ppeal No 4447 of 1991 From the Judgment and Order dated 2441991 of the Madras High Court in Civil Revision Petition No 4769 of 1984
ECAgarwala for the Appellant
Mrs Jayashree Ahmed for the Respondent
The Judgment of the Court was delivered by RANGANATH MISRA CJ
Special leave granted
Appellant is the tenant of a premises located in Sivaka si within the State of Tamil Nadu to which the provisions of the Tamil Nadu Buildings Lease and Rent Control Act apply
The rental of the premises is Rs 275 per month
Respondents initiated action for eviction on the plea that there was wilful default in the matter of payment of rent and change of user
It was contended that the lease was residential but it had been used partly for commercial activity
The appellant took the stand that rent was not being collected every month since the respondents resided away from the place where the property is situated and every two to three months they used to come and collect rent at land lord s convenience
Two receipts were produced to support this stand
Rent was collected in one case for three months and in the other for two months at a time
Admittedly at the time of filing of the petition for eviction three months  rent had fallen due
So far as the 205 change of user was concerned it was denied by pleading that mixed use was the basis of the tenancy
The original authority dismissed the petition but that has been reversed in appeal and the reversal has been upheld by the High Court
Two contentions were raised before us i there is no case of wilful default particularly when the two receipts showed acceptance of rent for periods as pleaded by the tenant without demur and ii that the premises had been rented out also for business use and at any rate admittedly from 1973 there has been this change
Counsel for the respondents does not dispute that from 1973 there has been change of use
The petition for eviction is of 1980
It follows that for seven years no objection was raised for change of use and for the first time when evic tion was sought conversion was made the second ground
In these circumstances we are prepared to accept the submis sion advanced on behalf of the appellant that the landlords accepted the user to be also other than residential
Both parties relied upon a decision of this Court in the case of section Sundaram Pillai  Ors etc
VR Pattabiraman  Ors
   where default and wilful  default were distinctly treated
In the several statutes operating in the different States regulating the law relat ing to landlord and tenant wilful  default has been made the ground of eviction while default is not
We may also refer to a short but suggestive Order dated March 271991 of this court in Civil Appeal No 1367 of 1991 Premchand Banka vs A Vasanthrai Khatod  Ors to support our conclu sion
A situation where the landlord had consented to col lect rent for two to three months at a time non payment of rent for three months cannot constitute wilful default
Since in the present case default was of three months at time of filing of the case we are prepared on the basis of the evidence on record that it was not a case for wilful default
Accordingly the conclusion reached in appeal and upheld by the High Court would not be sustainable
We allow the appeal and reverse the Judgment of the High Court and dismiss the petition for eviction
We would however
like to add that judicial notice can be taken of the fact that rental has escalated everywhere and appropri ate rent in the present case should be raised to Rs 400 per month from 111992
The tenant should have a direction to pay the rent in advance from month to month as stated by him in the Court below and it should be by the end of every month
There will be no order as to COSTS
VPR Appeal allowed


Summary:
Upon a notice given by 108 members of the 9th Lok Sabha of a Motion for presenting an Address to the President for the removal of a sitting Judge of the Supreme Court for the alleged misconduct committed by him while he was functioning as Chief Justice of a High Court the Speaker of the Lok Sabha admitted the Motion and constituted a Committee con sisting of a sitting Judge of this Court Chief Justice of a High Court and a distinguished jurist in terms of Section 32 of the 
Subsequently the Lok Sabha was dissolved and its term came to an end
On its understanding that the Motion as well as the decision of the Speaker thereon had lapsed consequent on the dissolution of the Lok Sabha the Union government did not act in aid of the decision of the Speaker and notify that the services of the two sitting Judges on the Committee would be treated as actual service within the meaning of Para 11Bi of of the II Schedule to the Constitu tion
Thereupon a body called the Sub Committee on Judicial Accountability claiming to be a Sub Committee constituted by an All India Convention on Judicial Accountability to carry forward the task of implementing the resolutions of the conventions and the Supreme Court Bar Association seeking to prosecute the matter in the larger public inter est and in particular in the interests of litigant public filed two Writ Petitions before this Court
Two prayers common to both the petitions were first that the Union of India be directed to take immediate steps to enable the Inquiry Committee to discharge its functions under the and second that during the pendency of the proceedings before the Committee the con cerned Judge should be restrained from performing judicial functions and from exercising Judicial powers
It was contended on behalf of the petitioners that pending business lapsed on prorogation and as a general practice the House was 4 usually prorogued before it was dissolved but impeachment motions were sui generis in their nature and therefore they did not lapse that the question whether a motion lapsed or not was a matter pertaining to the conduct of the business of the House of which the House was the sole and exclusive master no aspect of the matter was justiciable before a Court and Houses of Parliament were privileged to be the exclusive arbiters of the legality of their proceed ings that it would be highly inappropriate that the Speaker should issue notice to a Judge and call upon him to appear before him that these proceedings could not be equated with disciplinary or penal proceedings and the Speaker would not decide anything against the Judge at that stage and would merely decide whether the matter would bear investigation that the constitutional machinery for removal of a Judge was merely a political remedy for judicial misbehaviour and did not exclude the judicial remedy available to the litigants to ensure and enforce judicial integrity that the right to move the Supreme Court to enforce fundamental rights was itself a fundamental right and that took within its sweep as inhering in it the right to an impartial judiciary with persons of impeccable integrity and character without which the fundamental right to move the court itself becomes barren and hollow that the court itself had the jurisdic tion nay a duty to ensure the integrity and impartiality of the members composing it and restrain any member who was found to lack in those essential qualities and attainments at which public confidence is built
Another Writ Petition was filed by an individual by way of a counter to the second prayer in the Writ Petitions filed by the SubCommittee on Judicial Accountability and the Supreme Court Bar Association
It was contended that till the Inquiry Committee actually found the concerned Judge guilty of charges there should be no interdiction of his judicial functions and that if such a finding was recorded then thereafter till such time as the Motion for the presen tation of the Address for the removal of the Judge was disposed of by the Houses of Parliament which should not be delayed beyond 180 days the President may ask the Judge concerned to recuse from judicial functions
Another Writ Petition was also filed by a practising Advocate challenging the constitutional validity of the as ultra vires Articles 100 105 118 121 and 1245 of the Constitution of India and seeking a declaration that the  Motion presented by 108 Members of Parliament for the removal of the Judges 5 had lapsed with the dissolution of the Lok Sabha
The peti tioner also sought the quashing of the decision of the Speaker admitting the Motion on the ground of denial of opportunity of being heard to the concerned Judge before the admission of Motion and constitution of the Committee by Speaker
A Transfer Petition was filed seeking the withdrawal by the Supreme Court to itself from the Delhi High Court the Writ Petition filed in the High Court where reliefs were similar to those prayed for in the Writ Petition filed by the practising Advocate
The Writ Petition was directed to be withdrawn to the Supreme Court and was heard along with other Writ Petitions
1t was contended on behalf of the petitioners in these Writ Petitions that before taking a decision to admit the motion and constituting a Committee for investigation it was incumbent upon the Speaker as a minimum requirement of natural justice to afford an opportunity to the Judge of being heard since such a decision had momentous consequences both to the Judge and to the judicial system as a whole and that any politically motivated steps to besmear a Judge would not merely affect the Judge himself but also the entire system of administration of justice and therefore it would greatly advance the objects and purposes of if the Judge concerned himself was given such a hearing that the Speaker had acted contrary to Constitutional practice that the manner in which he had admitted the motion smacked of malafides and since the Speaker had not entered appearance and denied the allega tions he must be deemed to have admitted them that having regard to the nature of the area the decision of the Court and its writ is to operate in the Court should decline to exercise its jurisdiction and that any decision rendered or any writ issued might ultimately become futile and infruc tuous as the constitution of and investigation by the com mittee were not nor intended to be an end by themselves culminating in any independent legal consequence but only a proceeding preliminary to and preceding the deliberations of the House on the motion for the presentation of an address to the President for the removal of a Judge which was indisputably within the exclusive province of the Houses of Parliament over which courts exercised no control or juris diction
On behalf of the Union of india it was contended that a combined reading of Articles 107 108 and 109 would lead irresistibly to the conclusion that upon dissolution of the House all bills would 6 lapse subject only to the exception stipulated in Article 108 that on first principle also it required to be accepted that no motion should survive upon the dissolution of the House unless stipulated otherwise under the Rules of proce dure and conduct of business the doctrine of lapse was a necessary concomitant of the idea that each newly constitut ed House was a separate entity having a life of its own unless the business of the previous House was carried over by the force of statute or rules of procedure and that the question whether a motion lapsed or not was to be decided on the basis of the provisions of law guiding the matter and the House itself was not its final arbiter and the Court alone had jurisdiction to examine and pronounce on the law of the matter
Disposing of the cases this Court HELD By majority Per Ray
J for himself Venkatacha liah Verma and Agrawal J J 11 Where there is a written Constitution which consti tutes the fundamental and in that sense a higher law and acts as a limitation upon the Legislature and other organs of the State as grantees under the Constitution the usual incidents of parliamentary sovereignty do not obtain and the concept is one of limited Government 
Judicial review is an incident of and flows from this concept of the fundamen tal and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under Constitution and that the judicial wing is the interpreter of the Constitution and therefore of the limits of authority of the different organs of the State
In a federal set up the judiciary becomes the guard ian of the Constitution
The inter pretation of the Consti tution as a legal instrument and its obligation is the function of the Courts
It is emphatically the province and duty of the judicial department to say what the law is
51 G H 52A D 12 In interpreting the constitutional provisions con cerning the judiciary and its independence the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution
Rule of law is a basic feature of the Constitutional fabric and is an integral part of the constitutional structure
Inde pendence of the judiciary is an essential attribute of Rule of law
31 D 13 In construing the Constitutional provisions the law and 7 procedure for removal of Judges in other countries afford a background and a comparative view
The solution must of course be found within our own Constitutional Scheme
But a comparative idea affords a proper perspective for the under standing and interpretation of the Constitutional Scheme
31 G H Barringtons Case 1830 Terrell vs Secretary of State for the Colonies and Another  referred to
Constituent Assembly Debates Vols
I to VI  pp 899900 Vol
VIII  pp
243 262 referred to
Halsbury s Laws of England 4th Ed
p 1108 She treet Judges on Trial  1976 pp
404 405 Rodney Brazier Constitutional Texts  1990 pp
606 607 Gall The Canadi an Legal System  1983 pp 184 186 189 Lane s Commentary on The Australian Constitution 1986 p 373 Mclelland Disciplining Australian Judges   at p 403 Henry J Abraham  The Judicial Process 3rd Ed
p 45 Robert J Janosik Encyclopeadia of the American Judicial System Vol II pp
575 to 578 The Impeachment of the Federal Judiciary Wrisley Brown Harvard Law Review 1912 1913 684 at page 698 The Judicial Process in Comparative Perspective  Clarendon Press Oxford 1989 at page 73 Erskine May s The Law Privileges Proceeding and Usage of Parliament Twenty first Edition London Butterworths 1989 MN Kaul and SL Shakdher in Practice and Procedure of Parliament referred to
21 It is not correct to say that the question whether a motion has lapsed or not was a matter pertaining to the conduct of the business of the House of which the House was the sole and exclusive master and that no aspect of the matter was justiciable before a Court
29 C 53 G 22 The question whether the motion has lapsed is a matter to be pronounced upon on the basis of the Constitu tion and the relevant rules
53 E 23 On such interpretation of the Constitutional provi sions as well as the  the Courts retain jurisdiction to declare that a motion for removal of Judge does not lapse on dissolution of the House
53F G Bradlaugh vs Gossett 18841  distinguished
8 AK Gopalan vs The State of Madras  Special Reference Case   referred to
Barton vs Taylor  Rediffuson Hong Kong Ltd vs Attorney General of Hong Kong   referred to
31 The constitutional process for removal of a Judge upto the point of admission of the motion constitution of the Committee and the recording of findings by the Committee are not strictly proceedings in the Houses of Parliament
The Speaker is a statutory authority under the Act
Upto that point the matter cannot be said to remain outside the Court s jurisdiction
66 E 32 The scheme of Articles 1244 and 5 is that the entire process of removal is in two parts the first part under clause 5 from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law Parliament s role being only legislative as in all the laws enacted by it the second part under clause 4 is in Par liament and that process commences only on proof of misbeha viour or incapacity in accordance with the law enacted under clause 5
Thus the first part is entirely statutory while the second part alone is the parliamentary process
61 D 33 The context and setting in which clause 5 appears along with clause 4 in Article 124 indicate its nature and distinguish it from Articles 118 119 and 121 all of which relate to procedure and conduct of business in Parliament
61 B C 34 The validity of law enacted by the Parliament under clause 5 of Article 124 and the stage upto conclusion of the inquiry in accordance with that law being governed entirely by statute would be open to judicial review as the parliamentary process under Article 1244 commences only after a finding is recorded that the alleged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under clause 5
For this reason the argument based on exclusivity of Parliament s jurisdiction over the process and progress of inquiry under the and consequently exclusion of this Court s jurisdiction in the matter at this stage does not arise
59 G H 60 A 41 Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any Judge is lifted upon a 9 motion for presenting an address to the President praying for the removal of a Judge as hereinafter provided 
The words motion  and as hereinafter provided  are obvious references to the motion for the purpose of clause 4 of Article 124 which in turn imports the concept of proved misbehaviour or incapacity
What lifts the bar under Article 121 is the proved  misbehaviour or incapacity
Clause 5 of Article 124 provides for an enactment of law for the purpose of investigation and proof of misconduct or incapac ity preceding the stage of motion for removal on the ground of proved  misbehaviour or incapacity under clause 4
56 H 57 A B 42 An allegation of misbehaviour or incapacity of a Judge has to be made investigated and found proved in accordance with the law enacted by the Parliament under Article 124 5 without the Parliament being involved upto that stage on the misbehaviour or incapacity of a Judge being found proved in the manner provided by that law a motion for presenting an address to the President for remov al of the Judge on that ground would be moved in each House under Article 1244 on the motion being so moved after the proof of misbehaviour or incapacity and it being for pre senting an address to the President praying for removal of the Judge the bar on discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct of the Judge and the further conse quences would ensue depending on the outcome of the motion in a House of Parliament
If however the finding reached by the machinery provided in the enacted law is that the allegation is not proved the matter ends and there is no occasion to move the motion in accordance with Article 1244
57 G H 58 A B 43 Thus prior proof of misconduct in accordance with the law made under Article 1245 is a condition precedent for the lifting of the bar under Article 121 against dis cussing the conduct of a Judge in the Parliament
Article 1244 really becomes meaningful only with a law made under Article 1245 without which the constitutional scheme and process for removal of a Judge remains inchoate
66 F 44 The bar in Article 121 applies to discussion in Parliament but investigation and proof of misconduct or incapacity cannot exclude such discussion
This indicates that the machinery for investigation and proof must neces sarily 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 limita 10 tion of Article 121
The policy appears to be that the entire stage upto proof of misbehaviour or incapacity beginning with the initiation of investigation on the alle gation being made is governed by the law enacted under Article 1245 and in view of the restriction provided in Article 121 that machinery has to be outside the Parliament and not within it
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 1245
Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbe haviour or incapacity has been proved
The enacted under article 1245 itself indicates that the Parliament so understood the integrated scheme of Arti cles 121 1244 and 1245
The general scheme of the Act conforms to this view
58 H 59 A D 45 It is not the law enacted under Article 1245 which abridges or curtails the parliamentary process or exclusivi ty of its jurisdiction but the Constitutional Scheme itself which by enacting clauses 4 and 5 simultaneously indi cated that the stage of clause 4 is reached and the proc ess thereunder commences only when the alleged misbehaviour or incapacity is proved in accordance with the law enacted under clause 5
It is only then that the need for discuss ing a Judge s conduct in the Parliament arises and there fore the bar under Article 121 is lifted
60 D E 51 If the motion for presenting an address for removal is envisaged by Articles 121 and 1244 on ground of proved misbehaviour or incapacity  it presupposes that misbeha viour or incapacity has been proved earlier
This is more so on account of the expression investigation and proof  used in clause 5 with specific reference to clause 4 indi cating that investigation and proof  of misbehaviour or incapacity is not within clause 4 but within clause 5
Use of the expression same session  in clause 4 without any reference to session in clause 5 also indicates that session of House has no significance for clause 5 ie investigation and proof  which is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha
61 F H 52 The significance of the word proved  before the expression misbehaviour or incapacity  in clause 4 of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission
The expression in clause 1 of Article 317 used for describing the ground 11 of removal is the ground of misbehaviour  while in clause 4 of Article 124 it is the ground of proved misbeha viour or incapacity 
62 A 53 Use of the word may  in clause 5 indicates that for the procedure for presentation of address  it is an enabling provision and in the absence of the law the gener al procedure or that resolved by the House may apply but the investigation and proof  is to be governed by the enacted law
The word may  in clause 5 is no impediment to this view
When a provision is intended to effectuate a right here it is to effectuate a constitutional protection to the Judges under Article 1244 even a provision as in Arti cle 1245 which may otherwise seem merely enabling becomes mandatory
The exercise of the power is rendered obligatory
The use of the word may  does not necessarily indicate that the whole of clause 5 is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapaci ty or not
62 D 62 G 63 E F State of Uttar Pradesh vs Joginder Singh  at 202 Punjab Sikh Regular Motor Service Moudhapara vs The Regional Transport Authority Raipur  Anr   referred to
Erederic Guilder Julius vs The Right Rev The Lord Bishop of Oxford  the Rev Thomas Tellusson Carter at 244 referred to
54 Similarly use of word motion  to indicate the process of investigation and proof in the  because the allegations have to be presented to the Speaker  does not make it motion in the House  not withstanding use of that expression in Section 6
Otherwise section 6 would not say that no further step is to be taken in case of a finding of not guilty 
It only means that when the allegation is not proved the Speaker need not commence the process under clause 4 which is started only in case it is proved
The Speaker is therefore a statutory authority under the Act chosen because the further process is parliamentary and the authority to make such a complaint is given to Members of Parliament
Moreover the enactment under Article 1245 cannot be a safe guide to determine the scope of Article 1245
64 A C 61 Article 1245 does not operate in the same field as Article 118 relating to procedure and conduct of business in Parliament
61C 12 62 Article 118 is a general provision conferring on each House of Parliament the power to make its rules of procedure
These rules are not binding on the House and can be altered by the House at any time
A breach of the rules amounts to an irregularity and is not subject to judicial review in view of Article 122
64 G 63 Article 1245 is in the nature of a special provi sion intended to regulate the procedure for removal of a Judge under Article 1244 which is not a part of the normal business of the House but is in the nature of special business
It covers the entire field relating to removal of a Judge
Rules made under Article 118 have no application in this field
64 H 65 A 64 Article 1245 has no comparison with Article 119
Articles 118 and 119 operate in the same field viz normal business of the House
It was therefore necessary to specifically prescribe that the law made under Article 119 shall prevail over the rules of procedure made under Article 118
Since Articles 118 and 1245 operate in different fields a provision like that contained in Article 119 was not necessary and even in the absence of such a provision a law made under Article 1245 will override the rules made under Article 118 and shall be binding on both the Houses of Parliament
A violation of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 1221
65 B C 71 Neither the doctrine that dissolution of a House passes a sponge over parliamentary slate nor the specific provisions contained in any rule or rules framed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a Judge under Article 124 because Article 1245 and the law made there under exclude the operation of Article 118 in this area
49 F Purushothaman Nambudiri vs The State of Kerala 1962 Suppl
1 SCR 753 referred to
72 The law envisaged in Article 1245 is parliamentary law which is of higher quality and efficacy than rules made by the House for itself under Article 118
Such a law can provide against the doctrine of lapse
50 H 731n the constitutional area of removal of a Judge the law made under Article 1245 must be held to go a little further and to exclude the operation of the Rules under Article 118 and no ques 13 tion of repugnance could arise to the extent the field is covered by the law under Article 1245
51 C State of Punjab vs Sat Pal Dang  Ors   relied on
81 The reflects the consti tutional 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 proc ess 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 inde pendence
The provisions of the do not foul with the constitutional scheme
65 B C 64 C 82 The Speaker while admitting a motion and constitut ing a Committee to investigate the alleged grounds of misbe haviour or incapacity does not act as part of the House
The House does not come into the picture at this stage
The provisions of the are not uncon stitutional as abridging the powers and privileges of the House
The is constitutional and is intra vires
66 G H 91 The is law enacted under Article 1245 which provides against doctrine of lapse
92 The effect of sections 31 and 2 and 62 of the  is that the motion should be kept pending till the committee submits its report and if the committee finds the Judge guilty the motion shall be taken up for consideration
Only one motion is envisaged which will remain pending
No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported
50 G 93 Section 3 of the Act applies to both the Houses of Parliament
The words shall keep the motion pending cannot have two different meanings in the two different contexts
It can only mean that the consideration of the motion shall be deferred till the report 14 of the Committee implying that till the happening of that event the motion will not lapse
Therefore such a motion does not lapse with the dissolution of the House of Parlia ment
51 D 10
At the stage of the provisions when the Speaker admits the motion under section 3 of the  a Judge is not as a matter of right entitled to a notice
The scheme of the statute and the rules made there under by necessary implication exclude such a right
But that may not prevent the Speaker if the facts and circum stances placed before him indicate that hearing the Judge himself might not be inappropriate might do so
But a decision to admit the motion and constitute a Committee for investigation without affording such an opportunity does not by itself and for that reason alone vitiate the deci sion
68 E G 111 It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct and any conduct which tends to impair public confi dence in the efficiency integrity and impartiality of the court is indeed forbidden
But the proposition that apart from the constitutional machinery for removal of a Judge the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks
The court would then indeed be acting as a tribunal for the removal of a Judge and is productive of more problems than it can hope to solve
69 C 70 H Sampath Kumar  Ors
vs Union of India  Ors  referred to
Corpus Juris Secundum VoI48A referred to
112 The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted
The entire Constitutional Scheme including the provisions relating to the process of removal of a Judge are to be taken into account for the purpose of considering this aspect
Since the Constitutional Scheme is that the Judge s conduct cannot be discussed even in the Parliament which is given the substantive power of removal till the alleged misconduct or incapacity is proved  in accordance with the law enacted for this purpose it is difficult to accept that any such discussion on the conduct of the Judge or any evaluation or inference as to its 15 merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constitut ed under the statute for this purpose
Therefore it is difficult to accept that there can be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in clauses 4 and 5 of Article 124 read with Article 121
No authority can do what the Constitution by necessary implication forbids
71 B F 113 The question of propriety is however different from that of legality
Whether the Judge should continue to function during the intervening period is to be covered by the sense of propriety of the concerned Judge himself and the judicial tradition symbolised by the views of the Chief Justice of India
It should be expected that the Judge would be guided in such a situation by the advice of the Chief Justice of India as a matter of convention unless he himself decided as an act of propriety to abstain from discharging judicial functions during the interregnum
It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspensionIt would also be reasonable to assume that the Chief Justice of India is expected to find a desirable solution in such a situation to avoid embarrass ment to the concerned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the Chief Justice of India be of the view that in the interests of the institution of judiciary it is desira ble for the Judge to abstain from judicial work till the final outcome under Article 1244 he would advise the Judge accordingly and the concerned Judge would ordinarily abide by the advice of the Chief Justice of India
All this is however in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive t the Chief Justice of India for this purpose
71 G 72 A C E 12
Even on the allegations made in the petition and plea of malafides which require to be established on strong grounds no such case is made out
A case of malafides cannot be made out merely on the ground of political affiliation of the Speaker either
That may not be a sufficient ground in the present context
At nil events as the only statutory authority to deal with the matter doctrine of statutory exceptions or necessity might be invoked
74 B C 13
The law as to standing to sue in public interest actions has 16 undergone a vast change over the years and liberal standards for determining locus standi are now recognised
The present matter is of such nature and the constitutional issues of such nature and importance that it cannot be said that members of the Bar and particularly the Supreme Court Bar Association have no locus standi in the matter
An elaborate re survey of the principles and precedents over again is unnecessary
Suffice it to say that from any point view the petitioners satisfy the legal requirements of the standing to sue
74 E F SP Gupta  Ors
vs Union of India  Ors etc
 1982 2 SCR 365 relied on
Certain submissions advanced on the prayer seeking to restrain the judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the Judge is entitled
While the members of the bar may claim to act in public interest they have at the same time a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpi tude the Judge does not suffer irreparably in the very process
The approach should not incur the criticism that it was calculated to expose an able and courteous Judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so
The level of the debate both in and outside the Court should have been more decorous and dignified
Propriety required that even before the charges are proved in the only way in which it is permitted to be proved the Judge should not be embarrassed
The constitutional protection to Judges is not for their personal benefit but is one of the means of protecting the judiciary and its independence and is therefore in the larger public interest
Recourse to constitutional methods must be adhered to if the system were to survive
74 G 75 A C 151 The interpretation of the law declared by this Court that a motion under section 32 of the Judges In quiry Act 1968 does not lapse upon the dissolution of the House is a binding declaration
If the law is that the motion does not lapse there can be no occasion for the House to say so at any time and it is erroneous to assume that the Houses of Parliament would act in violation of the law since the interpretation of the law is within the exclusive power of the courts
76 E 17 252 If the House is not required to  consider this question since the parliamentary process can commence only after a finding of guilt being proved the further question of a futile writ also does not arise
The point that the House can decide even after a finding of guilt that it would not proceed to vote for removal of the Judge is not germane to the issue since that is permissible in the Constitutional Scheme itself under Article 1244 irrespective of the fact whether Article 1245 is a mere enabling provision or a constitutional limitation on the exercise of power under Article 124 4
60 B C 153 The Union Government has sought to interpret the legal position for purpose of guiding its own response to the situation and to regulate its actions on the Speaker s decision
That understanding of the law is unsound
76 G 154 No specific writ of 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 correct constitu tional position and leave the different organs of the State to consider matters falling within the orbit of their re spective jurisdiction and powers
76 H 77 A 155 In the circumstances the question of Court de clining to exercise its jurisdiction on the ground that the Judgment rendered and Writ issued by it would become infruc tuous does not arise
31 A C 77 A Per Sharma J dissenting 11 On a close examination of the Constitution it is clear that a special pattern has been adopted with respect to the removal of the members of the three organs of the State
The Executive the Legislature and the Judiciary at the highest level and this plan having been consciously included in the Constitution has to be kept in mind in construing its provisions
The approach should be that when a question of removal of a member of any of the three wings at the highest level ie the President the Members of the Parliament and the State Legislatures and the Judges of the Supreme Court and the High Courts arises it is left to an organ other than where the problem has arisen to be decid ed
Consistent with this pattern Clause 4 of Article 124 in emphatic terms declares that a Judge of the Supreme Court or the High Court shall not be removed from his office except on a special majority of the Members of each House of Parliament
Both the Executive and the Judiciary 18 are thus excluded in this process
The scheme cannot be construed as lack of trust in the three organs of the State
There are other relevant considerations to be taken into account while framing and adopting a written Constitution which include the assurance to the people that the possibil ity of a subjective approach clouding the decision on an issue as sensitive as the one under consideration has been as far eliminated as found practicable in the situation
And where this is not possible at all it cannot be helped and has to be reconciled by application of the doctrine of necessity which is not attracted in the instant case
81 F H 82 D EF G A11 Party Hill Leaders Conference vs MA Sangma  at 411 referred to
The Federalist Hamilton referred to
12 There cannot be two opinions on the necessity of an independent and fearless judiciary in a democratic country like ours but it does not lead to the further conclusion that the independence of judiciary will be under a threat unless the matter of removal of Judges even at the highest level is not subjected to the ultimate control of Courts
Great care was taken by the framers of the Constitution to this aspect and the matter was examined from every possible angle before adopting the scheme as laid down
So far as the district courts and subordinate courts are concerned the control has been vested in the High Court but when it came to the High Court and Supreme Court Judges it was considered adequate for the maintenance of their independ ence to adopt and enact the Constitution as it is found now
There is no reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and there is no ground for suspicion that the Members of Parliament or their representatives the Speaker and the Chairman shall not be acting in the true spirit of the Constitutional provisions
The mandate of the Constitution is binding on all
100 B E 21 The exercise of power under clause 4 was not made conditional on the enactment of a law under clause 5 and the reason for inserting clause 5 in Article 124 was merely for elaborating the provisions
Clause 4 does not state that the misbehaviour or the incapacity of the Judge will have to be proved only in accordance with a law to be passed by the Parliament under clause 5 Clause 4 would continue to serve the purpose as it does now without any 19 amendment if clause 5 were to be removed from the Consti tution today
There is no indication of any limitation on the power of the Parliament to decide the manner in which it will obtain a finding on misbehaviour or incapacity for further action to be taken by it
Clause 5 merely enables the parliament to enact a law for this purpose if it so chooses
88 E 88 A 89 A 22 The word may  has been sometimes understood in the imperative sense as shall  but ordinarily it indicates a choice of action and not a command
In the present context there is no reason to assume that it has been used in its extraordinary meaning
88 F 3
The object of Article 121 is to prevent any discus sion in Parliament with respect to the conduct of a Judge of the Superior Courts except when it cannot be avoided
The Article accordingly prohibits such a discussion except upon a motion for presenting an address to the President for removal of a Judge
89 B 41 The expression motion has not been defined in the 
The Lok Sabha Rules framed under Article 118 of the Constitution deal with motions
There are separate rules of procedures for conduct of business adopted by the Rajya Sabha
Section 31 of the Act states that if a notice of motion is given for presenting an address to the President for the removal of a Judge the Speaker or the Chairman as the case may be after consult ing such persons as he deems fit as also such relevant materials which may be available to him either admit the motion or refuse to admit the same
The manner in which this section refers to motion in the Act for the first time without a definition or introduction clearly indicates that it is referring to that motion which is ordinarily understood in the context of the two Houses of Parliament attracting their respective rules
Section 3 does not speci fy as to how and to whom the notice of motion is to be addressed or handed over and it is not quite clear as to how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account
Therefore the provi sions of the Act have to be read alongwith some of the Lok Sabha Rules
Rules 185 186 and 137 which are relevant for the purpose should be treated to be supplementary to the Act
90 D G 91 B 42 Sub section 2 of Section 3 which is of vital importance in the present context says that if the motion referred to in subsection 1 is admitted the Speaker shall keep the motion pending 20 and constitute a Committee for investigation into the alle gations
191 C 43 The situs where the motion is pending is almost conclusive on the issue whether the House is seized of it or not
The Act does not leave any room for doubt that the motion remains pending in the House and not outside it
This is corroborated by the language used in proviso to Section 32 which deals with cases where notices of mo tion under Section 31 are given on the same date in both Houses of Parliament
It says that in such a situation no Committee shall be constituted unless the motion has been admitted in both Houses and where such motion has been admitted in both Houses the Committee shall be constitut ed jointly by the Speaker and the Chairman
It is not an inadvertent reference in the Act of the motion being pending in the House the Act and the Rules made thereunder envisage and deal with a motion which is admitted in the House and remains pending there to be taken up again when the date is fixed by the Speaker on receipt of the report from the Committee
The language throughout the Act has been consistently used on this premise and is not capable of being ignored or explained away
91 D G H 92 A C D 44 The scope of the Act and the Rules is limited to the investigation in pursuance of a motion admitted by the Speaker
At the conclusion of the investigation the Commit tee has to send the report to the Speaker or the Chairman as the case may be along with a copy of the original Mo tion
If the finding goes against the Judge the Motion the same original Motion together with the report would be taken up for consideration by the House where the Motion is pending and the address and the Motion would be put to vote together in each House of Parliament
What the Act and the Rules contemplate is the original Motion to be taken up for consideration by the House and if this Motion is held to have exhausted itself on admission by the Speaker nothing remains on which the Act would operate
92 E G 45 Thus the concept of the original Motion being pending in the House to be taken up for debate and vote on the receipt of the report of the Committee is the life and soul of the Act and if that Motion disappears nothing remains behind to attract the Act
This idea runs through the entire Act and the Rules and cannot be allowed to be replaced by a substitute
The existence of a Motion pending in the House is a necessary condition for the application of 21 the Act
Bereft of the same the Act does not survive
It is therefore not permissible to read the Act so as to mean that the House is not seised of the Motion and that it does not have anything to do with the inquiry pending before the Committee until the report is received
If clauses 4 and 5 of Article 124 are construed otherwise the Act will have to be struck down as ultra vires or in any event inopera tive and infructuous and on this ground alone the Writ Petitions are liable to be dismissed
92 H 93 A B 51 The mandate of the Constitution against discussion on the conduct of a Judge in the House is for everybody to respect and it is the bounden duty of the Speaker to en force it
He has to ensure that Article 121 is obeyed in terms and spirit
The pendency of the motion in the House cannot be a ground to violate Article 121 and the apprehen sion that if the motion is held to be pending in the House on its admission the object of Article 121 would be defeat ed is misconceived
93 C F 52 The wider proposition that the House was seized of the matter so effectively as to entitle every member to demand a discussion in the House at any stage will not only violate Article 121 but also offend the provisions of the 1968 Act
It is not correct to assume that if the right of the individual member to insist on immediate discussion is denied the consequence will be to deprive the Parliament of the control of the motion
The Speaker may consult other persons before admitting the motion and while so doing he may consult the members of the House also but without permitting a discussion in the House
The consultation which the Act permits is private in nature not amounting to a public discussion while the object of Article 121 is to prevent a public debate
It may also be open to the Speaker to consult the House on a legal issue which can be answered without reference to the conduct of Judge in ques tion as for example the issue involved in the instant case whether on account of dissolution of the old House the Motion has lapsed and the Committee of Inquiry is defunct
What is prohibited is not every matter relating to the removal of a Judge the bar is confined to a discussion with respect to the conduct of a Judge in the discharge of his duties
95 E H 96A 53 There is no justification for interpreting such portion of the 1968 Act which directed or declared the initial motion admitted by the Speaker to remain pending in the House as creating legal fiction limited for the purpose of ensuring that the bar under Article 121 was not lifted prematurely
96 B 22 East End Dwellings Co Ltd And Finsbury Borough Coun cil  referred to
54 A close reading of the entire Act indicates that the language therein was consciously chosen to make the House seized of the matter and consequently it became necessary to include the provision directing the motion to remain pending for the purpose of preventing a premature discus sion
The Act has thus very successfully respected both Articles 124 and 121 in their true spirit by neatly harmo nising them
97 B 55 Parliament is in control of the matter from the very beginning till the end
By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter the House is brought in con trol of the proceeding through its representative the Speaker or the Chairman
The ground of proved misbehaviour or incapacity is necessary only for putting the matter to vote in the House under clause 4 and is not a condition precedent for initiating a proceeding and taking further steps in this regard 97 G H 98 A 56 It is a well established practice for a larger body to entrust investigations to a smaller body for obvious practical reasons and such an exercise cannot be characte rised as indulging in abnegation of authority
It could have asked a Parliamentary Committee to enquire into the allega tions or employed any other machinery for the purpose
98 D 57 So long as the statute enables the House to maintain its control either directly or through the Speaker the entrustment of the investigation does not amount to abdica tion of power
It is a case where the Parliament has taken a decision to respect the verdict of the Committee in favour of the Judge consistently with clause 4 and no fault can be found
199 B State of Uttar Pradesh vs Batuk Deo Pati Tripathi and Anr  referred to
58 The House which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted
If it is held that the Committee is an independent statutory body not subject to the control of the House 23 directly or through the Speaker then the Act may be ren dered unworkable
Besides this would lower the dignity of the Chief Justice of India by providing a machinery consist ing of 5 or 4 Judges to sit in appeal over him
If the Committee is held to be functioning under the supervision and control of the Parliament with a view to aid it for the purpose of a proceeding pending in the House it will be the Parliament which will be in control of the proceeding and not the Committee
99 E F H 61 When even after a verdict against the Judge is returned by the Committee the Parliament or for that matter any of the two Houses can refuse to vote in favour of the Motion for removal of a Judge and the Court would not have any jurisdiction to interfere in the matter it is not conceivable that at the intermediate stage of investigation the Court has got the power to intervene
This is because if the control of the House continues on the proceeding throughout which can be exercised through the Speaker it cannot be presumed that the Court has a parallel jurisdic tion which may result in issuance of contradictory direc tions
Besides the Court cannot be expected to pass orders in the nature of step in aid where the final result is beyond its jurisdiction
Any order passed or direction issued by this Court may result in merely an exercise in futility and may cause a situation embarrassing both for the highest judicial and legislative authorities of the country
The Constitution cannot be attributed with such an intention
101 A C 62 In the circumstances the courts including this Court do not have any jurisdiction to pass any order in relation to a proceeding for removal of a Judge of the superior courts
101 C 7
No opinion is expressed on the controversy whether the Motion lapsed or not on the dissolution of the earlier House as the issue is for the Lok Sabha to decide
102 E 8
This Court cannot pass any order whether permanent or temporary on the prayer that the respondent No 3 the concerned Judge should not be allowed to exercise his judicial powers
102 F 91 Although the powers of State have been distributed by the Constitution amongst the three limbs ie the Legis lature the Executive and the Judiciary the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas
80F G 24 Smt
Indira Gandhi vs Raj Narain at p 415 referred to
92 Generally questions involving adjudication of disputes are amenable to the jurisdiction of the courts but there are exceptions not only those covered by specific provisions of the Constitution in express terms but others enjoying the immunity by necessary implication arising from established jurisprudential principles involved in the Constitutional scheme
81 C 10
It is permissible to take into consideration the entire historical background of the provisions of the Con stitution and the Act as aid to interpretation
84 C Bengal Immunity Company vs The State of Bihar at 632  633 B Prabhakar Rao vs State of Andhra Pradesh 1985 Suppl 2 SCR 573 referred to
Heydon s case 76 ER 637 Eastman Photographic Materi al Company vs Comptroller General of Patents LR  referred to