than does the sole power to legislate, which, it needs no citation, does not extend to arbitrary acts.

F Finally, if it be assumed that the "sole power to try'' conferred insulation from review, it must yield to the subsequent Fifth Amendment provision that "no person" shall "be deprived of life, liberty, or property without due process of law." If the Constitution does in fact place limits upon the power of impeachment, action beyond those limits is without 11 due process of law11 in its primal sense: "when the great barons of England wrung from King John ... the concession that neither their lives nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by 'law of the land' the ancient and customary laws of the English people." In our

SMT.S.RAMASWAMI v. U.0.1. [VERMA,J.] 181

system the place of the "ancient and customary laws" was taken by the Constitution; and Article VI, S. 2, expressly makes the Constitution "the supreme Jaw of the land." Injurious action not authorized by the Constitution is there- fore contrary to the "law of the land" ana is forbidden by the due process clause. "Due process" has been epitomized by the Court.as the "protection of the in- dividual against arbitrary action." One who enters govern- ment services does not cease to be a "person" within the Fifth Amendment; and an impeachment for offences out· side constitutional authorization would deny him the protection afforded by "due process." It would be passing c strange to conclude that a citizen mav invoke the judicial ''bulwark" against a twenty-dollar fine but not against an unconstitutional impeachment, removal from and perpetual disqualification to hold federal office. Here protection of the individual coincides with preservation of the separation of powers; and the interests of the assaulted branch, as Judge George Wythe perceived, are one with the interest of "the whole community." Those interests counsel us to give full scope of the "strong American bias in favor of a judicial detennination of constin1tional and legal issues," and to deny insulation from review of impeachments in defiance of constitutional bounds." (at pp. 118-121) (emphasis supplied)

American Bar Association Journal, Vol. 60 (June 1974) contains an interesting article "Is fadicial Review of Impeachment Coming'" by Daniel A. Rezneck, wherein judicial review in the case of an entirely political process has been discussed. An extract therefrom is as under :

Baker and Powell Opened the Door G If powell was entitled to judicial review of the legality of his exclusion from the House, it is difficult to see why a president may not seek judicial review in the event of his impeachment and conviction. Raoul Berger of HlU- vard, perhaps the country's leading authority on the law H

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A of impeachment, concluded in his 1973 book, Impeach- ment: The Constitutional Problems, that Baker v. Carr and Powell v. McCormack together open the way for judicial review of the impeachment process to assure that it con- forms to constitutional standards." (at p. 681)

B The effect of Powell is also considered in Texas Law Review, Vol. 68, Number 1, November 1989, at p. 97 under heading 'Judicial Review of Impeachments'. A useful extract therefrom is as under :

"The Supreme Court's decision in Powell v. McCormick c also indicates that there may be judicial review of any aspects of an impeachment procee_ding" In Powell, the Supreme Court held that whether the House of Repre- sentatives followed the proper procedure in excluding Adam Clayton Powell from taking his seat in the House was not a political question. The Powell Court also held D that although Congress has the dual powers to expel and to exclude its members, Congress is not empowered to apply expulsion standards in proceedings to exclude a representative.

E The lesson of Powe// is that the Supreme Court may use judicial review to determine whether Congress followed the proper procedure for making the political decision com- mitted to it by the Constitution. ...... Also, under Powell the federal courts may decide whether Congress has chosen the comet procedure to accomplish its asserted purposes. ..... " F (at pp. 99-100) (emphasis supplied)

In S.P. Gupta v. Union of India, [1981] Supp. SCC 87 Venkataramiah, G 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, 369 US 186 : 7 L. Ed. 2d 663 (1962) and Powell v. McCormack, 395 Us 486 : 23 L. Ed. 2d 491 (1969) as well as the opinion H of R. Berger and' then summarised the position in India as under :

SMT. S. RAMASW AMI v. U .0.1. [VERMA, J. J 183

n1n our country which is governed by a written Con· A stitution 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 Article 365(1) of the Constitution being political in character was B 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 thus : (SCC p. 661, para 149}

It will, therefore, be seen that merely because a ques- c tion 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 Constitu- tion has acted within the limits of its power or exceeded it, it can certainly he decided hy 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 govermnent 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 Con- stitution. 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 trans- gresses such limits. It is for this Coun to uphold the con- stitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. H

184 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A The objection that the questions involved in thse peti- tions 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, B national security which cannot be entertained by the Court. It is for the Court to detennine in each case whether a particular question should be debated before it or not." (paras 997 & 998 at pp. 776-777)

c (emphasis supplied)

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 quesiton doctrine', as dis- cussed 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.

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. Narirnan 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.

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 :

H ".... Without the active co-operation of justices of the

SMT.S.RAMASWAMiv. U.0.1. [VERMA,J.] 185

Supreme Court, the Constitution would be a dead letter. A 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 B our whole mighty fabric of government from rushing to destruction.

The Court has not been infallible. It has made mis- takes. It sometimes has run counter to the deliberate and c better judgment of the community. But the final judgement 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 adeqnate results of any branch of our government. It has averted many a D storm which was 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 E 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." (at pp. 114-115) F (emphasis supplied)

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 G come to be so understood and appreciated.

In this context, it is also useful to recall the observations of R.S. Pathak, C.J., spealcing for the Constitution Bench in Union of India and Another v. Raghubir Singh (Dead) by Lrs. etc., [1989] 2 SCC-754 about the nature and scope of judicial review in India. The learned Chief Justice stated thus:· H

186 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A 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. 11There was a time," ob- served Lord Reid, "When it was thought almost indecent B to suggest that Judges make law - they only declare it ..... 11 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 c Judicial law-making is limited ......

xxx xxx xxx

And ungoed Thomas J, in Cheney v. Conn referred to a Parliamentary statute as "the highest form of law .... D 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 dis- E tinctive functions, each a piilar 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 law. .. ... With this impressive expanse of judicial power, it is only right that the superior cowts in F India should be conscious of the enonnous 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 !s, by Article 141 of the Constitution, binding on all courts within the territory of India." (para 7 at pp. 765-766) G "....... 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 H that "the law is forever adopting new principles from life

SMT. S. RAMASWAMI 1•. U.0.1. [VERMA, J.] 187

at one end", and "sloughing off' old ones at the other. A 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, qr by experience-guided choice be- tween competing legal propositions, rather than by the B 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 c scrutiny and judicial choice-making which could well af- fect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves :l search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminancy such as 11 fairness!! or nreasonable- D ness", but also among propositions from outside the ruling law, corresponding to the empirical knowledge or ac- cepted values of present time and place, relevant to the dispensing of justice within the new parameters." E (paras 10 and 11 at pp. 766-767)

(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.

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 provision 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 has to be read the declaration made in Sub-Com- mittee on Judicial Accountability that 'a icw made under Article 124(5} will H

188 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A 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 & Ors., which was filed ealier 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.

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 E 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 decade 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 person 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 Sec- H

SMT. S. RAMASWAMI v. U.0.1. [VERMA, J.] 189

tion 3(2) of tbi: Act. If the Inquiry Committee at the conclusion of the investigation m-~de 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 an.d 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 D 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 l'lquiry Committee, is subject to judicial review as held in Sub-Committee on Judicial Accountability, 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.

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 H

190 SUPREME COURT REPORTS [1992] SUPP. I S.C.R.

A 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 o( '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. B On a careful reading of the earlier decision in Sub-Committee on Judicial Accountability, 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.

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 constituiional 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.

Brother Kasliwal expressly says in his separate opinion that he fully agrees with us. Brother K. Ramaswamy, however, appears to have differed in some area. On a reconsideration of the matter in the light of the exposition of law made by Brother K. Ramaswamy in his separate opinion circulated to u~. we find that to a large extent he agrees with us, but in the

SMT. S. RAMASWAMI v. U.0.1. [KASLIMAL,J.] 191

area of his disagreement, we regret our inability to concur with him. A

Consequently, for the aforesaid reasons, this Writ Petition is dis- posed of by declaring the law as contained in the judgment.

KASLIWAL, J. I have gone through the judgment prepared by my learned brothers Justice J.S. Verma and Justice K. Ramaswamy. I fully B agree with the judgment prepared by Justice J.S. Verma and regret my inability to agree with the view taken by Justice K. Ramaswamy. However, looking to the questions raised being of seminal importance, I would like to express my own views also in the matter. c The petition has been filed by the wife of Mr. Justice V. Ramaswami, a sitting Judge of this Court. I need not recapitulate the facts of this case which have already been stated in detail in the judgment prepared by my learned brothers. The short controversy raised in the petition now relates to an issue of a Writ of Mandamus directing the Committee apppointed under the Judges (Inquiry) Act, 1968 (hereinafter referred to as the 'Act') to forward a copy of the report as and when prepared, to Justice V. Ramaswami. It has been also prayed that a direction be also given to the Committee to withhold the forwarding of the report to the Hon'ble Speaker of the Lok Sabha simultaneously, so that Justice V. Ramaswami may get reasonable time to initiate appropriate proceedings, in the event he wishes to challenge all or any part of the said report.

The above relief has been sought mainly on two grounds:

(1) That a Constitution Bench of this Court in its judgment in F Sub-Committee on Judicial Accountability v. Union of India & Ors., [1991] 4 SCC 699 has already held that the proceedings before the Committee from its inception till the time the report of the Committee is placed before Parliament are deemed to be proceedings outside Parliament and this part being statutory can be subjected to judicial review. G (2) If a copy of the report is not given to Justice V. Ramaswami before such report is forwarded to the Hon'ble Speaker for the purpose of taking out appropriate proceedings, it would not only defeat the Constitu- tional right of Justice V. Ramaswami, but would also violate principles of natural justice. H

192 SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A It may be noted at the inception that the petitioner h<:s not chal- lenged. The Judges (Inquiry) Act, 1968 or the The Judges (Inquiry) Rules, 1969 (hereinafter referred to as the 'Rules') framed in exercise of the powers conferred by sub-section 4 of Section 7 of the Judges (Inquiry) Act,

1968. We have thus, to consider the scheme of the provisions of the Act and the Rules as well as the provisions of the Constitution, in order to B decide whether the relief sought by the petitioner can be given or not. Though, the Act deals with the procedure for the investigation and proof of misbehaviour or incapacity of a Judge, but in the present case we are only concerned with the investigation and proof of misbehaviour and not with the incapacity of the Judge to discharge his duties efficiently due to c any physical or mental incapacity. Section 3 of the Act provides for investigation into misbehaviour and for that purpose it is necessary that a notice for such motion has to be given by not less than hundred members of the House of the People in case of such notice given in the House of the People and not less than fifty members in the case of a notice given in the Council of States. The Speaker or the Chairman, as the case may be, 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. If such motion is admitted, then the motion shall be kept pending and a Committee consisting of the following three members shall be constituted for making investigation into the grounds on which the removal of a Judge is prayed. This Committee shall consist of the following three members of whom :-

(a) one shaJ: be chosen from among the Chief Justice and other Judges of the Supreme Court;

F (b) one shall be chosen from among the Chief Justice of the High Courts; and

(c) one shall be a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist. G The Committee under sub-section (3) of Section 3 is required to fran.c definite charges against the Judge on the basis of which the inves- ~ .. tigation is proposed to be held and under sub-section. (4) of Section 3, such charges together with a statement of the grounds on which each such charge is based shall be communicated to the Judge and he shall be given H a reasonable opportunity of presenting a written statement of defence