TMI Blog1992 (8) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... sis 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 it cannot be visualized that every Advocate as an individual can claim such a right in public interest, it cannot be doubted that the claim made by petitioner, Raj Kanwar to this effect and his insistence on being orally heard when he had nothing additional to contribute, as is evident from his petition and the written arguments, is clearly misconceived. It is necessary that this tendency is curbed in public interest to avoid wastage of courts' time and abuse of its process. Appeal dismissed. - W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being void ab initio. 3. In Writ Petition No. 149 of 1992, the petitioner M. Krishna Swami claims sufficient interest to file the writ petition as a member of the Tenth Lok Sabha and as an advocate of Madras known to Mr. Justice V. Ramaswami for long. In this petition, it is alleged that certain illegalities in the procedure adopted by the Inquiry Committee prejudicial to Mr. Justice V. Ramaswami have rendered the inquiry invalid. On the basis of the illegalities in procedure, alleged in the petition, the relief sought is for quashing the proceedings of the Committee as invalid. This is the alternative prayer in the petition while the primary relief claimed in the petition is substantially the same as in the other petition to quash the notice of motion admitted by the Speaker of the Ninth Lok Sabha and the charges framed by the Committee against Mr. Justice V. Ramaswami. Another prayer made to hold that the Inquiry Committee is disqualified to conduct the inquiry was given up at the hearing by Shri Sibal accepting the position that the allegation of bias against the Committee could be examined only at the instance of Mr. Justice V. Ramaswami who is not even a party in either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions since his case is the same which was urged by Shri Kapil Sibal as one of his contentions and to some extent advanced also by the Attorney General of India. The constraint of time because of which the hearing in these matters was required to be concluded early impelled us to adopt this course, particularly on account of the fact that Writ Petition No. 140 of 1992 was tagged on to Writ Petition No. 149 to be heard along with Writ Petition No. 149 of 1992 which was treated as the main matter by order dated 23-3-1992. 6. It may now be mentioned that Writ Petition No. 149 of 1992 came up for hearing first before a Division Bench of three learned Judges which by its order dated 27-2-1992 on hearing Shri Kapil Sibal for the petitioner mentioned his contentions and directed as under ((1992) 2 JT (SC) 63 para 2) :- Having regard to the importance of the questions raised in the petition, we direct the Registry to place the papers before the learned Chief Justice of India for constituting a Constitution Bench to hear this petition. These contentions were mainly for reconsideration of the earlier Constitution Bench decision in Sub-Committee on Judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter till its conclusion, there is now no question of giving any further opportunity to the petitioners for this purpose. Shri Sibal took the definite stand on instructions of the petitioner that Mr. Justice V. Ramaswami would not be impleaded as a party in the writ petition and that the Court itself may give him notice if it so desires. We do not find any reason why the Court should suo motu issue notice to Mr. Justice V. Ramaswami when the petitioner persisted in not impleading him even though the reliefs claimed are for the benefit of the learned Judge alone. Even otherwise we do not consider it appropriate to examine any of the questions raised in these petitions at the instance of these petitioners in view of our decision in Writ Petition No. 514 of 1992 (reported in 1992 AIR SCW 2683), the learned Judge himself having not chosen to do so. 10. There can be no doubt and it is rightly not disputed that the decision on merits of the points raised in these writ petitions, assuming they could be considered and decided on merits in these circumstances, would directly affect the interest of Mr. Justice V. Ramaswami in the proceedings for his removal from office which he is fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shri Sibal submitted that the, order dated 27-2-1992 by a Division Bench directing that the papers be placed before the learned Chief Justice of India for constituting a Constitution Bench to hear this petition after mentioning the contentions of Shri Sibal requires that we must decide those contentions on merits and we cannot dispose of the writ petition on this preliminary point without going into the merits of those contentions. Without expressly saying so, the suggestion of Shri Sibal is that we have no option in the matter in view of the aforesaid order dated 27-2-1992 by a Division Bench except to decide these contentions on merits. We may here mention that the contentions of Shri Sibal mentioned in the order dated 27-2-1992 are mainly for reconsideration of the decision in Sub-Committee on Judicial Accountability and amount to reagitating the very same points which were considered and rejected by majority in the earlier Constitution Bench decision. Apart from the question whether reconsideration of that decision can be sought in this manner, we have no doubt that the order dated 27-2-1992 made by the Division Bench could not bind even that Bench much less a larger Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that the writ petition was in substance for and on his behalf with the decision in which he would be bound. There is nothing on record in these petitions to indicate a similar stand by the learned Judge: Moreover, if the subsequent writ petition for his benefit is filed by his wife in this manner, there is no reason why the learned Judge would not adopt the same method to raise the points involved in these petitions, if he was so advised. 16. The plea for reconsideration of the earlier judgment in Sub-Committee on Judicial Accountability (1991 AIR SCW 3049) at the instance of the present petitioners is made placing strong reliance on A. R. Antulay v. R. S. Nayak, (1988) 2 SCC 602 : (AIR 1988 SC 1531). In our opinion, the decision in Antulay is of no assistance to the petitioner in the present case. In the first place, it is not the learned Judge Mr. Justice v. Ramaswami who has asked for reconsideration of that decision, assuming he could do so by a petition under Art.32 of the Constitution instead of by a review petition, since Mr. Justice V. Ramaswami was a party in that matter. On the other hand, it was Antulay himself who had challenged by a petition under Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and the person directly affected remains the same learned Judge who was a party then but not now, these petitioners cannot have the right which they seek to assert when the context remains the same. Moreover, we deem it inappropriate to consider these questions at their instance in these circumstances. 18. The written submissions of petitioner Raj Kanwar are in substance no addition to the points urged by Shri Sibal and, therefore, do not require any separate consideration. We might, however, mention that petitioner Raj Kanwar persisted in claiming to be also heard orally in addition, which we refused for the given. We must add that the petitioner Raj Kanwar appears to be a busy body who has filed the petition for no ostensible public purpose. He has described himself as an advocate practising in the District of Karnal without indicating the reason for his persistence in repeating the same challenge in his individual capacity when Shri Kapil Sibal, Senior Advocate has argued at length the point he raises, on behalf of a Member of Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled 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 it cannot be visualized that every Advocate as an individual can claim such a right in public interest, it cannot be doubted that the claim made by petitioner, Raj Kanwar to this effect and his insistence on being orally heard when he had nothing additional to contribute, as is evident from his petition and the written arguments, is clearly misconceived. It is necessary that this tendency is curbed in public interest to avoid wastage of courts' time and abuse of its process. 22. It is beneficial in this context to reproduce certain portions from the decision in S. P. Gupta (AIR 1982 SC 149). The opinion of Bhagwati, J. as he then was, on this aspect reflects the opinion of the Bench and he stated as under: But we must be careful to see that the member of the public, who approaches the. Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a theoretical exercise merely or 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 misuse or abuse of power. The Court cannot take upon itself the role of a commission of inquiry - a knight errant roaming at will with a view to destroying evil wherever it is found. (Para 57, pp. 264-265) (of (Supp) SCC : (Para 56, at pp. 226-227 of AIR) 23. Venkataramiah, J. stated thus : It has, however, to be made clear that it cannot be said that lawyers only because the have a right to practise in a court have 'locus standi' to file petitions in respect of every matter concerning judge, courts and administration of justice. There are many such matters in which they have no 'locus standi' to ask for relief ..... But for the active participation of these two persons, the petitions regarding reliefs concerning them individually would have probably become liable to be dismissed on the ground that the lawyers have no 'locus standi' to make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y, J. :- (Minority view) 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 furrow, since the matter is of great significance and the questions to be decided bear wider significance. 30. The short sift of the facts pertinent to the points posed are that on February 27, 1991 a notice of motion signed by 108 members of the 9th Lok Sabha was presented to the Speaker to intiate proceedings against Hon'ble Mr. Justice Veeraswami Ramaswami, a sitting Judge of this Court, alleging commission of financial irregularities in the discharge of his administrative duties as Chief Justice of the Punjab and Haryana High Court. The Speaker admitted the motion on March 12, 1991 and constituted a Committee comprising of Sri Justice P. B. Sawant, a sitting Judge of this Court, as Presiding Officer and Sri Justice P. D. Desai, the Chief Justice of the Bombay High Court and Sri Justice O. Chinnappa Reddy, a retired Judge of this Court, a distinguished jurist as members unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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-sec. (2) of S. 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 power must be exercised consistent with the established practice and norms and consistent with the idea of independence of judiciary, after consultation with the Chief Justice of India. In the present case all the three Committee members were directly approached by the Speaker, respondent No. 3, who thereby departed from the well established practice and hence the constitution in law of the Committee clearly vitiated in law. (3) Although sub-sec. (1) of S. 4 of the Judges (Inquiry) Act empowers the Committee to regulate its own procedure in making the investigation, which procedure must be consistent with the rules of natural justice, the committee has not outlined an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied 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 Art. 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 available to deal with this aspect. The petitioner being a non-party is not bound by the Constitution Bench Judgment which requires fresh look in the light of the above material. The constitution of the Committee without consultation and nomination by the Chief Justice of India became illegal. The enquiry, not having been preceded by any investigation, is ultra vires of Art. 124(5) of the Constitution. If it is otherwise, sub-secs. (3) and (4) of S. 3, S. 4(1), etc. of the Act are ultra vires of Art. 124(4). He further contends that the Committee cannot be a Prosecutor and a Judge. Before framing definite charges, it has to conduct an investigation into the allegations after gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , contended that the alleged misbehavior was committed while discharging his duties as Chief Justice of Punjab and Haryana High Court; as per Art. 217 (1)(C) on his elevation to this Court, they ceased to be of any relevance for an investigation under Art. 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 G. Ramaswamy, the learned Attorney General contends that the Union of India did not file any counter, nor is interested in taking any particular stand in the matter. As Attorney General, on notice, contends that in a public interest litigation the essential requirement is that the petitioner must be genuinely interested to seek declaration of public law. Only persons like busy body or actuated with malice, should have no locus standi. The petitioner, being an advocate and a Member of Parliament, gets sufficient interest to maintain the writ petition. The omission to implead the learned Judge, though ideal to have him impleaded, does not become an handicap to declare the law which would bind the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 learned Judge. Accordingly, he admitted the motion and constituted the committee. It is neither necessary for him to make prior investigation nor give notice to the Judge. It is not mandatory that he should consult the Chief Justice of India. It is his discretion. The constitution of the committee without consulting the Chief Justice of India is not illegal. The committee is not required to make investigation before framing definite charges. The committee is to consider the record sent by the Speaker and if it found prima facie evidence or material to frame definite charge or charges, it would be open to the committee to do so and issue notice in Form I to the learned Judge. Before framing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Indisputably, the petitioner is an advocate of Madras High Court Bar and he is also a Member of the Parliament. Therefore, it cannot be said that he is a pro bona publics. His genuine interest to uphold the dignity of the judiciary is not doubted. The petitioner sought time to implead the learned Judge as a party respondent to the writ petition. But ultimately, it was given up. By itself it would not detract, if the relief/reliefs otherwise would be considered and given. The facts present interpretation of the constitution, the scope of the Speaker's power to admit the motion to remove a Judge, his dignity coupled with the independence of the judiciary, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment 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 that decided SCJA's case. 38. The Constitution confers in explicit language judicial review on the Supreme Court and by operation of Arts. 138, 139 and 140, enlarged that power, to elongate and effectively adjudicate the questions doing full and effective justice. The power of judicial review is to stamp out excesses in exercise of power, injustice or miscarriage of justice. The decision of this court is the last word on the interpretation of the Constitution and the laws as law of the land under Art. 141. The Judge is the living oracle working in dry light of realism pouring life ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 would be inexpedient to lay down any principles which should govern the approach of the court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations: What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the court not drawn to any relevant and material statutory p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief in favour of that person in his absence could in an appropriate case also be granted. In Makhanlal Waza v. State of Jammu and Kashmir (1971) 1 SCC 749 at 753 para 6: (AIR 1971 SC 2206 at p. 2209) (para 5), 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 (AIR 1982 SC 149) 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 v. State of A.P. 1985 (Supp) SCC 432: (AIR 1986 SC 210), this court held that the relief claimed is of a general nature and against the State and so the failure to implead all the affected parties is not a bar to maintain the writ petition. SCJA's case (1991 AIR SCW 1573) itself is an authority for the proposition of declaration of public law when laid by the Advocates. In this case three Judges' Bench referred public law questions to this Bench which are of wider constitutional ramifications touching upon the independence of judiciary and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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 the 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 record . He would consider that record and filter the process before deciding to initiate proceedings or refusal thereof. He need not weigh the pros and cons to find prima facie case. He acts, neither as a quasi-judicial nor an administrative authority but, purely as a constitutional functionary and with high sense of responsibility and on due consideration of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 haven 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 parliamentary democracy governed by rule of law, any action, decision or order of any statutory/ public authority/ functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 there-of. 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. 48. Whether the Speaker is enjoined to consult the Chief Justice of India before constituting the Committee under S. 3(2) or seek nomination of a sitting Judge of this Court or one of the High Court s Chief Justices is the next question. Section 3(2) contemplates that if the motion to remove a Judge is admitted, the Speaker shall, keep the motion pending and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigate 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 Art. 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. S.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 ......... 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 Jaswant Singh from Bhartiya Janta Party and the SCJA sought permission, to place on record certain material in their possession said to be against the learned Judge and to lead evidence against him through their counsel and it granted conditional permission to assist the Advocate appointed under S. 3(9) to conduct the case against the learned Judge. A c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory obligation under S. 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 Art. 124(4) and the Rules. 50. 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 none 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 or disprove the charge/ charges and be heard. No one except the Judge, in the event of all adverse finding of guilt and none, when the Judge was absolved of the charge/ charge be permitted to assail the correctness, legality or validity of the proceedings, process or findings of guilty or not guilty. None has rights or interest with askance eye to parade the correctness of the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to M/s George Fernandez 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 of the Committee. 52. Equally, the contention that the procedure envisaged in S. 3(3), (4) and S. 4 are unconstitutional and ultra vires of the Art. 124(4) of the Constitution is misconceived. Art. 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 membership of that House and by majority not less than two-thirds of the members of the House present and voting has been presented to the President in the same session for such removal, on the ground of proved misbehavior or incapacity . Sub-Article(5) thereof regulates by law the procedure for the presentation of the address and for the investigation and proof of misbehaviour or incapacity of the Judge . In exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit under the Code of Civil Procedure, .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 S. 4(1) 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 S. 4(2) read with Rule 9, as 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 report is not unanimous as per sub-rule (1) of Rules 9 majority view in terms of sub-rule (4) thereof should be communicated. If the majority finds that the charges are not proved and one member found the misbehaviour or incapacity proved it should be kept confidential and withheld to the Parliament or any other authority, body or person. Under Rule 10, the evidence of each witness examined by the Committee shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 55. 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 counsel for the plaintiff without any hold or control by the Speaker and would assist the Committee as an independent agent. The Committee while making investigation does not act like a prosecutor nor itself would lead evidence against the Judge but acts akin to a Civil Court. The Speaker/ Chairman also has no say or sway during investigation into the alleged misbehaviour of the Judge. . The Committee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oof, 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. 59. The Committee as Judicial authority adopts the procedure of a trial of a civil suit under the Code of Civil Procedure; 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 'investigation' is to discover and collect the evidence to prove the charge as a fact or disprove. The Evidence Act defined the words proved and disproved as when after considering the matters before it, the Court either believes the fact to exist or not to exist or its existence is so probable/non-existence is probable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht, 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/need 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 Art. 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. 61. 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 through integral part of composite scheme to remove an erring Judge through political process, the proceedings before the Committee is purely judicial with all its indicia as the C.P.C. was expressly made applicable. The Constitution, the Act and the rules aimed to discipline the disciples when gone astray so as to establish the supremacy of law so that the pure flames of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 disastrous. So long as one holds the judicial office, the above conduct remains germane and relevant. Any imputation of misbehavior 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. 63. The meaning of the word 'misbehaviour' in Article 124(4) of the Constitution is the crux of the question. Before embarking into the question, it is necessary to gaze the founding father's animation and anxiety to wean away or ward off or disabuse the executive mind of the judges of the constitutional Court in judicial review. Article 124(2) of the Constitution fixes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary 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 and incorruptible. He/she should have the courage, uprightness and conviction to do his/her duty in terms of the oath. 65. 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 of the whole constitutional system keeping the Executive and the Legislature within the confines of their power and jurisdiction and also check' their excesses and declare ultra vires their powers and actions while keeping a self-check. The independence of the judiciary in the scheme is essential to establish real parliamentar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness. 'Misconduct in office' was defined as Any unlawful behaviour by a public officer 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 . 69. In Encylopedic 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' implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude . The word 'misconduct' is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 S. 6(3) for removal under Art. 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. 71. 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 extraordinary 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 would appear to be difficult to give a comprehensive definition to meet myriad situations. The scope of judicial review after the committee records findings that the misbehaviour has been proved would appear to be fraught with imponderables. The occasion for judicial review would scarcely arise. There are no set rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
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