TMI Blog1992 (8) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ' of misbehaviour only prior to submission of the report of the Committee to the Speaker - in accordance with Section 4 (2) of the Act or latest till it is laid before the Parliament as required by Section 4(3) of the Act, but not thereafter. Accordingly, the petitioner claims that a copy of the report should be furnished to the concerned Judge before it is submitted to the Speaker, to preserve the right of the Judge to seek judicial review of the finding of 'guilty', if any, in the report. The merit of this submission is considered herein. 2. The petitioner is the wife of Mr. Justice V. Ramaswami, a sitting Judge of the Supreme Court of India. In this writ petition under Article 32 of the Constitution of India, certain constitutional issues have been raised which are to be decided on the construction of Article 124 of the Constitution of India and the Judges (Inquiry) Act, 1968 read with the Judges (Inquiry) Rules, 1969 framed thereunder, in the background of the law declared in Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699 In essence, this petition is a sequel to that earlier decision rendered in the context of the proceedings for rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common prayers in both the petitions were for a direction to the Union of India to take immediate steps to enable the Inquiry Committee to discharge its functions under the Act; and to restrain the Judge concerned Mr. Justice V. Ramaswami from performing judicial functions and exercising 'judicial powers during the pendency of the proceedings before the Committee. The decision rendered therein by a Constitution Bench is Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699 5. The Constitution Bench by a majority of 4: 1 held that a motion under Section 3(2) of the Act does not lapse upon the dissolution of the House. The majority opinion concluded as under:- All that is necessary to do is to declare the correct constitutional position. No specific writ or direction need issue to any authority. Having regard to the nature of the subject matter and the purpose it is ultimately intended to serve all that is necessary is to declare the legal and constitutional position and leave the different organs of the State to consider matters falling within the orbit of their respective jurisdiction and powers 6. The controversy before the Constitution Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peaker has extended the date for the Committee to furnish its report under the Judges (Inquiry) Act, 1968 till July 31, 1992. I, therefore, assume that prior to that date the report will be furnished to the Hon'ble Speaker. The Hon'ble Supreme Court in its judgment on Sub-Committee on Judicial Accountability v.Union of India, (1991) 4 SCC 699 has held that the Committee under the Judges (Inquiry) Act, 1968 is a statutory committee and from the time it commences its proceedings till its report is placed before Parliament, its proceedings are deemed to be outside Parliament and, therefore, subject to judicial review. As the Committee is required to render its findings in respect of the various charges framed against me, I would like to be supplied a copy of the report well in time to entitle me to challenge the same by filing appropriate proceedings, in the event any findings are rendered against me. A reading of the Constitution Bench's judgment would suggest that such an opportunity would be available to me since the Committee functions as a Tribunal outside Parliament. I, therefore, do not expect the Committee to render infructuous this valuable constitutional right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Report of the Committee to Mr. Justice V. Ramaswami and to withhold forwarding of the said Report to the Speaker of the Lok Sabha simultaneously to enable Mr. Justice V. Ramaswami to seek redress in a court of law, if required or necessary, against the findings of the Committee in its Report. This relief is sought on the basis of the decision of the Constitution Bench reported in (1991) 4 SCC 699 (AIR 1992 SC 320) that the entire proceedings of the Committee are statutory in nature and, therefore, subject to judicial review. 10. When the matter came up for hearing before us first on July 21, 1992, we indicated to Shri Kapil Sibal, senior counsel for the petitioner that even though the petitioner's right for the relief claimed in this petition is founded on her status as wife of the learned Judge and the right flowing to her through her husband, yet Mr. Justice V. Ramaswami had not been impleaded as a party and it was also not indicated that the writ petition was for and on behalf of the learned Judge so as to bind the learned Judge himself to the decision in this petition. We also pointed out that the exact position of the learned Judge has to be made clear to us be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by Mr. Justice v. Ramaswami in his own hand, we made an order to this effect which is contained in the proceedings dated July 22,1992 asunder:- Mr. Ranjit Kumar, learned counsel for the petitioner has filed a letter dated July 21, 1992 addressed by him to Mr. Justice V. Ramaswami bearing the endorsement of Mr. Justice V. Ramaswami at the foot of it accepting as correct Justice V. Ramaswami the position is that this writ petition is in substance by the learned Judge himself field through his wife who is shown as the petitioner (Emphasis supplied) 13. The result, therefore, is that this writ petition is in substance by the learned Judge Mr. Justice V. Ramaswami himself filed through his wife, the petitioner Smt. Sarojini Ramaswami for the relief claimed herein on behalf of her husband Mr. Justice V. Ramaswami. This writ petition is treated accordingly for the purpose of deciding the points raised herein. 14. In addition to issuing notice to the respondents, namely, the Union of India and the Inquiry Committee appointed under Section 3 (2) of the Act, we also requested the learned Attorney General to appear and assist the Court in his capacity as the Attorney General o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would undoubtedly be directly affected by the decision on merits of the questions raised therein. We are disposing of Writ Petition No. 149 of 1992 also separately on the definite stand taken by the petitioner therein of pursuing that petition declining to implead Mr. Justice V. Ramaswami in spite of opportunity given for the purpose. The present Writ Petition No. 514 of 1992 by Smt. Sarojini Ramaswami came to be filed thereafter in these circumstances on conclusion of the Inquiry by the Committee constituted under the Act. 17. The main point for decision in this writ petition - Writ Petition No. 514 of 1992 - is: Whether as a result of the decision in Sub-Committee on Judicial Accountability Mr. Justice V. Ramaswami is entitled to be supplied a copy of the report of the Committee containing its findings before submission of that report to the Speaker of the Lok Sabha in accordance with Section 4 (2) of the Act to enable him to challenge the adverse, findings, if any, against him at this stage in a Court of law? The submission of Shri Kapil Sibal, learned Senior counsel for the petitioner is that this right of Mr. Justice V. Ramaswami is a logical corollary of the decision in Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the Speaker in accordance with Section 4(2) of the Act. The question, therefore, is: Whether the basic premise on which the argument is based, namely, judicial review now or never' is correct or the law is that judicial review on permissible grounds is not now but only later in case an order of removal is made by the President under Article 124(1) of the Constitution? Is it that the challenge permissible in the constitutional scheme is actually to the order of removal made by the President under Article 124(4) based on the composite process of removal comprising of the initial statutory part which provides the condition precedent for, and the parliamentary part of the process thereafter? 18. Shri F. S. Nariman, learned senior counsel appearing on behalf of the Committee did not dispute the right of the learned Judge to seek judicial review of the statutory part of the process as declared in the earlier decision on permissible grounds of judicial review, but he urged that on completion of the Inquiry culminating in recording of the findings in the report. The principle of committee between the constitutional authorities requires that the Courts must not interdict the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee at this stage before it is submitted to the Speaker under Section 4(2) of the Act. The learned Attorney General entirely agreed with Shri F. S. Nariman that in the event of an adverse finding by the Committee, the learned Judge would be entitled to an opportunity during the parliamentary process to assail the finding against him and thereby facilitate the Parliament to consider the motion properly. 20. From the rival submissions, as summarised above, it is clear that in case the learned Judge would have the right to seek judicial review in the event an order of removal is made against him under Article 124(4) of the Constitution, and the permissible grounds of judicial review whatever they be at this stage, would remain unimpaired then, the main reason for requiring a copy of the Report of the Committee to be furnished now before commencement of the parliamentary process would disappear. In such a situation, the only other question would be: Whether there is any added prejudice by deferment of the exercise of that right till after the making of the order of removal, if any? This further question would arise only if the constitutional scheme envisages the remedy of judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is made. 22. Another submission of Shri Kapil Sibal, in effect, to buttress his main submission indicated above, is that the Committee constituted under Section 3(2) of the Act, is a Tribunal and, therefore, its findings are subject to appeal in this Court under Article 136 of the Constitution. This argument also is to claim that the learned Judge is entitled to a copy of the report before its submission under Section 4 (2) of the Act to the Speaker to exercise the right of appeal against the adverse finding of 'guilty', if any, in the report. 23. The constitutional scheme for the removal of a Judge of the Supreme Court or a High Court in accordance with Article 124(4) of the Constitution and the Judges (Inquiry) Act, 1968 made under Article 124(5) of the Constitution read with the Judges (Inquiry) Rules, 1969 framed under the Act was considered and indicated in the earlier decision in Sub-Committee on Judicial Accountability (AIR 1992 SC 320 ). It is, however, useful to recapitulate the scheme in the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969 made thereunder in the context of the question which now arises for decision on the basis of the decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of a sitting Judge of the Supreme Court and a sitting Chief Justice of a High Court as members of the Committee constituted under Section 3(2) of the Act, if the motion is admitted by the Speaker / Chairman. Sub-section (2) of Section 3 then provides that the Speaker/ Chairman, in case he admits the motion, 'shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for', a Committee of three members of whom one shall be from among the Chief Justice and other Judges of the Supreme Court, one from among the Chief Justices of the High Courts and a distinguished jurist. This means that an inquiry into the grounds on which the removal of a Judge is prayed for in the notice of motion given by the specified minimum number of members of Parliament or in other words the inquiry into the allegations of misbehaviour or incapacity of the Judge requiring his removal would be made by the Committee so constituted comprising of two sitting Judges and a distinguished jurist. Sub-section (1) of Section 4 empowers the Committee to regulate its own procedure subject to any rules ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Houseand the motion pending in the House shall not be proceeded with' in Section 6(1) of the Act. In Sub-Committee on Judicial Accountability, (1991 (4) SCC 699 If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4) . 27. Sub-sections (2) and (3) of Section 6 provide for the situation where the report of the Committee contains a finding that the Judge is 'guilty' of any misbehaviour or suffers from any incapacity. Sub-section (2) prescribes that the motion admitted by the Speaker / Chairman under Section 3(1) of the Act shall then be taken up for consideration by the House together with the report of the Committee. It is in this situation and in this manner that the parliamentary part of the process of removal of a Judge commences requiring the House to consider the motion for removal of the Judge. Sub-section (3) lays down that if the motion is adopted by each House of Parliament in accordance with provisions of clause (4) of Article 124, then the misbehaviour or incapacity of the Judge shall be deemed to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Judge is 'not guilty', then 'the Inquiry Committee shall not disclose the finding made by such third member to Parliament or to any other authority, body or person'. (Emphasis supplied) 29. It is clear that if the finding of 'not guilty' is even by majority and not unanimous, the contrary finding of 'guilty' by the third member is not even to be disclosed to 'Parliament or to any other authority, body or person' much less acted upon for any purpose by anyone. The scheme embodied in Section 6 of the Act read with Rule 9 is that where the finding of the Inquiry Committee is of 'not guilty' whether unanimous or by majority of the members of the Inquiry Committee, the entire process of removal of the Judge terminates with that finding giving the quietus to the accusation of misbehaviour by the Judge scotching all rumours and the motion is not even required to be taken up for consideration by the Parliament so that the parliamentary part of the process does not commence in the absence of the condition precedent of a finding of 'guilty' by the Inquiry Committee essential for its commencement. In such a situation when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (5) of Article 124 of the Constitution and the parliamentary law enacted under Article 124(5) shuts out all scrutiny even by judicial review where the Inquiry Committee unanimously or even by majority makes a finding that the Judge is 'not guilty' of any misbehaviour. Obviously, the concerned Judge cannot be aggrieved by a finding of 'not guilty' in his favour and in case such finding is not unanimous but by majority, non-disclosure of the dissenting opinion of guilty, as required by Rule 9(6) of the Rules, even to the Parliament, prevents any possible damage to the reputation of the concerned Judge from the dissenting opinion and, therefore, there can be no legitimate grievance to him from the undisclosed dissenting opinion. For this reason, the concerned Judge can have no grievance against exclusion of judicial review in that situation. 32. The constitutional scheme indicates that it is only the Members of Parliament acting jointly in the specified minimum number who can bring about initiation of the procedure for removal of a Judge, all other modes and persons being excluded. The provision in Rule 9(6) for non-disclosure of the dissenting opinion of 'gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the process till then being statutory. The incidents of statutory process are to be considered in this perspective. 34. In this background, the real question for decision now is: Whether the right of the concerned Judge to assail the finding of 'guilty' against him reached by the Inquiry Committee, a statutory authority, can be exercised only if the report is furnished to the concerned Judge before the commencement of the parliamentary process which obliges the Inquiry Committee to furnish a copy of the report to him at least in the situation where the finding reached is that the Judge is 'guilty' of any misbehaviour? Before proceeding to consider this question, it may be added that if there be several charges framed against the Judge and in respect of some of them the finding is that the Judge is 'guilty' while the finding on the other charges is that the Judge is 'not guilty', then the consequences which would ensue in respect of the finding on each charge would depend on its nature. In other words, in respect of a charge of which the Judge is found 'not guilty', the consequences would be those indicated above in accordance with Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been found to be proved in some forum outside either Houses of Parliament. Law under Article 124(5) is mandatory and until the Parliament enacts a law and makes provision for an investigation into the alleged misbehaviour or incapacity and regulates the procedure therefor, no motion for removal of a Judge would be permissible under Article 124(4) and the Houses of Parliament would not be brought into the picture till some authority outside the two Houses of Parliament has recorded a finding of misbehaviour or incapacity. The emphasis is on the expression 'proved'. Acceptance of the second view was stated thus - The second view has its own commendable features. It enables the various provisions to be read harmoniously and, together, consistently with the cherished values of judicial independence. It also accords due recognition to the word proved in Article 124(4). This view would also ensure uniformity of procedure in both Houses of Parliament and serve to eliminate arbitrariness in the proceedings for removal of a Judge. It would avoid duplication of the investigation and inquiry in the two Houses. Let us elaborate on this . The motion which lifts the bar con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e picture and the motion for removal of the Judge on the ground of proved misbehaviour or incapacity is moved for presentation of the address to the President in the manner prescribed This indicates that the machinery for investigation and proof must necessarily be outside Parliament and not within it. In other words, proof which involves a discussion of the conduct of the Judge must be by a body which is outside the limitation of Article 121. The word 'proved' also denotes proof in the manner understood in our legal system i.e. as a result of a judicial process. The policy appears to be that the entire stage up to proof of misbehaviour or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124 (5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it. If this be so, it is a clear pointer that the Parliament neither has any role to play till misconduct or incapacity is found proved nor has it any control over the machinery provided in the law enacted under Article 124 (5). The Parliament comes in the picture only when a findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process. It is this synthesis made in our Constitutional Scheme for removal of a Judge. Indeed, the Act reflects the constitutional philosophy of both the judicial and political elements of the process of removal. The ultimate authority remains with the Parliament in the sense that even if the committee for investigation records a finding that the Judge is guilty of the charges it is yet open to the Parliament to decide not to present an address to the President for removal. But if the committee records a finding that the Judge is not guilty, then the political element in the process of removal has no further option. The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial independence. Our conclusions, therefore, on Contentions B, C and D are as under: The constitutional process for removal of a judge up to the point of admission of the motion, constitution of the committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the accusation made in the manner prescribed by the specified minimum number of members of Parliament having been investigated by an Inquiry Committee comprising of high judicial dignitaries and the conclusion reached by them being that the Judge is 'not guilty' of any misbehaviour, the matter must conclude there scotching all rumours without anyone being permitted to even reagitate much less examine the correctness of that finding of 'not guilty'. 38. When the finding in the Committee's report is that the Judge is 'guilty' of any misbehaviour, then S. 6(2) of the Act mandates that the motion for removal of the Judge shall be taken up for consideration by the House together with the report of the Committee submitted in accordance with S. 4(2) and laid before it under S. 4(3) of the Act. Rule 9(1) of the Rules provides that where the members of the Inquiry Committee are not unanimous, the report submitted by the Committee shall be in accordance with the finding of the majority of the members thereof. We have already indicated the provision in Rule 9(6) and its true import where the majority of the members makes a finding that the Judge is not guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the requisite majority in each House of Parliament that the misbehaviour or incapacity of the Judge shall be deemed to have been proved as provided in S. 6(3) of the Act. 39. The Parliament while considering the motion for removal of the Judge for deciding whether to adopt the motion or not takes into consideration the report as well as the dissenting opinion, if any, of the third member of the Inquiry Committee in case the majority opinion is that the Judge is guilty, along with the entire evidence received by the Inquiry Committee on which the finding of guilty of the Inquiry Committee is based. No doubt, the Parliament does not substitute its finding for that of the Inquiry Committee or supersede it in case it decides not to adopt the motion by the requisite majority so that the motion for removal of the Judge fails and the proceedings terminate but in doing so it does take the decision to not adopt the motion because it declines to accept and act on the finding of guilty recorded in the report of the Committee after debating the issue on the basis of the materials before it. 40. These express provisions in the law enacted under Art. 124(4) leave no doubt that a full c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other relevant materials made available to it. To enable performance of this exercise and to effectuate the concerned Judge's right to show cause against the finding of 'guilty' made in the report at this stage to the Parliament, it is the clear obligation of the Speaker / Chairman to supply a copy of the Inquiry Committee's report to the concerned Judge while causing it to be laid before the Parliament under S. 4(3) 'as soon as may be' on its submission under S. 4(2). This view also has the advantage of providing the concerned Judge an opportunity during the parliamentary part of the process of removal to place his point of view and offer the comments, if any, on the finding of 'guilty' against him made by the Inquiry Committee for consideration by the Parliament before voting on the motion for removal of the Judge. 42. The further question then is of the nature of this opportunity to the concerned Judge during the parliamentary part of the process. Reference to the procedure adopted for giving an opportunity to Mr. Justice Vasta of the Supreme Court of Queensland in Australia where the process for removal of the Judge was entirely parliamentary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, on the finding of guilty made in the Committee's report when it takes up for consideration the motion for removal of the Judge, such procedure ensuring fairness to the concerned Judge and being in keeping with the dignity of the high office held by the learned Judge. 44. This aspect being related to the right of judicial review available to the concerned Judge and in view of our above opinion that an opportunity to the Judge during the parliamentary process is clearly implicit in the constitutional scheme, a brief reference to the nature of opportunity given in the case of Justice Vasta in Australia would be helpful as a persuasive precedent. 45. Justice Angelo Vasta faced a proceeding for his removal from office as a Judge of the Supreme Court of Queensland in Australia. A Commission of Inquiry was set up under the Parliamentary (Judges) Commission of Inquiry Act, 1988. The function of the Commission as provided in the Act was to inquire and advise the Legislative Assembly of Queensland whether the behaviour of Justice Vasta warranted his removal from office. The Commission was constituted of a former Chief Justice of Australia and two other Judges. The Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s important constitutional role. I believe that Mr. Justice Vasta has the. right - and we have the duty to allow him to address us, either personally or by his lega1 representatives should he so wish but the purpose of this privilege is to assist us in our difficult deliberations, Finally, I also wish to emphasise to honourable members that it would be inappropriate at this stage for there to debate on the findings of the Commission and it would be better both for the dignity of this House and in fairness to Mr. Justice Vasta that we give him the opportunity to address us before the matter is fully debated and a decision is made by the Assembly. (Emphasis supplied) The Parliamentary Debates further show that Justice Vasta was given such an opportunity which he availed. It is not necessary in the present case to make any further reference to the proceedings against Justice Vasta. Suffice it to say that the materials relating to the proceedings of removal of Justice Vasta show clearly that he was given an opportunity to show cause against his removal from office as a Judge by the Parliament when it took up for consideration the recommendation of the Commission of Inquiry wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the inchoate finding of 'guilty' made by the Inquiry Committee which may or may not be acted upon by the Parliament. Another reason to support this view appears to be that the proceedings for removal of a Judge are required to be concluded at the earliest in public interest and, therefore, no interdiction of the process is contemplated at the stage of an inchoate finding of 'guilty' by the Inquiry Committee. An opportunity to the concerned Judge at that stage also to show cause against that inchoate finding of guilty' fully safeguards his interest without the need for judicial review at that stage, the scope for Parliament's scrutiny of the Committee's finding of guilty being very wide. 48. Even though judicial review of the finding of 'guilty' made by the Inquiry Committee may be permissible on limited grounds pertaining only to legality, yet the power of the Parliament would not be so limited while considering the motion for removal inasmuch as the Parliament is empowered to not adopt the motion in spite of the finding of 'guilty' made by the Committee on a consideration of the entire material before it which enables it to go e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unwarranted in the constitutional scheme. 51. This construction while protecting interest of the concerned Judge gives full effect and due importance to the role of all the high dignitaries involved in the process of removal, there being no reason to doubt that each one of them would be fully alive to the significance of his role and extent of obligation under the constitutional scheme. If, however, any illegality occurs even then, the provision for judicial review at the end of the process permits its correction without interdicting the process in between. 52. We may at this stage deal with the other submission of Shri Kapil Sibal that the Inquiry Committee is a Tribunal for the purpose of Art. 136 of the Constitution. 53. Shri Kapil Sibal has urged that the Committee constituted by the Speaker / Chairman in exercise of his power under S. 3(2) of the Judges (Inquiry) Act, 1968 is a 'Tribunal' for the purpose of Art. 136 of the Constitution and since an appeal would lie in this Court against the findings of the said Committee, the report of the Committee is required to be furnished to the Judge concerned in order to enable him to exercise that right. Shri Sibal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lter the terms of employment 'according to contract between the parties. The Conciliation Officer has undoubtedly to act judicially in dealing with an application under cl. 29, but he is not invested with the judicial power of the State; he cannot therefore be regarded as a 'tribunal' within the meaning of Art. 136 of the Constitution. (Emphasis supplied) 56. In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd. (1992) 3 JT (S C) 446 on a conspectus of the earlier decisions, it was held by the Constitution Bench that the appropriate Government or authority while granting or refusing permission for retrenchment of workmen under S. 25-N of the Industrial Disputes Act, 1947, is not a tribunal on the view that the position of the appropriate Government or authority exercising the said power was not very different from that of a Conciliation Officer who was held to be not a tribunal in Jaswant Sugar Mills (AIR 1963 SC 677 ). The view taken was that there was no provision attaching finality to an order under S. 25-N(2) and it was permissible for the workmen aggrieved by retrenchment affected in pursuance of order granting permission for such retrenchment to raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigating into the charges framed by it against the Judge, the Committee is required to act judicially and, as held by this Court in Sub-Committee on Judicial Accountability (AIR 1992 SC 320 ), the said process is subject to judicial review. But the question is whether in discharging this function the Committee acts as a tribunal. In order to answer this question it is necessary to examine the nature of determination made by the Committee. 61. In this context, it would be relevant to recall the scheme indicated earlier. The determination by the Committee that the Judge is 'not guilty' of misbehaviour is alone final as it terminates the proceeding. However, in that case there is no scope for judicial review of the finding of 'not guilty' made by the Committee as already indicated. This aspect negates the character of tribunal for this reason alone. In the other situation when the Committee's determination is that the Judge is 'guilty' of misbehaviour, that finding is inchoate which may or may not be acted upon by the Parliament. Finding of 'guilty' made by the Committee is in the nature of recommendation to Parliament to commence its process a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort to the Judge by the Committee before its submission to the Speaker was contemplated by the law enacted under Art. 124(5) that area would not be left blank in the provisions made in the law while providing elaborately for submission of the report together with its manner, including the number of copies, in S. 4 of the Act and R. 9 framed thereunder. The absence of such a provision in this law is a deliberate and not an inadvertent omission to emphasis absence of the requirement which also matches the construction made by us of the Constitutional scheme including the requirement of an opportunity to show cause against removal to be given by the Parliament to the Judge. 66. Keeping in view the aforesaid provisions of the Act and the Rules and specially. the fact that certain finding recorded by a member of the Committee is not required to be disclosed in the given circumstances and the finding recorded by the Committee holding that the Judge is guilty of any misbehaviour is not final and conclusive, it is legally not permissible to hold that the Committee is a tribunal under Art. 136 of the Constitution. This contention of Shri Sibal is, therefore, rejected. 67. No doubt, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o excludes the needless meddling in the process by busy bodies confining the participation in it to the Members of Parliament, the Speaker / Chairman and the Inquiry Committee comprising of high judicial functionaries apart from the concerned Judge, if the allegations permitted to be made only in the prescribed manner justify an inquiry into the conduct of the Judge. 69. In the event of an order of removal being made by the President under Article 124(4), the right of the concerned Judge to seek judicial review on permissible grounds would be for quashing the order of removal made against him on the basis that the finding of 'guilty' made by the Inquiry Committee in its report which matured into 'proved misbehaviour' on adoption of the motion by Parliament suffers from an illegality renderhig it void resulting in the extinction of the, condition precedent for commencement of the parliamentary process for removal in the absence of which there is no foundation for considering or adopting the motion for presenting an address to the President for removal of the Judge and, therefore, no authority in the President to make the order of removal. 70. The permissible gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Constitutional Foundations of the Powers of the Courts under the heading 'The Sovereignty of Parliament', the effect of Parliament's intervention is stated thus:- There are many cases where some administrative order or regulation is required by statute to be approved by resolutions of the Houses. But this procedure in no way protects the order or regulation from being condemned by the Court, under the doctrine of ultra vires, if it is not strictly in accordance with the Act. Whether the challenge is made before or after the Houses have given their approval is immaterial. (Emphasis supplied) Later at p. 411, Wade has said that 'in accordance with constitutional principle, parliamentary approval does not affect the normal operation of judicial review'. while discussing 'Judicial Review', Wade indicates the position thus - As these cases show, judicial review is in no way inhibited by the fact that rules or regulations have been laid before Parliament and approved, despite the ruling of the House of Lords that the test of unreasonableness should not then operate in its normal way. The Court of Appeal has emphasised that in the case of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission had properly carried out the instructions 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 on examining the merits was as under:- Parliament has thought it right to set up independent advisory bodies, the Boundary Commissions, to advise it and, in so doing, it has given the commissions instructions as to the criteria to be employed in formulating that advice. For good reasons, which we can well understand, Parliament has not asked the Courts to advise it and it has not provided for any right of appeal to the courts from the advice or proposed advice of the Boundary 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 instruction which have been given by Parliament to he minister, authority or body concerned. (Emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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) 79. The contention that the remedy of judicial review would not be available to the learned Judge once the parliamentary part of the process of removal commences on a finding of guilty being made in the report of 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. 80. We may briefly refer to the indication available of judicial review in similar situations in some other countries and als o mention the two decisions in Halsted L. Ritter v. The United States, 84 C Cls. 293 and Adam Clayton Powell v. John W. McCormark, (1969) 23 L Ed 2d 491. 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 Representatives of the United States adopted articles of impeachment against him which were duly presented to the Senate of the United States sitting as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has power to determine who is qualified to be a member. In order to determine whether there has been a textual commitment to a co- ordinate department of the Govt. we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. 1, S. 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review In other words, whether there is a textually demonstrable constitutional commitment of the issue to a co-ordinate political department of Government and what is the scope of such commitment are questions we must resolve for the first time in this case. For, as we pointed out in Baker v. Carr (1962 (369) US 186), Supra, (d)eciding whether a matter has in any measure been committed by the Constitution to another branch of Government, or whatever 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. (Emphasis supplied) 82. Powell's case (1969 (23) Law Ed 2d 91) indicates availability of Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes sole power to try all impeachments, our course has been marked out by Chief Justice Marshall: When two principles come in 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 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 trial by the Senate with an appeal from violation of constitutional boundaries would harmonize with the Powell holding that the Article 1, S. 5(1) provision that each House shall be the Judge of the qualifications of its own members does not bar inquiry into action in excess of jurisdiction (Emphasis supplied) Discussing further 'judicial review' in the context of impeachment proceedings, 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- To this it may be answered that ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 law of the land. Injurious action not authorized by the Constiiution is therefore contrary to the law of the land and is forbidden by the due process clause. Due process has been epitomized by the Court as the protection of the individual against arbitrary action. One who enters Government service does not cease to be a person,, within the Fifth Amendment; and an impeachment for offences outside constitutional authorization would deny him the protection afforded by due process. It would be passing strange to conclude that a citizen may invoke the judicial bulwark,' against a twenty-dollars fine but not against an unconstitutional impeachment, removal from and perpetual disqualification to hold federal office. Here protection of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngress has chosen the correct procedure to accomplish its asserted purposes (Emphasis supplied) 87. In S.P.Gupta v. Union of lndia,1981 Supp SCC 87 Venkataramiah, J. as he then was, after stating that 'the doctrine of political question which was holding the field long time back in the United States of America has now been exploded', referred to the decisions of the U. S. Supreme Court in Baker v. Carr 1962 (369) US 186 and Powell v. McCormack, (1969) 395 US 486: (1969) 23 L Ed 2d 491, as well as the opinion of R. Berger and then summarised the position in India as under:- In our country which is governed by a written Constitution also many questions which appear to have a purely political colour are bound to assume the character of judicial questions. In the State of Rajasthan v. Union of India, (1978) 1 SCR 1 the Government's claim that the validity of the decision of the President under Art. 365(1) of the Constitution being political in character was not justifiable on that sole ground was rejected by this Court. Bhagwati, J. in the course of his judgment observed in that case at SCR pages 80-81 It will, therefore, be seen that merely because a question has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess is not doubted. There appears to be no reason in principle why judicial review at the end of the entire process of removal of a Judge in India, where it is a composite process of which the political process is only a part, can be excluded after conclusion of the entire process including the political process. It appears to us that the view we have taken is reinforced by the law in other systems as indicated above. 89. At the commencement of the hearing of this petition, the learned Attorney General made the statement that the Speaker would await the declaration of law made in our decision and abide by it. A statement to this effect was also made by Shri F. S. Nariman on behalf of the Inquiry Committee. Consistent with the statement made by the learned Attorney General, the Hon'ble Speaker of the Lok Sabha also extended the time for submission of the report by the Committee, to give us reasonable time to prepare our opinion after conclusion of the hearing. This augurs well for the future. 90. Willis in Constitutional Law of the United States (1936) making 'final evaluation of the work of the Supreme Court' speaks about the U.S. Supreme Court thus: Withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in fairy tales any more . In countries such as the United Kingdom, where Parliament as the legislative organ is supreme and stands at the apex of the Constitutional structure of the State, the role played by judicial law-making is limited And Ungoed Thomas, J. in Cheney v. Conn (1968 (1) All ER 779 : [1968] 1 W.L.R. 242 ) referred to a Parliamentary statute as the highest form of law which prevails over every other form of law . The position is substantially different under a written Constitution such as the one which governs us. The Constitution of India, which represents the Supreme Law of the land, envisages three distinct organs of the State, each with its own distinctive functions, each a pillar of the State. The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of lawWith this impressive expanse of judicial power, it is only right that the superior courts in India should be conscious of the enormous responsibility which rest on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 118 and shall be binding on both the Houses of Parliament. A violation of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1)'. The scope of permissible challenge by the concerned Judge to the order of removal made by the President under Article 124(4) in the Judicial review available after making of the order of removal by the President will be determined on these considerations. This question in the context of the process and progress of the statutory inquiry prior to recording of the findings in the report of the Inquiry Committee does not arise in this case and has not been raised at the instance of the concerned Judge even in the connected matter, W.P. (C) No. 149 of 1992 -Shri Krishna Swami v. Union of India others , which was filed earlier and, therefore, we express no opinion on the scope of judicial review during the progress of inquiry prior to its conclusion. The reasons for declining to consider those questions at the instance of a third person in the absence of the concerned Judge facing the inquiry are given by us in the separate judgment delivered by us in that matter. 94. In sum, the position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament does not adopt the motion for removal of the Judge, the process ends there with no challenge available to any one. If the motion for removal of the Judge is adopted by the requisite majority by the Parliament culminating in the order of removal by the President of India under Article 124(4) of the Constitution, then only the concerned Judge would have the remedy of judicial review available on the permissible grounds against the order of removal. The statutory part of the process, by which a finding of guilty is made by the Inquiry Committee, is subject to judicial review as held in Sub-Committee on Judicial Accountability, (AIR 1992 SC 320 ) but in the manner indicated herein, that is, only in the event of an order of removal being made and then at the instance of the aggrieved Judge alone. The Inquiry Committee is statutory in character but is not a tribunal for the purpose of Article 136 of the Constitution. 95. The view we have taken is in complete accord with the majority opinion in sub-committee on Judicial Accountability that the statutory part of the process of removal of a Judge is subject to judicial review. The question of the stage and the situation in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 98. 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 exposision of law made by Brother K. Ramaswamy in his separate opinion circulated to us, we find that to a large extent he agrees with us, but in the area of his disagreement, we regret our inability to concur with him. 99. Consequently, for the aforesaid reasons, this Writ Petition is disposed of by declaring the law as contained in the judgment. KASLIWAL, J. (concurring with majority view):- 100. I have gone throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as the provisions of the Constitution, in order to 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soon as may be, respectively before the House of the People and the Council of States. Section 5 provides for the powers of the Committee, like a Civil Court and has been authorised to summon and enforce the attendance of any person and examining him on oath, requiring the discovery and production of documents, receiving evidence on oath, issuing commissions for the examination of witnesses or documents and such other matters as may be prescribed. Then comes Section 6 which has important bearing on the issue raised before us and as such is reproduced as under:- 6. (1) If the report of the Committee contains a finding that the Judge is not guilty of any misbehaviour or does not suffer from any incapacity, then, no further steps shall be taken in either House of Parliament in relation to the report and the motion pending in the House or the Houses of Parliament shall not be proceeded with. (2) If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion referred to in sub-section (1) of Section 3 shall, together with the report of the Committee, be taken up for consideration by the House or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to in sub-rule (3) of Rule 5, the authenticated copies of the report to the Speaker or Chairman by whom the Committee was constituted, or where the Committed was constituted jointly by them, or both of them: Provided that the Speaker or Chairman, or both of them (where the Committee was constituted jointly by them), may, for sufficient cause, extend the time within which the Inquiry Committee shall submit its report. (3) A copy of the report of the Inquiry Committee, authenticated in the manner specified in sub-rule (2), shall be laid before each House of Parliament. (4) Where the majority of the members of the Inquiry Committee makes a finding to the effect that the Judge is guilty of a misbehaviour or that he suffers from an incapacity, but the third member thereof makes a finding to the contrary, the presiding officer of the Inquiry Committee shall authenticate, in the manner specified in sub-rule (2), the finding made by such third member, in duplicate and shall forward the same along with the report submitted by him under Section 4. (5) An authenticated copy of the finding made by third member, referred to in sub-rule (4) shall also be laid before each Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of two stages. The first stage is of investigation and proof in accordance with The Judges (Inquiry) Act, 1968 enacted under Article 124 (5) of the Constitution by the Committee constituted by the Speaker acting as a statutory authority under the Act and the second stage commences after allegations of misbehaviour are found proved. In the second stage when motion is moved, bar under Article 121 on discussion in Parliament in respect of the conduct of the Judge is lifted and the process envisaged under Article 124 (4) is attracted. The first stage is subject to judicial review, but the second stage is not subject to judicial review as the process involved being parliamentary process. 106. The Inquiry report in the present case has been stated to be completed and awaits the decision of this Court in the present case. A perusal of the provisions of the Act and the Rules mentioned above shows that the process as a whole is an amalgam of statutory process as well as parliamentary process. There are number of checks and safeguards kept in the process where the matter relates to the misbehaviour of a sitting Judge of the Supreme Court and the High Courts who are high constitutional fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court, second one to be chosen from among the Chief Justices of the High Courts and the third one a distinguished jurist. The matter of investigation as such was entrusted to a high judicial authority consisting of a sitting Judge of the Supreme Court, a Chief Justice of the High Court and a distinguished jurist. This shows that the intention of the Parliament was to maintain the dignity and independence of the judiciary and as such the investigation in respect of the misbehaviour of a sitting Judge of the Supreme Court or the High Court was entrusted to a wholly judicial body consisting of judicially trained persons and no interference of any kind has been allowed or given to any executive authority or to any person outside the judiciary. Not only that, a combined reading of all the relevant provisions of the Constitution, the Act and the Rules clearly show that where an Inquiry Committee unanimously or by majority records a finding of not guilty of the charges levelled against the Judge, the matter ends and no further discussion on the motion is required in the Parliament. It is further important to note that sub-rule (6) of Rule 9 further provides that where the majority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s outside the Parliamentary process and any action till such stage being outside Parliamentary process is amenable to judicial review. It has been submitted that the learned Judge is entitled to question the adverse findings of misbehaviour, if any, recorded by the Committee and this can be done only when the copy of the report is given to the learned Judge and thereafter reasonable time is given for availing the right of challenging the same by judicial review. It has also been contended that there is no provision in the Act and the Rules for the Speaker to supply a copy of the report to the learned Judge. Once a report is placed on the floor of each House of Parliament, it is exclusively within the domain of the Parliament and it cannot be predicated as to what procedure the Parliament may adopt regarding the consideration of the motion. This valuable right cannot be taken away nor rendered nugatory by interpretative process which would violate the principles of nature justice. 109. Mr. G. Ramaswamy, Learned Attorney General contended that the Cornmittee is in the nature of a subordinate.authority to the Speaker. The report is like granting of sanction for prosecution of a pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel appearing for the petitioner. If we examine the provisions of the Act and the Rules a contrary conclusion emerges to what is prayed by the petitioner. Section 4 (2) of the Act clearly envisages that at the conclusion of the investigation, the Committee shall submit its report to the Speaker and under sub-section (3) the Speaker shall cause the report to be laid, as soon as may be before the House of the People in the present case. Further under Rule 9(2) (c), it is provided that the Presiding Officer of the Inquiry Committee shall forward the report within a period of three months from the date on which a copy of the charges framed under sub-section (3) of Section 3 is served upon the Judge, or where no such service is made from the date of publication of the notice referred to in sub-rule (3) of Rule 5. Under the proviso, the Speaker is authorised to extend the time for sufficient cause. Thus, the intendment of the aforesaid scheme of the provisions is a speedy disposal of the investigation in public interest and the report is required to be sent to the Speaker as soon as the investigation is concluded, unless the case falls within the ambit of Rule 9(6) in that case the Inq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, but that alone cannot be considered as a ground for seeking a judicial review against the report of the Committee. The question of not giving any opportunity of hearing before any action is taken against the learned Judge by the Parliament can only arise after any decision is taken against the Judge by the Parliament. The violation of principle of natural justice, if any, cannot be examined in isolation, but depends on the facts and circumstances of each case. No argument based on the violation of principle of natural justice can be considered on the assumption that the Parliament may adopt a procedure which may be in violation of principles of natural justice. Learned Attorney General at a subsequent stage of the arguments as well as the Counsel for the Committee were in agreement on this score that the Parliament shall give an opportunity of hearing to the learned Judge before taking a final decision on the motion and as a necessary corollary thereof the copy of the Inquiry report shall be given to the learned Judge by the Parliament. Thus, if a direction is being sought for supplying a copy of the report on the ground of assumed violation of any principle of natural justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before sending the same to the Speaker. This Court cannot give any mandamus to any authority unless it can be shown that such authority is acting in violation of any provisions of the statute or constitutional obligation. Thus, even if it may be considered that the Committee is performing a statutory function amenable to the jurisdiction of this Court in judicial review, it must be shown that it is acting in violation of any rule or law. In the present case the Inquiry Committee is rather performing its legal duty and fulfilling the statutory obligation of sending the report to the Speaker and as such no mandamus or direction can be given to delay or put any hindrance in such lawful action on the part of the Committee. 115. I am not convinced with the submission of the learned Attorney General that the Inquiry report in this case can be compared or equated with the sanction given under Section 197 of the Code of Criminal Procedure in respect of a public servant. The powers, duties and functions of the Inquiry Committee constituted under the, provisions of the Act and composed of high judicial functionaries which records its finding after giving an opportunity to the concerned Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end the life of the Inquiry Committee by a judicial fiat in the teeth of the express provisions of the statutory rules. 117. Further, in case a judicial review is permitted at this stage against the findings recorded by the Committee then in that case even findings of not guilty recorded by the Committee may also be challenged in Court by persons who had initiated the motion. It has been contended in this regard on behalf of the learned Counsel for the petitioner that no question of any challenge to the findings of not guilty recorded by the Committee is permissible as contemplated under Section 6(1) of the Act according to which if the report of the Committee contains a finding that the Judge is not guilty of any misbehaviour then no further steps shall be taken in either House Parliament in relation to the report. 1 find no force in such contention because this will only apply when such finding of not guilty is affirmed by the Court in judicial review also. -But in case such finding itself is reversed in judicial review, then the finding of not guilty by the Committee no longer exists and it would be taken as a finding of guilty recorded in judicial review. Thus, many problems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit or directions to direct Mr. Justice P. B. Sawant Committee, appointed under S. 3(2) of the Judges (Enquiry) Act, 1968 for short 'the Act', to supply a copy of its report to Hon'ble Mr. Justice V. Ramaswami before its submission to the Speaker of the Lok Sabha. She also sought direction to the said committee to withhold forwarding simultaneously the said report to the Speaker. The facts in nut shell are that the Speaker of 9th Lok Sabha constituted Mr. Justice P. B. Sawant Committee to enquire into the grounds of the motion prayed for the removal of Mr. Justice V. Ramaswami from the office as Judge of this Court with the allegations that he committed, in his administrative capacity as Chief Justice of Punjab Haryana High Court, financial irregularities which constitute misbehaviour within the meaning of Art. 124(4) of the Constitution of India. Mr. M. Krishna Swami filed Writ Petition No. 149 of 1992 and questioned the power and jurisdiction of the Speaker to admit the motion, the constitution of the committee and the procedure it adapted to investigate into the charges etc. The committee on assumption of its office while started investigation, the stay of the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge has a right and is entitled to judicial review, to question the correctness of the finding of proved misbehaviour he has right to move this Court under Art. 32 or Art. 136 or to the High Court under Art. 226. Without supply of the copy of the report he cannot adequately plead and prove its incorrectness to quash the same. Accordingly it is his contention that the supply of the report and grant of reasonable time are essential postulates sequal to avail judicial review. Accordingly the learned Judge is entitled to the copy of the report thereof. In support thereof he stated that the Parliamentary process commences only when the Speaker moves the motion as annexure in the house along with the address to be presented to the President for the removal of the Judge. Until then the Speaker remains a statutory authority, there is no express provision either in the Act or the judges Enquiry Rules, 1969 for short 'the Rules' or in the Constitution to provide the learned Judge with an opportunity of representation aid hearing on the floor of both the Houses of Parliament. We cannot predicate as to what procedure the Parliament may adapt in its address and it is also immune from ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no jurisdiction to interdict the proceeding before both the Houses of Parliament take up the motion for discussion. Interference later on would tantamount to interfere with the Parliamentary process. The Parliament alone is to decide as to how the motion is to be dealt with. Neither this Court nor any other Court in this country has any jurisdiction to deal with the matter or interfere with its decisions. Under these circumstances the learned Judge is entitled to a copy of the report and a right to judicial review of the same by this Court. Any construction otherwise would leave the learned Judge high and dry. Such a situation is anathema to rule of law and the cause of justice. Exercise of the power of judicial review would be consistent with the interpretation of the provision of the Constitution, the Act and the Rules as laid by this Court in SCJA's case. Any other view would run counter to the conclusions in SCJA's case. He also contended that it is a basic principle of natural justice that the person against whom findings are rendered is entitled to be heard and seek judicial review of the adverse findings. As a corollary he is entitled to be supplied with the cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or his removal. 125. It is next contended that the ratio in SCJA's case was only to oversee the process and progress of the Committee's proceedings before it sends its report. The function of the Committee ends with its submitting the report to the Speaker finding with proved guilt or non-guilt. By implication thereafter the report is not subject to judicial review. The judicial review after the order of removal passed by the President, in terms of Article 124(4), does not appear to be immuned from judicial review, be it by a civil suit under S. 9 of the Code of Civil Procedure, 1908 which did not expressly or by necessary implication barred it or in a proceeding under Art. 32 or Art. 226 of the Constitution. It is settled law by this Court that it is not bound by the technicalities of prerogative writs. Exercise of power under Art. 226 or Art. 32 of the Constitution is elastic to mete out justice. The nature of the remedy may be different, may not be reinstatement but may be damages. It is his further contention that expedition in disposal of the motion admitted by the Speaker is the animation from a reading of the relevant provisions prescribing 3 months time to send ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Art. 67(b), the Dy. Chairman of the Rajya Sabha under Art. 70(c), removal of the Speaker and Dy. Speaker of Lok Sabha under Art. 94(c) are not subject to judicial review, as they being purely of political process while for removal of a Judge, Arts. 124(4) and 124(5) are an amalgam of political and judicial process. The removal of the Chairman or Member of the Public Service Commission on a report by the Supreme Court under Art. 317 is not subject to judicial review under Art. 32, since the report is of the Supreme Court and not of a Committee of Judges. 128. The learned Attorney General and Sri Sibal are unanimous in their reply that the political process of removal of a Judge after the resolution per majority, in tune with Art. 124 (4) of the Constitution, is not subject to judicial review as the Parliament exercises judicial power but not legislative power. Its power of recording judicial finding whether or not guilty was entrusted to the Committee and it is its judgment. It cannot be prognosticated as to what procedure the Parliament would follow to discussing the misbehaviour of the learned Judge. Therefore, the judicial review would trench into conflict of jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of jurisdictions of this court and of the Parliament, it would be better to avoid an opinion at an inopportune stage. The Parliament while making the Act in the language of this court in SCJA's case adopted 'judicious blend or an admixture and amalgam of political and judicial process as held in Krishna Swami's case, to remove a Judge of the Constitutional court. The initiation of the process to remove a Judge was entrusted to the requisite members of either Rajya Sabha or Lok Sabha with stated grounds in the motion. The power was entrusted to the Speaker to admit or to refuse its admission and on its admission the duty to constitute a High Judicial Committee composed of a sitting Judge of the Supreme Court, one of the Chief Justices of the High Courts and a distinguished Jurist. In SCJA's case this court held that all the Actions of the Speaker under the Act are statutory one, outside the parliamentary proceedings and are subject to judicial review. 130. In my respectful view, the only question on the facts relevant for decision In this case is, whether the learned Judge is entitled to the supply of a copy of the report of the Committee to be submitted to Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incapacity of a Judge. Section 3(2) authorises the Speaker to constitute the Committee in terms thereof and, therefore, he ceases to have any hold over the committee. The Committee thus is a high judicial body consistent with the status of the Judge. The contention of the Attorney General that the Committee is a delegate of the Speaker is ill conceived. By operation of S. 6(1), if the report of the Committee contains a finding that the Judge is not guilty of misbehaviour or does not suffer from any incapacity, then no further steps should be taken in either House of the Parliament in relation to the report and there is legislative mandamus that the motion pending in either the House of the Parliament shall not be proceeded with. In other words the motion stands lapsed. The result also is envisaged in Rule 9(4). Rule 9 provides the procedure to submit the report. Sub-rule (4) of rule 9 provides thus: (4) Where the majority of the members of the Inquiry Committee makes a finding to the effect that the Judge. is guilty of a misbehaviour or that he suffers from an incapacity, but the third member thereof makes a finding to the contrary, the presiding officer of the Inquiry Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vious that the finding of a high judicial body, a final arbiter, must be respected; should receive finality and should not be tinkered with. Equally disclosure of even the minority view would effect not only the reputation of the Judge but also ward off collateral attack from any quarter nor liable to be questioned by any third party. It is held in Krishna Swami's case that neither the members of the Parliament, nor anybody have locus or right to participate and lead evidence against the Judge at the investigation done by the Committee. As a necessary corollary no one is entitled to impugn the correctness of the findings of 'not guilty' recorded by the Committee, absolving the Judge from the charge. Therefore, the legislature itself made a distinction between the consequences that would flow from recording a finding of guilty or exoneration and. the former is subject to political process, together with the contra finding of third member but in the latter case it is conclusive. As held in SCJA's case, no further steps based thereon should be taken up for consideration. In other words, it is immune from attack from any quarter whatsoever, when even the Parliament itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated by Rule 16.. It postulates that, when the committee unanimously or per majority thereof, finds that the Judge is guilty of any -misbehaviour or suffers from an incapacity, the Secretary of the Lok Sabha or Rajya Sabha, as the case may be, shall prepare the address in form II, copy of the motion shall be annexed to the address. They shall fix the date for consideration by each House and address may be supported by majority members in terms of Art. 124(4). Thus it is clear that the moment the report was signed by the committee, it did not, ipso facto, became the document of the Parliament but when the Speaker/ Chairman or both, as the case may be, caused the report laid on the floor of each House of Parliament together with the evidence and the motion in the manner prescribed in Rule 16, it becomes the document of the Parliament. Until then the Speaker/ Chairman holds the document in his statutory capacity under the Act. The anchor of Sri Nariman lost its hook. 134. The question then is whether the committee is a tribunal? In Indo- China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. Collector of Custom, (1964) 6 SCR 594 the facts were that under the Customs Act on proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore it with conflicting cases and that it has also to arrive at a conclusion as to how the dispute is ended. Prima facie, therefore, a Tribunal like this cannot be excluded from the scope of Art. 136. It was also further held that though the award proprio vigore is not enforceable, its life kindles into being, on acceptance by the government concerned and a notification was issued by the government in the manner Prescribed by law. It by itself is not a determinative factor to keep the award outside the purview of Art. 136 of the Constitution. In Associated Cement Co. Ltd. v. P N. Sharma, (1965) 2 SCR 366 , the question was whether the order passed by the government with the concurrence of the Labour Commissioner under the Punjab Welfare Officer Recruitment and Conditions of Service Rules, 1952 is a Tribunal within the meaning of Art. 136. This Court at pages 386 387 held thus:- The presence of all or some of the trappings of a court is really not decisive. The presence of some of the trappings may assist the determination of the question as to whether the power exercised by the authority which possesses the said trappings is the judicial power of the State or not. The main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Act 'powers of a civil court while trying the civil suit' under Code of Civil Procedure, 1908 in respect of enumerated matters, namely, 'to summon, and enforce the attendance of the witnesses and their examination, power of discovery and inspection or to direct them, production of documents, to receive evidence on oath, to issue commission for examination of the witnesses or the documents and such other prescribed matters'. Under S. 4(1) the Committee shall give reasonable opportunity to the Judge and the Advocate appointed under S. 3(9) to examine witnesses, right to examine, adjudication of evidence in proof or disproof of the charges and right to be heard in defence. Under Rule 10(1) the evidence should be recorded as per provision of the Code of Civil Procedure. The right to examine and cross-examine witnesses is a valuable right akin to a trial of dispute between two contending parties and their right to address the Committee on the evidence adduced is in proof or disproof of the charges to adjudge the issue in a judicious manner. The Committee thus has been empowered to adjudicate on the proof or disproof of the charges in accordance with the evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia v. Mohd. Ramzan Khan, (1991) 1 SCC 588 ), a bench of three Judges held (of course it is subject to the decision by the Constitution Bench, pending reference) that the disciplinary authority very often influenced by the conclusion of the enquiry officer and even by the recommendations relating to the nature of the punishment to be inflicted. With the 42nd amendment the delinquent officer is associated with the disciplinary enquiry not beyond the recording of evidence and submissions made on the basis of the matter to assist the enquiry officer has to come to his. conclusion. In case his conclusions are kept away beyond the enquiry with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him, though the same was made available to the punishing authority in the matter of reaching its conclusion, it is violative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew. The arena of controversy is whether, before the Parliament had taken up the motion for consideration or after the President passed an order of removal under Art. 124(4). As prefaced before the start of discussion that stage would set only if and when the learned Judge has chosen to seek judicial review. That would arise only when he has been supplied with a copy of the report. Without knowing what the contents of the report are; the reasoning in support of the findings of proved misbehaviour or other illegalities in the process of adjudication, can a party be foreclosed of legal remedy? In such a case is it not a non-issue? Without supply of the material, the foundation of legal injury, can he adequately and effectively plead, prove and disabuse the incorrectness of the finding. etc.? May be the learned Judge opt to avail the remedy on the floor of the House of Parliament. Does non-supply of the report not trench into offending the principles of natural justice? Is it not anathema to judicial process? The secrecy of the report of minority member's finding of 'guilt' is to protect the Judge but when the finding of guilt when adversely affects the Judge, can it be de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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