TMI Blog1992 (8) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... essary to state further facts herein and it would suffice to say that both these petitions are a sequel to the decision in Sub-Committee on Judicial Accountability v. Union of India and Ors. AIR1992SC320 - and were filed prior to Writ Petition No. 514 of 1992-Mrs. Sarojini Ramaswami v. Union of India and Ors.- which has been disposed of by us earlier today by a separate judgment pronounced therein giving all relevant facts. 2. Petitioner Raj Kanwar (in Writ Petition No. 140 of 1992) alleges that the notice of motion by 108 members of the Ninth Lok Sabha, its admission by the then Speaker of Lok Sabha and Constitution of the Inquiry Committee under Section 3(2) of the Judges (Inquiry) Act, 1968 are unconstitutional being violative of Article 124(4) of the Constitution. It is also asserted in that Writ Petition that the judgment in Sub-Committee on Judicial Accountability is violative of Article 145(3) of the Constitution and hence void ab initio. On this basis, the relief sought in Writ Petition No. 140 of 1992 is as under: (a) issue appropriate writ, order or direction quashing (1) the notice of motion for presentation of an address to the President for the removal of Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peaker under Section 4(2) of the Judges (Inquiry) Act, 1968 to enable the learned Judge to seek judicial review of the finding of 'guilty', if any, against him made in the report of the Committee. We have disposed of that writ petition by a separate judgment pronounced earlier today. We are, therefore, confining the decision of these petitions only to the points raised herein which survive for decision. 5. We had concluded the hearing of these writ petitions before the hearing was commenced in Writ Petition No. 514 of 1992, but at the request of Shri Kapil Sibal, senior counsel appearing for the petitioner in Writ Petition No. 149 as well as in Writ Petition No. 514, we deferred the decision in these writ petitions till now. In Writ Petition No. 149, we have heard Shri Kapil Sibal for the petitioner, the Attorney General of India for the Union of India and Shri F.S. Nariman for the Inquiry Committee. In addition, we have also heard Shri Shanti Bhushan and Shri Jitendra Sharma who represented the interveners viz. Sub-committee on Judicial Accountability and Supreme Court Bar Association. Raj Kanwar, petitioner in Writ Petition No. 140 of 1992 was directed to file the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Shri Sibal. On 7.5.1992, Shri Sibal informed us that the petitioner does not want to implead Mr. Justice V. Ramaswami as a party and that he had decided to pursue the writ petition as framed in its present form. In the other writ petition (W.P. No. 140) also, Mr. Justice V. Ramaswami is not a party and the petitioner's stand is the same; and, therefore, the question of maintainability of these writ petitions for the reliefs claimed herein in the absence of the Mr. Justice V. Ramaswami as party is common to both of them. These matters were, therefore, heard on the question of maintainability indicating that in case these petitions are held to be maintainable for the reliefs claimed herein in the absence of Mr. Justice V. Ramaswami as a party, then the matters may be heard further on merits. 8. We have reached the conclusion that both these petitions must be dismissed on this preliminary ground and, therefore, the question of hearing these petitions further does not arise. 9. In view of the fact that the petitioners in both these writ petitions have persisted in pursuing the writ petitions without impleading Mr. Justice V. Ramaswami as a party, in spite of ample opport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 124(5) are bound to arise only in the context of a holder of the high office of a Judge of the Supreme Court or a High Court and at a time when he faces proceedings for his removal so that the decision thereon is bound to affect the interest of the concerned Judge. If the occasion for requiring a judicial adjudication arises in this context at a time when a particular Judge is facing proceedings for his removal from office as in the present case, the reason advanced by learned Counsel for not even impleading him as a party in the petition appears to be tenuous. Anyone facing such a proceeding and wanting to challenge it has to do it himself. It is not possible to predict the outcome of the decision on merits of the points raised in these petitions and, therefore, the likelihood of a conclusion adverse to the interest of the learned Judge being a possibility, an effective adjudication of the same in his absence is not feasible which alone is a sufficient reason to decline consideration of the points raised in the petitions in these circumstances. We may mention that the learned Judge was a party in the earlier proceedings -Sub-Committee on Judicial Accountability v. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st seek the relief himself unless disabled from doing so for a good reason which permits someone else to seek the relief on his behalf. In that situation also the claim is made in substance by the person affected even though the form be different and it is so stated expressly. The only reason given for the learned Judge not doing so, by Shri Sibal, has been considered by us earlier and not found sufficient to support his submission. We may also mention that in a similar situation Mr. Justice Murphy of the High Court of Australia, the apex court of that country, while facing proceedings for his removal from office, had brought an action for injunction to restrain the proceedings against him in his own name. The judgment of the High Court of Australia in that matter is Murphy v. Lush and Ors. [1986] 65 ALR 651. That case is referred only to indicate that the grievance in a similar situation was made by the concerned Judge of the apex court himself and not by someone else even without impleading him. We may also add the subsequently in Writ Petition No. 514 of 1992, the petition was filed by the wife of the learned Judge wherein the learned Judge gave a writing to the effect that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tulay in the petition under Article 32 had the effect of conferring jurisdiction on a Court contrary to the specific statutory provision; and the error in the earlier judgment to this effect was considered to be sufficient for Antulay himself to challenge that decision by an independent writ petition instead of a review petition. Moreover, judgment of Mishra, J. as well as that of Mukharji, J. as their Lordships were then, give a clear indication that the decision therein was not intended to be a precedent and was confined to the peculiar facts and circumstances of that case. This distinction is sufficient to hold that Antulay does not permit these petitioners to claim reconsideration of the earlier decision in these circumstances. 17. Shri Sibal contended that the petitioners not being a party to the earlier decision in Sub-Committee on Judicial Accountability, the remedy of review of that decision is not available to them. In our opinion, this argument instead of supporting their claim for seeking reconsideration of the judgment, actually negatives it. If they are not entitled to seek review, as they were not parties in the earlier proceeding in which the judgment was rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the decision in S.P. Gupta v. Union of India [1982]2SCR365 , wherein this aspect was considered at length. In his petition as well as in written submissions all that he said was to seek relief on merits on the points raised which are concluded by the earlier Constitution Bench decision without even showing as to how he is entitled to make the claim. Later he added that the absence of the Judge is immaterial and the points be decided without any relief being granted to anyone. 21. The basis of the right claimed by the petitioner, Raj Kanwar, has to be found in some principle to amount to the right of the kind he claims. There is no special injury to him alleged and, therefore, the right he claims is no better than that available to every other advocate in the country. If the mere membership of the Bar can provide the foundation for the right which Raj Kanwar asserts to maintain a separate petition then on principle every advocate in the country would be entitled to file a separate petition, and as he claims also entitled to be heard orally even though it may only be at best repetition of the same arguments which Shri Kapil Sibal, Senior Advocate advanced at length. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the High Court challenging an unconstitutional or illegal action of the Government or any other constitutional authority prejudicially affecting the administration of justice and in such writ petition he may claim relief not for himself personally but for those who are the direct victims of such unconstitutional or illegal action, because granting such relief to them would repair the injury caused to administration of justice. But the persons for whom the relief is sought must be ready to accept it; they must appear and make it known that they are claiming such relief; it cannot be thrust upon them unless they wish it. XXX XXX XXX XXX XXX XXX The Court does not decide issues in the abstract. It undertakes determination of a controversy provided it is necessary in order to give relief to a party and if no relief can be given because none is sought, the Court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. The Court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot deciding any question, much less a constitutional one, unless it is necessary to do so, we would prefer to reserve our opinion on the remaining questions for the occasion, if any, in the future when they arise for decision. 27. For the aforesaid reasons, both these writ petitions fail and are dismissed on the above preliminary grounds without going into the points raised on merits herein which do not arise for consideration at the instance of the petitioners at this stage on the conclusion we have reached. In view of our conclusion to dismiss these writ petitions, it is unnecessary to decide the pending I.As., including those for impleadment, which are accordingly disposed of. No costs. K. Ramaswamy, J. 28. I have had the benefit of reading the draft judgment proposed by my learned brother Verma, J. With all due regards and personal respect to my learned and esteemed brethren, it is my misfortune for my inability to tread their path. Therefore, I have chosen to plough my lone farrow, since the matter is of great significance and the questions to be decided bear wider significance. 29. The short sift of the facts pertinent to the points posed are that on February 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibal, formulated the following five questions, and having regard to the importance of those questions raised, referred the matter to the Constitution Bench. (1) Sub-section (1) of the Judges (Inquiry) Act, 1968, mandates that the Speaker of the House of People shall either admit or refuse to admit a motion for presenting an address to the President of India for the removal of a Judge of the Supreme Court of India only 'after' considering such materials, if any, as may be available to him and failure to comply with the said sine-qua-non, viz. consideration of available material before admitting the motion, vitiates his decision for non-application of mind. In the present case since the then Speaker, respondent No. 3 is not shown to have applied his mind to the available material before admitting the motion, his decision to admit the motion and constitute the Committee comprising respondents Nos. 4, 5 and 6 is unsustainable in law. (2) Sub-section (2) of Section 3 of the Judges (Inquiry) Act, 1968, invests the Speaker with the power to constitute a Committee for the purpose of making an investigation into the grounds on which the removal of the Judge is sought, but such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged their respective pleadings and placed evidence on record. We have had the benefit of the arguments of all the learned Counsel and also requested them to give exhaustively written arguments on all points raised in the matter. Accordingly they have done. I have given my anxious consideration to all the contentions and the materials placed in support thereof. 32. The substratum of the petitioner's pleas and ably argued by his learned Senior counsel, Sri Kapil Sibal are that Sri Rabi Roy, the Hon'ble Speaker of the 9th Lok Sabha, the third respondent herein, did not have with him all the material matrix before admitting the motion of remove the Judge, nor applied his mind to the material to find prima facie case, which is a condition precedent under the Act and the Rules, to be consistent with Article 124 of the Constitution of India. He should have conducted preliminary enquiry in that behalf. The record does not bear out any reason. Non-application of the mind or bereft of reasons smacked the exercise of jurisdiction by the Speaker to admit the motion and at any rate it is illegal. This Court on the earlier occasion did not have the advantage of the record now availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess impinging upon Article 21 as an unfair procedure. The Committee itself cross-examined the witnesses that answered favourably to the Judge. On the basis of the material placed before the court, he argued that the evidence does not establish any of the charges levelled against the learned Judge. His conduct to attract Article 124(4) of the Constitution and the Act as misbehaviour impinging upon the integrity of the learned Judge must be grave but not the trivial administrative lapses to initiate proceedings for removal or an enquiry thereon. Diverse circumstances available before the committee would not establish any misbehaviour by the learned Judge. Sri Altemesh Rein, Advocate-intervener, contended that the alleged misbehaviour was committed while discharging his duties as Chief Justice of Punjab and Haryana High Court; as per Article 217(1)(C), on his elevation to this Court, they ceased to be of any relevance for an investigation under Article 124(5); the Act and the Rules, the action does not touch upon his misbehaviour as a Judge of this Court which alone is germane. So the motion for removal and consequent enquiry are devoid of jurisdiction and authority of law. 33. Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the declaration of law in this behalf by this Court for which the learned Judge is neither a necessary, nor a proper party. Even otherwise in his absence also the declaration would be given which binds him. No third party other than the learned Judge and the Advocate appointed under Section 3(9) of the Act has a right to participate or adduce evidence during the investigation and enquiry done by the committee. The decision in SCJA case requires reconsideration. Even otherwise the declaratory reliefs of public law could be made by this Court. 34. Sri Nariman, the learned Senior Counsel appearing for the Committee with equal ability fairly contended that the petitioner has neither locus standi nor the writ petition maintainable to review the earlier decision. The motion for removal of the learned Judge is a political process. Though the Speaker is a statutory authority, he does not act like a judicial or administrative authority to record reasons before admitting the motion. He is a constitutional functionary of high authority. The fact that he admitted the motion does indicate that he had applied his mind and found prima facie grounds to admit the motion for removal of the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs or claim for reasonable opportunity. Since the learned Judge opted to remain ex parte, the petitioner cannot challenge the proceedings since any adverse findings given by this Court would not bind the Judge as he is not eo nominee party to the writ petition. He also further contended that neither the decision in SCJA case is open to be reviewed nor the petitioner has locus to do so. Sri Jitendra Sharma, Secretary of the Supreme Court Bar Association adopted the contentions of Sri Nariman. Sri Shanti Bhushan, the learned Senior counsel for SCJA, while supporting Sri Nariman, further argued with usual vehemence that they are bona fide interested to uphold the dignity of the court and the efficacy of the rule of law; they are also interested that the learned Judge should come out unscathed at the earliest; their locus was upheld by this Court, and they are interested to bring on record the true and correct facts. The permission granted by the Committee is not illegal. The members of the Parliament having moved the motion are interested to prove the allegations. 35. The main question that needs adjudication is whether the petitioner has locus to maintain the writ petition. Indisp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by way of another writ petition on any ground whatever. In N.S. Mirajkar v. State of Maharashtra nine Judges Bench held that the judicial order is not liable to be questioned in a writ petition. The same view was reiterated by another Seven Judges' Bench in A.R. Antulay v. N.S. Naik [1988] 1 Suppl. SCR 1. It would thus be held that the correctness of the judgment of this Court in SCJA's case is not amenable to the writ jurisdiction. 37. Sri Kapil Sibal, therefore, contends that the petitioner is not assailing the correctness of that judgment but he is placing another facet touching the jurisdiction of the Speaker, in admitting the motion and constituting the committee under the Act to conduct the enquiry, on the basis of fresh material which was not available to this Court when SCJA's case was decided. It is settled law that it is the decision and not the reasons in support thereof that would be conclusive and binds all parties. Therefore, even if there is any additional material that was subsequently discovered, it would be of little avail to assail the correctness of the judgment except by way of review before the Bench the decided SCJA's case. 38. The Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141 binding on all courts within the territory of India, and so, it must be constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by the court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the cleanliness of the public administration of justice which is of paramount importance. Public justice is the hall mark of public good. A person genuinely or bona fide interested in seeking declaration of law of public importance would always get sufficient interest and be entitled to seek declaration on that behalf which binds not only the State but every person, even if affected thereby, though not eo nominee a party respondent to the proceedings. A relief in favour of that person in his absence could in an appropriate case also be granted. In Makhanlal Waza and Ors. v. State of Jammu and Kashmir [1971] 1 SCR 749 the Constitution Bench held that the law declared by this Court was binding on the State and its officers and they are bound to follow it whether majority of the respondents were parties or not to the previous petition. In S.P. Gupta's case this Court having regard to the magnitude and importance of the constitutional questions involved in the cases accorded locus to the Advocates. In B. Prabhakara Rao and Ors. v. State of A.P. [1985] Suppl. SCR 432 this Court held that the relief claimed is of a general nature and against the state and so the failure to implea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es convulsions on judiciary and generate psychological set back on ongoing process, the Speaker was authorised to wisely exercise discretionary power by consulting such persons, if any, as he may have chosen and thinks fit to be consulted. Before admitting the motion, it may be expected and may be prudent that the Speaker may consult persons like the Chief Justice of India, the fountain head of judiciary, and the Attorney General of India, the Principal Advisor of the Govt., whose duty should be to give advice upon legal matters or to perform such duties of legal character. If the Speaker consults, Chief Justice of India he would help him by proper advice, and the Attorney General is under the constitutional duty to tender advice and to assist the Hon'ble Speaker to discharge the constitutional function , i.e. to decide in admitting or refusing to admit the motion to remove the judge of the constitutional judiciary. It is also equally salutary that before admitting the motion to remove the Judge, there shall exist factual foundation. The grounds mentioned in the motion, the material or evidence placed in support thereof and the advice tendered, if consulted, would form the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these organs which implies that each organ would maintain a delicate balance with self-imposed restrictions for smooth functioning of the parliamentary democracy to establish an egalitarian social order under rule of law. Judicial review thus is an incident of and flows form the Constitution to securing and protecting the welfare of the people as effectively as it may, according justice-social, economic and political in all the institutions of national life. Court is the living voice of the Constitution which stands against any winds that blow as a heaven of refuge to those who might otherwise suffer due to their helplessness, inability, non-conformity, handicaps, exploitation, victims of prejudice or public excitement etc. The paramount duty of the court is to protect their rights and translate the glorious and dynamic contents of the Directive Principles and the fundamental rights as a living law, making them meaningful to all manner of people. 46. In this light the question emerges whether the decision of the Speaker to admit the motion to remove the judge moved by requisite number of members of the House of the People is amenable to judicial review. Undoubtedly, in a parli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the collective wisdom of the House before admitting or refusing to admit the motion. The Act exclusively confers on the Speaker the power, to his/her individual discretion, to take a decision in this behalf. The further contention that the Speaker is constitutionally obligated to conduct a preliminary enquiry to ascertain the veracity of the grounds made in the motion and to determine whether or not prima facie case for investigation has been made out is devoid of substance. As seen earlier, he merely performs, though as a statutory authority, a constitutional function to admit or refuse to admit the motion to remove the Judge. The Constitution entrusted to the Speaker that responsibility with the expectation that he acts as a reasonable man, as stated earlier, with high degree of responsibility, considers the grounds for the removal in the motion and the record before taking a decision to admit the motion or refusal thereof. The further allegation that the Speaker acted at the behest of the Janata Dal and Bhartiya Janta Party and that the admission of the motion coloured by political motivation is not based on any acceptable factual foundation and is personal to the Judge. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee respectively, a notification, as directed to be issued in this behalf in SCJA's case, is necessary. In this situation, the latter contention lost its luster. That apart the admission of the motion was already upheld by this Court. 49. The next question is the validity and legality of the procedure adopted by the Committee to investigator into the alleged misbehaviour. To appreciate that question in its proper perspective and to cull out its effect, it is necessary to note the pertinent provisions of the Constitution, the Act and the Rules. The foundation to remove a Judge under Article 124(4) through political process, is the proved misbehaviour or incapacity . Article 124(5) envisages to regulate the procedure by law for the presentation of the address and investigation and proof of the misbehaviour or incapacity. Section 4(1) provides the procedure thus: Subject to any rules that may be made in this behalf, the Committee shall have power to regulate its own procedure in making the investigation.... 50. The Rules expressly do not provide any specific procedure in this behalf. Two members of the Parliament, viz. Sri George Fernandez from Janata Dal and Sri J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve to themselves the role of the prosecutor but assigned it to the Advocate appointed under Section 3(9) and referred to the Speaker to set up the committee to investigate into the misbehaviour since the constitution had already preserved their right to participate in the address to the President on the floor of each House of the Parliament to discuss the conduct of the Judge. Their statutory obligation under Section 3(1) was to state the grounds to move the motion praying for removal of the Judge with requisite majority; and to lay the evidence before the Speaker/Chairman. Their right to participation would revive only when the report and the evidence with finding/findings that the misbehaviour or incapacity has been proved was laid on the floor of the House and discussion was initiated under Article 124(4) and the Rules. 51. This statutory and constitutional setting and larger public interest furnishes unerring source to conclude that no third party has right to barge or butt in the proceedings and that non be permitted to participate in the investigation nor entitled to adduce evidence for or against the Judge. It is the Judge and the Advocate alone to participate and prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Committee feels that the source is highly doubtful, undependable, etc. it may be open to the Committee to refrain from framing charge/charges. It is, thus, clear that the Act left wide discretion to the Committee to device its own procedure and adopt its own function during the investigating to discover and collect the evidence. This perspective leads us to conclude that the permission granted to M/s. George Fernandoz and Jaswant Singh and SCJA is illegal and without authority of law and jurisdiction. Any adverse evidence against the learned Judge placed or adduced by them which was not already part of the record of the Speaker, should be expunged, should not be considered and be excluded from the record of evidence to the Committee. 53. Equally, the contention that the procedure envisaged in Section 3(3), (4) and Section 4 are unconstitutional and ultra vires of the Article 124(4) of the Constitution is misconceived. Article 124(4) of the Constitution postulates that the Judge of the Supreme Court/High Court shall not be removed from his office except by an order of the President passed after an address by each House of the Parliament supported by a majority of the total me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service as per Rule 3, the Committee may proceed with the enquiry ex parte. Under Section 3(9) the Central Govt. may appoint at the request of the Speaker/Chairman an Advocate to conduct the case against the Judge. Rule 11(1) gives the Judge the right to consult and be defended by an Advocate of his choice line in Article 22(1) of the Constitution. Section 5 gives the committee all the powers of the Civil Court while trying a suit under the CPC, 1908, to summon the witnesses required, discovery and production of the documents, to receive evidence on oath, issue commissions for the examination of witnesses or documents or such other matters as may be prescribed. The advocate obviously should examine witnesses under Section 4(l) to prove the case against the Judge with an opportunity to the latter to cross-examine those witnesses; and adduction of his own evidence in rebuttal and an opportunity of hearing in his defence. Under Section 4(2) read with Rule 9, at the conclusion of the investigation, the committee should submit to the Speaker a report with its findings on each charge separately if there are more than one with such observations on the whole case as it thinks fit. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w inquisitorial procedure as an initial step and thereafter to have adversarial enquiry. The power of the Committee to summon the record is to supplement the material placed before the Speaker/Chairman by original record or other necessary evidence/witness but not to supplant any new material unrelatable to the grounds in motion or charges framed. The witnesses summoned or examined on commission are to prove as a fact the charges made against the Judge. The investigative power granted to the administrative agencies normally is inquisitorial in nature but the Act devised a special media or modus keeping the judicial independence beyond the ken of coloured visions and entrusted the power of investigation only to High Power Judicial Committee consisting of a sitting Judge of the Supreme Court, a sitting Chief Justice of a High Court and a distinguished Jurist, in one word a high Judicial authority . The proceedings before the Committee is neither civil nor criminal but sui generis. 56. The appointment of the advocate at the behest of the Speaker/Chairman was to prove the charged misbehaviour incapacity against the Judge. He presumptively acts on behalf of the speaker like a couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree of belief concerning a fact in the mind of the trier of fact or the court.... Proof is the result or effect of evidence, while evidence is the medium or means by which a fact is proved or disproved, but the words proof and evidence may be used interchangeably. Proof is the perfection of evidence; for without evidence there is no proof, although there may be evidence which does not amount to proof; for example, if a man is found murdered at a spot where another has been seen walking but a short time before, this fact will be evidence to show that the latter was the murderer, but, standing alone, will be very far from proof of it. 61. The Committee as Judicial authority adopts the procedure of a trial of a civil suit under the CPC; It is not inquisitorial but adversary to search for the truth or falsity of the charge/charges by taking evidence during the investigation like a trial of a civil suit and it should be the duty of the Advocate and the Learned Judge, or his counsel to prove/disprove if burden of proof rests on the Judge, as a fact by adduction of evidence or the affirmation or negation or disproof of the imputation under investigation. The word 'investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion, under Article 121 on the floor of Parliament. Therefore, no-one is entitled even to act as plain clothes spy to pry into his/their conduct to set rumours afloat. If it would be otherwise, the disgruntled would concoct stories, crow into the ears and pass on as palpably palatable truth either to deter or demoralise an upright, indomitable and unamenable Judge. When definite material or evidence was placed before the Speaker of the House of the People or Chairman of the Rajya Sabha, the Speaker/Chairman, on due satisfaction as stated hereinbefore, that the ground/grounds needs investigation, would admit the motion and transmit the record to the Committee i.e. high Judicial authority for investigation into the alleged misbehaviour. The investigation contemplated in Article 124(4) of the Constitution or investigation or inquiry envisaged in the Act are synonymous and interchangeable, as has rightly been contended by Sri Nariman. 63. The behavioural discipline of a Judge is an integral component of judicial independence. Admission of the motion is a statutory function. Investigation into misbehaviour or incapacity of the Judge though integral part of composite scheme to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a motion for removal of the Judge in his/her misbehaviour of incapacity. For the efficacy of the judicial adjudication and peoples faith in the rule of law, people must have absolute faith and confidence in the honesty, integrity, impartiality, courage, and independence, of the Judge. So, upright and resolute conduct of the presiding Judges of the Court is imperative. If that faith and confidence is in any way shaken or shattered, the legitimacy of the very system of Govt. is tainted and the consequences will be disasterous. So long as one holds the judicial office, the above conduct remains germane and relevant. Any imputation of misbehaviour through a valid motion admitted by the Speaker needs investigation. The elevation of a High Court Judge to the Supreme Court is only an elongation of the judicial functions in the apex court with the same judicial fervour. From this perspective, the alleged misbehaviour of the learned Judge, if proved, would remain germane, even while the learned Judge is a Judge of this Court. It would thus not be difficult to discount the contention of the learned Advocate as of no substance. 65. The meaning of the word 'misbehaviour' in Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Executive Authority and the citizen or the States inter se. or the center and the State. When the right of a citizen is attacked from any quarter or his claim is denied or is wrong, the judiciary alone should punish the wrong doer or restore the violated right or redress the legal injury. Stronger weapon in the armoury of judiciary is the confidence it commands and faith it inspires and generates in the public in its capacity to do even handed justice and keep the scales in balance in any dispute. The judiciary is thus the custodian and guardian of the rights of the citizen. It should, therefore, be independent, impartial an incorruptible. He/She should have the courage, uprightness and conviction to do his/her duty in terms of the oath. 67. It could be pondered over in tune with constitutional philosophy. Judicial review is the touchstone and repository of the supreme law of the land. Rule of law as basic feature permeates the entire constitutional structure. Independence of the judiciary is sine quo non for the efficacy of the rule of law. This Court is the final arbiter of the interpretation of the Constitution and the law. It has to maintain the delicate balancing wheel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' as ill conduct, improper or unlawful behaviour . 'Misconduct' was defined at p. 999 as A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour; its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, of-fence, but not negligence or carelessness. 'Misconduct in office' was defined as Any unlawful behaviour by a public office in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. 71. In Encyclopedic Law Dictionary, 3rd Edition, at p. 720 'misbehaviour' was defined as improper or unlawful conduct, generally applied to a breach of duty or propriety by an officer, witness, etc. not amounting to a crime. P. Ramanathan Aiyar's 'The Law Lexicon, Reprint Edition, 1987 defines 'misbehaviour' at p. 820 as ill conduct; improper or unlawful behaviour. 'Misconduct' was defined at p. 821 as the term misconduct impli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his legal setting would furnish the foundation to focus the question whether the learned Judge had committed financial improprieties or irregularities undermining the above standards in his administrative disposition and whether the same would constitute misbehaviour is to be angulated the findings given from the proven evidence by the Committee. Such finding of proved misbehaviour would undoubtedly be subject to requisite majority voting and when voted would become deemed proof under Section 6(3) for removal under Article 124(4). Then alone can the finding of proved misbehaviour be deemed accepted and would become final. If the motion is voted down, by necessary implication, the finding of the committee stands disproved and rejected. 73. We are alive to the fact that declaration of law would be laid only to apply it to the facts of the case on hand for or not granting the relief. The facts of the case presented an extra-ordinary scenario. The Constitution or the Act did not define 'misbehaviour'. Several International forums for judicial independence suggested to define misbehaviour but to no avail. No legislature in any democratic country attempted to do so as it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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