on Civil No 491 of 1991
Under Article 32 of the Constitution of India WITH TRANSFER PETITION CIVIL No 278 of 1991
Under Article 139 Ai of the Constitution of India WITH WRIT PETITION CIVIL Nos
541542  56091 G Ramaswamy Attorney General Altar Ahmad Addl
Solicitor General Shanti Bhushan Ram Jethmalani PP Rao Kapil Sibal PRKrishnan Ms Indira Jaisingh Ashok Desai Hardev Singh PS Poti Danial Latifi Rajinder Sachhar MK Ramamurthy RK Garg SK Dholakia Santosh Hegde VN Ganpule Tapas Ray NB Shetye Jayant Bhushan Mohan Rao Prashant Bhushan Ms Kamini Jaiswal AK Srivastava Manoj Wad Ms Rashmi Kathpalia Ms Nina Dikshit EMS Anam Rajiv K Garg ND Garg GD Sharma Sudhir Walia AM Khanwilkar Mrs Anil Katiyar Ms A Subhashini RS Suri M Veerappa KR Nambiar Harish Uppal appeared in person and PH Parekh for the appearing parties
The Judgment of the Court was delivered by BC RAY J
These writ petitions raise certain consti tutional issues of quite some importance bearing on the construction of Articles 121 and 124 of the Constitution of India and of the The Judges 25 Inquiry Act 1968 even as they in the context in which they are brought are somewhat unfortunate
Notice was given by 108 members of the 9th Lok Sabha the term of which came to an end upon its dissolution of a Motion for presenting an Address to the President for the removal of Mr Justice VRamaswami of this Court
On 12th March 1991 the motion was admitted by the then Speaker of the Lok Sabha who also proceeded to constitute a Committee consisting of Mr Justice PB Sawant a sitting Judge of this Court Mr Justice PD Desai Chief Justice of the High Court of Bombay and Mr Justice O Chinappa Reddy a distinguished jurist in terms of Section 32 of The 
The occasion for such controversy as is raised in these proceedings is the refusal of the Union Government to act in aid of the decision of the Speaker and to decline to notify that the services of the two sitting Judges on the Committee would be treated as actual service within the meaning of Para 11b i of of the II Schedule to the Constitu tion
It is said that without such a notification the two sitting Judges cannot take time off from theft court work
The Union Government seeks to justify its stand on its understanding that both the motion given notice of by the 108 Members of the Lok Sabha for presenting an Address to the President for the removal of the Judge concerned as well as the decision of the Speaker of the 9th Lok Sabha to admit the motion and constitute a Committee under the provisions of the have lapsed with the dissolution of the 9th Lok Sabha
Constitutional issues of some importance therefore arise as to the constitutional and the legal position and status of a Motion for the removal of a Judge under a law made pursuant to Article 1245 of the Constitution and as to whether the Doctrine of Lapse would apply to such a Motion upon the dissolution of the Lok Sabha and whether in view of the contention that such motions for removal im peachment etc
of holders of high constitutional offices are in their very nature politically introduced debated and decided in the Houses of Parliament and not elsewhere the matters arising out of or relating to a Motion for removal of a Judge in either House of the Parliament are at all justiciable before courts of law
It is also urged that even if these issues have some degree of adjudicative disposition and involve some justiciable areas the Court should decline to exercise jurisdiction as its decision and its writ might become infructous in view of the fact that in the ultimate analysis the final arbiter whether at all any Address is to be presented rests exclusively with the Houses of Parliament and which are wholly outside the purview of the Courts
The foregoing serves to indicate broadly the com plexities of the constitutional issues on which the Court is invited to pronounce and as in all constitutional litiga tion the views inevitably tend to reflect a range of policy options in constitutional adjudications and in some meas ure value judgments
Writ Petition No 491 of 1991 is by a body called the SubCommittee on Judicial Accountability represented by its convener Sri Hardev Singh a Senior Advocate of this Court
Petitioner body claims to be a Sub Committee consti tuted by an All India Convention on Judicial Accountabili ty to carry forward the task of implementing the resolu tions of the conventions
Writ Petition No 541 of 1991 is by the Supreme Court Bar Association represented by its Honorary Secretary
The Bar Association seeks to prosecute this petition in the larger public interest and in particu lar in the interests of litigant public
The two prayers common to both the petitions are first that the Union of India be directed to take immediate steps to enable the Inquiry Committee to discharge its functions under the The  and secondly that during the pendency of the proceedings before the Committee the learned Judge should be restrained from performing judicial func tions and from exercising Judicial powers
Writ Petition No 542 is by a certain Harish Uppal
This writ petition is more in the nature of a counter to the second prayer in the WP No 5411991 and WP No 4911991
Petitioner Sri Harish Uppal says that till the Inquiry Committee actually finds the learned Judge guilty of the charges there should be no interdict of his judicial func tions and that if such a finding is recorded then thereafter till such time as the Motion for the presentation of the Address for the removal of the Judge disposed of by the Houses of Parliament which petitioner says should not be delayed beyond 180 days the President may ask the Judge concerned to recuse from judical functions
In Writ Petition No 5601991 brought by Shyam Ratan Khandelwal a practising Advocate the constitutional valid ity of the is challenged as ultra vires Articles 100 105 118 121 and 1245 of the Consti tution of India
It also seeks a declaration that the Motion presented by 108 Members of Parliament for the removal of the Judge has lapsed with the dissolution of the 9th Lok Sabha
It also seeks quashing of the decision of the Speaker admitting the Motion on the ground that an opportunity of being heard had been denied to the Judge before the Speaker admitted the Motion and proceeded to constitute a Committee
On the question of the validity of The  27 1968 the petitioner contends that the law properly construed vests the powers of admitting a Motion and of constituting a Committee under Section 3 in the Speaker in his capacity as Speaker of the House and subject to the well known and well settled principles of law
procedure and conventions of the Houses of Parliament and the statute does not depart from these principles
On the contrary the statute admits of a construction which accords with the powers and privileges of the House and that the Motion even at that stage of admis sion would require to be debated by the House
It is urged that if that be  the construction which the language of the statute admits then there should be no vice of unconstitu tionality in it
But if the statute is construed to vest such power exclusively in the Speaker to the exclusion of the House the statute on such constitution would be uncon stitutional as violative of Articles 100 1 105118 and 121 of the Constitution
Transfer Petition No 2681991 is for the withdrawal by this Court to itself from the High Court of Delhi the Writ Petition Civil No 10611991 in the Delhi High Court where reliefs similar to those prayed for by Sri Khandelwal in WP Civil No 5601991 are sought
The prayer for trans fer has not yet been granted only the further proceedings in the High Court are stayed
But full dress arguments in all these matters have been heard
It is appropriate that this writ petition should also be formally withdrawn and finally disposed of along with the present batch of cases
All that is necessary is to make a formal order withdrawing WP Civil No 10611991 from the Delhi High Court which we hereby do
Certain allegations of financial improprieties and irregularities were made against Justice V Ramaswami when he was the Chief Justice of the High Court of Punjab  Haryana
There were certain audit reports concerning certain items of purchases and other expenditure
The then Chief Justice of India Justice Sabyasachi Mukharji took note of the reports in this behalf and of representations submitted to him in this behalf and advised Justice Ramaswami to abstain from discharging judicial functions until those allegations were cleared
Thereafter a Committee of three Judges was constituted by the then Chief Justice of India to look into the matter and to advise him whether on the facts Justice Ramaswami might be embarrassed in discharging judicial functions as a Judge of this Court
The Committee tendered its advice to the Chief Justice
It noted that Justice Ramaswami had declined to acknowledge the jurisdic tion of any Committee to sit in judgment over his conduct
The Committee accordingly abstained from an inquiry on the charges but
on an evaluation of the matter before it expressed the view that as long as the charges of 28 improper conduct involving moral turpitude were not estab lished in the various enquiries then pending the operation of the constitutional warrant appointing him a Judge of the Court could not be interdicted
Thereafter in February 1991 108 Members of the Lok Sabha presented a Motion to the Speaker of the 9th Lok Sabha for Address to the President for the removal of the learned Judge under Article 1244 of the Constitution read with the provisions of the 
On 1231991 the Speaker of the Lok Sabha in purported exercise of his powers under Section 3 of the said Act admitted the Motion and constituted a Committee as aforesaid to investigate the grounds on which the removal was prayed for
Soon after the decision of the Speaker to admit the Motion and constitute a Committee to investigate the charges was made the term of the Ninth Lok Sabha came to premature end upon its dissolution
The petitioners question the legality of the Speaker s order and assert that at all events the Motion had lapsed with the dissolution of the House
This contention is supported by the Union of India
They say that the effect of dissolution of the Ninth Lok Sabha is to pass a sponge across the Parliamentary slate and all pending motions lapse
The motion for removal it is urged is no exception
We have heard Sri Shanti Bhushan Sri Ram Jethmala ni Sri PP Rao Sri RK Garg and Ms Indira Jaising learned senior counsel in support of the prayers in writ petitions Nos 491 and 541 of 1991 filed by the Sub Commit tee on Judicial Accountability and the Supreme Court Bar Association respectively Sri G Ramaswamy learned Attorney General for the Union of India Sri Kapil Sibal for the petitioners in writ petition No 56091 and transfer peti tion No 27891
Sri Harish Uppal petitioner in person in writ petition No 54291 has filed his written submissions
The arguments of the case covered a wide constitutional scheme relating to the removal of members of the superior judiciary in India and tO the problems of justiciability of disputes arising therefrom
We shall refer to the arguments when we assess the merits of these contentions
The contentions urged at the hearing in support of the petitions which seek enforcement of Speaker s decision as well as those urged in support of the petitions which say that the Motion has lapsed can be summaried thus 29 Contention A The motion for removal of the Judge moved by 108 Members of Parliament as well as the purported decision of the Speaker to admit that motion and to constitute a committee to investigate into the grounds on which removal is sought have lapsed upon the dissolution of the 9th Lok Sabha
The general rule is that no House of Parliament can seek to bind its successor
All pending business at the time of dissolution of House lapses
A motion for removal of a judge is just another motion and perishes with the expiry of the term or the earlier dissolution of the House
The question whether the motion for the remov al of the judge has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive judge
No aspect of the matter is justiciable before Court
Contention B The constitutional process of removal of a Judge both in its substantive and procedural aspects is a political process within the exclusive domain of the Houses of Parliament
The conduct of the Speaker in regulating the procedure and business of the House shall not be subject to the jurisdiction of any Court
The Speaker of the Lok Sabha in the exercise of his powers under the  18 acts in an area outside the courts  jurisdiction
There is nothing in the which detracts from this doctrine of lapse
On the contrary the provi sions of the Act  are consistent with this Constitutional position
Contention C Article 1245 pursuant to which the  is a mere enabling provi sion
Prior proof of misconduct is not a condition precedent before the bar under Article 121 against the discussion of the conduct of the Judge is lifted
Contention D The action of the Speaker in admitting the notice of motion without reference to the House and constituting a committee for inves tigation without the support of the decision of the 30 House is ultra vires Articles 1001 105 121 and the rules made under Article 118 of the Constitution
The provisions of the  1968 can be read consistently with the Consti tutional Scheme under the aforesaid Articles
But if the provisions of the Act are so con strued as to enable the Speaker to exercise and perform those powers and functions without reference to and independently of the House then the provisions of the Act would be uncon stitutional
Contention E
The decision of the Speaker to admit the motion and to constitute a committee for investigation is void for failure to comply with the rules of natural justice as no oppor tunity admittedly was afforded to the Judge of being heard before the decision was taken
Contention F  The process of removal by means of a motion for address to the President is a political remedy
But the fundamental right to move the Supreme Court for enforcement of fundamental rights take within its sweep the right to access to a court comprising of Judges of sterling and unsullied reputation and integri ty which is enforceable
This judicial remedy is independent of the constitutional remedy and that the court has jurisdiction to decide as to its own proper constitution
In exercise of this jurisdiction it should examine the grounds of the alleged misbehaviour and re strain the Judge from judicial functioning
Contention G  The Speaker s decision is vitiated by mala fides and oblique and collateral motives
Contention H  The Supreme Court Bar Association and the Sub Committee on Judicial Accountability the petitioners in Writ Petition No 491 of 1991 and Writ Petition No 541 of 1991 respective ly do not have the requisite standing to sue and the writ petitions are accordingly not maintainable at their instance
31 Contention L  At all events even if the Speaker is held to be a statutory authority acting under the Statute and not as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the Court any judgment rendered and writ issued by this Court have the prospect of being infructuous in view of the undisputed constitutional position that in the ultimate analysis the decision to adopt or turn down the motion is exclusively within the power of the House and the Court would have no jurisdiction over that area
The Court would therefore decline to exercise its jurisdiction on grounds of infructuousness
Before we discuss the merits of the arguments it is necessary to take a conspectus of the constitutional provi sions concerning the judiciary and itsindependence
hi interpreting the constitutional provisions in this area the court should adopt a construction which strengthens the foundational features and the basic structure of the Consti tution
Rule of law is a basic feature of the Constitution which permeates the whole 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
Articles 1242 and 2171 require in the matter of appointments of Judges consultation with the Chief Jus tices
These provisions also ensure fixity of tenure of office of the Judge
The Constitution protects the salaries of Judges
Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the dis charge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided
Articles 1244 and 1245 afford protection against premature determination of the tenure
Article i 244 says a Judge of the Supreme Court shall not be removed from his office except etc
The grounds for removal are again limited to proved misbehaviour and incapacity
It is upon a purposive and harmonious con struction and exposition of these provisions that the issues raised in these petitions are to be resolved
In construing the Constitutional provisions the law and 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 understanding and interpretation of the Constitu tional Scheme
32 10
In England a Judge of the superior courts can be removed only on presentation of an address by both the Houses of Parliament to the Crown
Proceedings may be initi ated by a petition to either House of Parliament for an address to the Crown or by a resolution for an address to the Crown to appoint a committee of inquiry into the conduct of the person designated though preferably they should be commenced in the House of Commons
Sometimes as in Barring tons Case 1830 a Commission of Inquiry is appointed and the matter is considered in the light of the report of the said Commission
The motion for removal is considered by the entire House
In case any enquiry is to be conducted into the allegations it is either referred to a Select Committee of the House or to the Committee of the whole House Opportu nity is given to the Judge whose conduct is impugned to make defence on public inquiry
The report of the Committee and its recommendation are placed before the House where the matter is debatedSee Halsbury s Laws of England 4th Ed
p 1108
This process has been subjected to following criticism i legislative removal is coloured by political partisanship inasmuch as the initia tion of the process as well as the ultimate result may be dictated by political considera tions and process of fact finding and deliber ations also suffer from party spirit
ii the government has considerable control not only on the ultimate result of the pro ceedings but also on parliamentary time which enables them to prevent motions for an address from being adopted if it suits them
iii the legislative procedure is not adequate for adjudicative fact finding and iv since Parliament is the master of its own procedure the procedures and rules of evidence appropriate to judicial proceedings which would seem to be required in a case of judicial removal are unlikely to be allowed in Parliament
See Shetreet Judges on Trial 1976 p 405 407 12
The Justice Sub Committee on the Judiciary consid ered the question whether the existing process for removal by address of the Houses should be substituted for or sup plemented by a new mechanism designed to meet changing needs and conditions
The Sub Committee in its 1972 Report answered the said question in the affirmative and has pro posed a new procedure for removal of judges
The Sub Commit tee has recommended the establishment of an adhoc judicial commission to be ap 33 pointed by the Lord Chancellor if he decides that the question of removing a judge is to be investigated
The Commission should include a majority of and in any event not less than three persons who hold or have held high judicial office
Members of Parliament or persons who hold or have held any political appointment would be excluded
Upon completing its inquiry the ad hoc Commission shall report the facts and recommend whether the question of removal of a judge should be referred to the Judicial Com mittee of the Privy Council
If the Commission so recommend ed the Privy Council would consider the matter and if it concluded that the judge should be removed it would so advise Her Majesty
see Shetreet Judges on Trial  1976 pp
404 405
Dr Shetreet has suggested a via media and has favoured the establishment of a Judicial Commission for removal but not for discipline short of removal along the lines sug gested by the Sub Committee but has expressed the view that the existing process of address should also be preserved
See Shetreet Judges an Trial  1976 p 409
Similar view has been expressed by Margaret Brazier
See Rodney Brazier Constitutional Texts  1990 pp606 607
In Canada under section 991 of the Constitution Act of 1867 the judges of the superior courts hold office during good behaviour and are removable by the Governor General on address of the Senate and House of Commons
On petition for removal submitted in 1868 and 1874 the matter was referred to a Select Committee of the House
In a third case in 1874 the judge died before any action could be taken on motion for appointment of a Select Committee
Recently in 1966 67 a motion for removal of Mr Justice Leo Landreville of the Supreme Court of Ontario was moved and in that con nection a Royal Commission consisting of Mr Justice Ivan C Rand a retired judge of the Supreme Court of Canada was appointed under the Inquiries Act R section C 1952 C 154 to conduct an enquiry
After considering the report of the said Commission a Joint Committee of the Houses recommended removal but the judge resigned while Parliament was prepar ing for his removal by joint address
Thereafter Judges Act was enacted in 1971 whereby Canadian Judicial Council has been created
The functions of the said Council as set out in section 392 include making the enquiries and the investiga tion of complaints or allegations described in section 40
Sec tion 40 provides that the council may conduct an enquiry to determine whether a judge of superior district or county court should be removed from office and it may recommend to the Minister of Justice of Canada that a Judge should be removed from office
The grounds on which such a recommenda tion can be made are set out in section 412 of the Act and they are a age or infirmity Co having been 34 guilty of misconduct c having failed in the due execution of his office or d having been placed by his conduct or otherwise in a position incompatible with the due execution of his office
Gall The Canadian Legal System   1983  pp 184 186
In 1 982 the matter of Mr Justice Thomas Berger a Judge of the Supreme Court of British Columbia was investi gated by the Canadian Judicial Council prompted by certain remarks made by the judge
The Council concluded that the public expression of political views in the nature of those made by Mr Justice Berger constituted an indiscretion but that they were not a basis for a recommendation that he be removed from office and on the basis of the said recom mendation no further action was taken though Mr Justice Berger tendered his resignation as a judge a few months later
See Gall  The Canadian Legal System 1983 p 189 14
Under section 72ii of the Commonwealth of Austra lia Constitution Act 1900 the justices of the High Court and of the other courts created by the Parliament cannot be removed except by the GovernorGeneral in Council on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehavior or incapacity
Similar provisions are contained in the Constitutions of the States with regard to removal of Judges of State Courts
Proceedings were initiated for removal of Mr Justice Murphy of the High Court of Australia in 1984 under section 72ii of the Commonwealth of Australia Constitution Act
In connection with those proceedings at first a select Commit tee of the Senate was appointed to enquire and report into the matter
It consisted of six senators drawn from three political parties
The Committee by majority decision 3 2 one undecided found no conduct amounting to misbehaviour under section 72ii
In view of the split vote a second Committee of four senators from the same three political parties was established and it was assisted by two retired judges one from the Supreme Court of Western Australia and the other from Supreme Court of the Australian Capital Territory and the said Committee recorded its finding but the judge did not appear before either of the committees
The judge was also prosecuted before the Central Criminal Court of New South Wales and was found guilty of an attempt to pervert the course of justice but the said verdict was set aside by the Court of Criminal Appeal
Fresh trial was held where under the judge was found not guilty
Thereafter an ad hoc legislation namely Parliamentary Commission of Inquiry Act 1986 was enacted by the Commonwealth Parliament and a Commission consisting of three retired judges respec tively of Supreme Court of Victoria Supreme Court of Aus tralia Capital Territory 35 and the Federal Court and Supreme Court of South Australia was constituted to investigate into the allegations of misbehaviour
Before the said commission could give its report the judge became gravely ill and the Act was re pealed Lane s Commentary on the Australian Constitution 1986 p 373
In one other case proceedings for removal were initiated against Mr Justice Vasta of the Supreme Court of Queensland and for that purpose the Queensland Legislature enacted the Parliamentary Judges Commission of Inquiry Act 1988 whereby a commission comprised of three retired judges respectively of the High Court of Australia Supreme Court of Victoria and the Supreme Court of New South Wales was constituted
In Australia there has been criticism of the exist ing procedure with regard to removal of judges both by judges as well as by lawyers
Mr Justice LJ King Chief Justice of the Supreme Court of South Australia has ob served The concept of removal by an address of both Houses of Parliament is itself the subject of a good deal of criticism
Curiously common criticism which are made are contradictory
One criticism is that the necessity for the involvement of the legislature ensures that the procedure will not be used and that the judges therefore have a practical immunity from removal
Removal by this means is cer tainly extremely tare
That may be however because in the countries in which this proce dure prevails conditions are such that a judge who commits a serious act of judicial misconduct would certainly resign
That con sideration together with the fact that stand ards of judicial conduct are generally very high in those countries renders removal by the legislature a rarity
The opposite criti cism however is that there is no established procedure for the trial of a judge whose removal by the legislature is sought
It is assumed that the legislature would itself institute some form of inquiry at which the judge would be able to defend himself against the accusations but that would be a matter for the legislature in each case
There are some who fear that a parliamentary majority encouraged by inflamed public feeling about an unpopular judicial decision might some day act to remove a judge without due process
It is at least questionable whether the system of removal by an address of both Houses of Parliament accords to a judge the 30 degree of security which is required by the concept of judicial independence
 Minimum Standards of Judicial Independence  1984 58 ALl 340 at p 345 Similarly Mr Justice MH Mclelland of the Supreme Court of New South Wales has expressed the view In lieu of measures of the kinds already discussed some permanent and preferably Australia wide machinery should be provided by legislation for the purpose of establishing an effective procedure for the determination by a judicial tribunal of the existence of misbehaviour or incapacity which could warrant a judge s removal from office
The design of that ma chinery should be such as to produce as little damage to judicial independence public confi dence in the judicial system and the authori ty of the courts as is consistent with its effective operation
It should also be such as to ensure to a judge both procedural fairness and protection from public vilification or embarrassment pending the making of the deter mination
Disciplining Australian Judges at p 401 Mr Justice Mclelland has also suggested that the tribu nal should be subject to the supervisory jurisdiction of and an appeal should lie from the tribunal to the High Court of Australia
In this context he has stated Furthermore the protection of judicial tenure and independence which the Act of Settlement provisions were intended to effect has in the intervening period lost a great deal of its strength
In 1701 the Crown the House of Lords and the House of Commons were three powerful but relatively independent entities
It was necessary for a judge to incur the displeasure of all three concurrent ly to be at risk of removal under the parlia mentary address procedure
The subsequent development of the party system and cabinet government especially with modern ideas of strict party discipline has radically altered the position
In modern times the executive government and the lower house and frequently the upper house where there is one are effectively under the control of a single individual or cohesive group so that now a judge may be at risk of removal under the parliamentary address procedure if 37 he or she were to incur the sole displeasure of that individual or group Disciplining Australian Judges 8 8 at p 402 3 Sir Maurice Byers former Solicitor General of the Commonwealth has also spoken in the same vein A federal system involves a tension between the High Court and the Parliament and the executive
Recent years have seen this in crease because interpretations of the Consti tution have become party dogma
The Court s constitutional decisions are seen by many of the uninformed and quite a few of the informed as bearing upon party political questions
When as in the case of Mr Justice Murphy and to a much less degree Sir Garfield Barwick a former political figure hands down a judgment he attracts the animus and often the abuse of some in Parliament
Section 72 of the Consti tution leaves him exposed to the attack of his opponents and the often doubtful support of his former friends
Whether Parliament may itself decide the judicial question of his fitness for office or proved misbehaviour or incapacity is at the least doubtful
But the Court should not be exposed to this hazard A Commission of Judges whose membership rotates is called for From the other side of the Bar Table An Advocates  view of the Judici ary  at p 185
A Constitutional Commission was set up in Australia for suggesting reforms in the Commonwealth Constitution
The said Commission has recommended that provision should be made by amendment to the Commonwealth Constitution for a extending the security of tenure provided by section 72 to all judges in Australia and b establishing a national judicial tribunal to determine whether facts found by that tribunal are capable of amounting to misbehaviour or inca pacity warranting removal of a judge from office
Mclelland Disciplining Australian Judges   at p 403 17
In the United States the removal of a judge of the US Supreme or a Federal judge is governed by the provisions of the US Constitution wherein Article 114 provides for the removal from office of the President Vice President and all civil officers of the United States on impeachment for and conviction of treason bribery or other high crimes 38 and misdemeanours
Impeachment may be voted by a simple majority of the members of the House of Representatives there being a quorum on the floor and trial is then held in the Senate which may convict by a vote of two thirds of the members of the Senate present and voting there being a quorum
With regard to state judiciary the process of removal is governed by the State Constitutions
Majority of the States follow the federal pattern an4 provide for im peachment as the normal process of removal of appointed judges
In some States provision is made for removal by an address of the Governor to both Houses of legislature or by a joint resolution of the legislature
In some States the removal power is vested in the State Supreme Courts while in some states special courts are provided to hear removal charges
In the State of New York the Court is known as the Court on the judiciary
See Henry J Abraham The Judicial Process 3rd Ed p45
For judicial administration at the national level there is Judicial Conference of the United States which consists of the Chief Justices of the United States the chief judges of each of the eleven numbered circuits and of the District of Columbia and federal circuits but also since 1957 a district judge representative from each circuit with the exception of the federal circuit which lacks a trial court tier
By an Act of the Congress passed in 1932 incorporated in Title 28 of the US Code the Judicial Conference is charged with the duty to make a comprehensive survey of the condition of business in the courts to prepare plans for assignment of judge  to or from circuits or districts where necessary and to submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business
The work of the Judicial Conference is performed in special committees which include the special committee on judicial ethics
Another Act of Congress passed in 1939 makes provi sion for a judicial council for each circuit composed of circuit judges of the circuit who is empowered to make all necessary orders for the effective and expeditious adminis tration of the business of the courts within its circuit
The mandate of the Judicial Councils embraces the business of the judiciary in its institutional sense administration of justice such as avoiding of loss of public esteem and confidence in respect to the court system from the actions of a judge or other person attached to the courts
The Judicial Councils have exercised the power of review of allegations of misconduct on the part of court personnel officers and judges
In view of the increased number of judges who can be removed only by the process of impeach ment Congress has enacted the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 whereby the Judicial Councils have been explicitly empowered to receive complaints about judicial 39 conduct opaquely described as prejudicial to the effective and expeditious administration of the business of the courts or alleging that such a Judge or magistrate is unable to discharge all the duties of office by reason of mental or physical disability
 It prescribes an elaborate judicilised procedure for processing such complaints within the administrative system of the councils and the Judicial Conference
Should a Council determine that the conduct constitutes grounds for impeachment the case may be certi fied to the Judicial Conference of the United States which may take appropriate action and if impeachment is deemed warranted the Conference is empowered to transmit the record and its determination to the House of Representa tives
In so far as the States are concerned all the fifty States have central Institutions for disciplining their judges and in each a variously constituted commission is organised in either a single tier or in many tiers depending on the perceived desirability of separating fact finding from judgment recommendation tasks
Commission recommenda tions are transmitted to the State Supreme Court for its authoritative imprimatur except in states where they are received by legislatures that retain judicial removal power
See Robert JJanosik Encyclopaedia of the American Judicial System Vol
II pp575 to 578
This study of the practice prevailing in the above mentioned countries reveals that in Canada Australia and the United States the process of removal of a judge incor porates an investigation and inquiry into the allegations of misconduct or incapacity against a judge by a judicial agency before the institution of the formal process of removal in the legislature
England is the only exception where the entire process is in Parliament but there also views are being expressed that it should be replaced by a judicial process of investigation by a judicial tribunal before the matter is taken up by the Houses of Parliament
This is also the trend of the recommendations in the resolu tions adopted by the United Nations General Assembly and international conferences of organisations of lawyers
International Bar Association at its 19th Biennial Conference held at New Delhi in October 1982 adopted Minimum Standards of Judicial Independence
Paras 27 to 32 relating to Judicial Removal and Discipline  are as under 27The proceedings for discipline and removal of judges should ensure fairness to the judge and adequate opportunity for hearing
40 28
The procedure for discipline should be held in camera
The judge may however request that the heating be held in public subject to final and reasoned disposition of this request by the Disciplinary Tribunal
Judgments in disciplinary proceedings whether held in camera or in public may be published
a The grounds for removal of judges should be fixed by law and shall be clearly defined
b All disciplinary action shall be based upon standards of judicial conduct promulgated by law or in established rules of court
A judge shall not be subject to removal unless by of a criminal act or through gross or repeated neglect or physical or mental incapacity he has shown himself manifestly unfit to hold the position of judge
In systems where the power to discipline and remove judges is vested in an institution other than the Legislature the tribunal for discipline and removal of judges shall be permanent and be composed predominantly of members of the Judiciary
The head of the court may legitimately have supervisory powers to control judges on administrative matters
The First World Conference on the Independence of Justice held at Montreal on June 10 1983 adopted a UniVer sal Declaration on the Independence of Justice
It relates to international judges as well as national judges
The following paragraphs deal with Discipline and Removal  in relation to national judges 232 A complaint against a judge shall be processed expeditiously and fairly under an appropriate practice and the judge shall have the opportunity to comment on the complaint at its initial stage
The examination of the complaint at its initial stage shall be kept confidential unless otherwise requested by the judge
233 a The proceedings for judicial removal or discipline when such are initiated shall be held before a court or a board predominant ly composed of members of the judiciary and selected by the judiciary
b However the power of removal may be vested in the Legislature by impeachment or joint address preferably upon a recommenda tion of a court or board as referred to in 233a
41 Explanatory Note In countries where the legal profession plays an indispensable role in maintaining the rule of law and judicial independence it is recommended that members of the legal profession participate in the selection of the members of the court or board and be included as members thereof
 234 All disciplinary action shall be based upon established standards of judicial con duct
235 The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing
236 With the exception of proceedings before the Legislature the proceedings for disci pline and removal shall be held in camera
The judge may however request that the hearing be held in public subject to a final and reasoned disposition of this request by the Disciplinary Tribunal
Judgments in discipli nary proceedings whether held in camera or in public may be published
237 With the exception of proceedings before the Legislature or in connection with them the decision of a Disciplinary Tribunal shall be subject to appeal to a court
238 A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour rendering him unfit to continue in office
239 In the event that a court is abolished judges serving in this court shall not be affected except for their transfer to another court of the same status
The Seventh United Nations Congress on the Preven tion of Crime and the Treatment of Offenders held at Milan from August 26 to September 6 1985 adopted the Basic Prin ciples on the Independence of the Judiciary
Paragraphs 17 to 20 dealing with Discipline Suspension and Removal  are as under 17A charge or complaint made against a judge in hisher judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure The judge shall have the right to a fair heating
The examination of the matter at its initial stage shall be kept confidential unless otherwise requested by the judge
Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to 42 discharge their duties
All disciplinary suspension or removal proceedings shall be determined in accordance with established standards of judicial con duct
Decisions in disciplinary suspension or removal proceedings should be subject to an independent review
This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings
 The Congress Documents were endorsed by the UN General Assembly in its Resolution 4032 on November 9 1985 and Resolution 40 146 on December 13 1985
Resolution 40146 dated December 13 1985 of the General Assembly specifically welcomed the Basic Principles on the Independence of the Judiciary and invited Government to respect them and to take them into account within the framework of their nation al legislation and practice para 2
Unlike the judges of the Superior courts in England the judges in the colonies did not enjoy the security of tenure as guaranteed under the Act of Settlement 1700 and they held office at the pleasure of the Crown
See Terrell vs Secretary of State for the Colonies and Another 19532 482
The position was not different in India till the enactment of Government of India Act 1935
In Clause b of the proviso to sub Section 2 of Section 200 of the said Act which related to judges of the Federal Court it was pre scribed that a judge may be removed from his office by order of the Governor General on the ground of misbehaviour or of infirmity of body or mind if the Judicial Committee of the Privy Council on reference being made to them report that the judge ought on any such ground to be re moved
Similar provisions were made with regard to judges of the High Court in Section 220
It would thus appear that prior to the coming into force of the Constitution of India it was necessary to have a determination by a judicial body about the alleged grounds of misbehaviour or infirmity of mind and body before a judge of the Federal Court or High Court could be removed
Does the Constitution seek to alter this position in a way as to exclude investigation and proof of misbehaviour or incapacity by a judicial body and to rest the power of removal including the investigation and proof of misbehaviour or incapacity in Parliament alone
Basically the process of removal or impeachment of a judge is a political process
A learned author in The Impeachment of the Federal 43 Judiciary  Wrisley Brown Harward Law Review 1912 1913 684 at page 698 says 
Thus an impeachment in this country though judicial in external form and ceremony
is political in spirit
It is directed against a political offence
It culminates in a polit ical judgment
It imposes a political forfei ture
In every sense say that of administra tion it is a political remedy for the sup pression of a political evil with wholly political consequences
This results in no confusion of the political and the judicial powers
The line of demarca tion is clearly discernible even through the labyrinth of formal non essentials under which ingenious counsel in various cases have sought to bury it
The judgment of the High Court of Parliament upon conviction of an impeachment automatically works a forfeiture of political capacity but this is simply an effect of the judgment which is to be distinguished from the judgment itself  Mauro Cappelletti in The Judicial Process in Comparative Perspective Clarendon Press Oxford 1989 at page 731 says Two main features of this accountability type can be identified first the fact that ac count has to be given to political  bodies ultimately to the legislative andor the executive branches by means of essentially po litical  non judicial processes second and perhaps even more characteristically the fact that account has to be given not or not primarily for legal  violations but rather for behaviour and this might include private out of office behaviour which is evaluated on the basis of political  criteria
Perhaps the best illustration of political accountability can be found in the systems of the common law tradition
In England judges like any other officials can be impeached before the House of Lords at the suit of the House of Commons  although this practice has fallen into desuetude moreover higher court judges can be removed from office by the Crown on an address presented to Her Majesty by both Houses of Parliament 
The idea behind this address  procedure is that judges are appointed during good behaviour  hence they can be removed upon breach of the condition
Misbehaviour includes such situations as the case of conviction upon an indictment for any infamous offence of such a nature as to render the 44 person unfit to exercise the office  but also improper exercise of the functions appertain ing to the office or non attendance or neglect of or refusal to perform the duties of the office 
Of course the decision of the Houses and the Crown can only be an essential ly political one not a purely juridical decision even though we are informed that the removal procedure is subject to some extent to the rules of natural justice   24
But the Constitutional scheme in India seeks to achieve a judicious blend of the political and judicial processes for the removal of Judges
Though it appears at the first sight that theproceedings of the Constituent Assembly relating to the adoption of
clauses 4 and 5 of Article 124 seem to point to the contrary and evince an intention to exclude determination by a judicial process of the correctness of the allegations of misbehaviour or inca pacity on a more careful examination this is not the correct conclusion
In the submissions of the learned counsel who contend against the manifestation of an intention to bring in a judicial element reliance has been placed on the proceedings of the Constituent Assembly dated July 29 1947 relating to adoption of Clause 18 of the report of the Union Constitution Committee relating to the Supreme Court
Shri Alladi Krishnaswami Ayyar had moved the said clause subject to modifications and conditions in the said clause which related to appointment and removal of judges of Supreme Court
It was provided that a judge of the Supreme Court of India shall not be removed from his office except by the President on an address from both the Houses of Parliament of the Union in the same session for such removal on the ground of proved misbehaviour or incapacity
Further provi sion may be made by Federal law for the procedure to be adopted in this behalf 
Shri K Santhanam had moved an amendment in the said Clause relating to removal of judges and he wanted the last sentence about further provision being made by Federal law for the procedure to be adopted in that behalf to be omitted
Shri MAnanthasayanam Ayyanagar proposed amendments suggesting two alternative clauses in the place of the Clause with regard to removal of the judges
In one clause it was suggested that a judge may be removed from office on the ground of misbehaviour or infirm ity of mind or body by an address presented in this behalf by both the Houses of the legislature to the President provided that a committee consisting of not less than 7 High Court Chief Justices chosen by the President investigates and reports that the judge on any such ground be removed
The other alternative clause suggested by Shri MAnantha sayanam Ayyangar was that a judge of the Supreme Court may be removed from office by the President on the ground of misbehaviour or of infirmity of mind or body if on refer ence being made to it Supreme Court by the President a special 45 tribunal appointed by him for the purpose from amongst judges or exjudges of the High Courts or the Supreme Court report that the judge ought on any such grounds to be removed
 The Constituent Assembly adopted clause 18 with the amendments as proposed by Shri Alladi Krishnaswami Ayyar and rejected the amendments suggested by Shri M Anantha sayanam Ayyangar
Shri Santhanam did not press his amendment and it was withdrawn
There is no doubt that in the amend ments which were suggested by Shri MAnanthasayanam Ayyan gar it was provided that there should be investigation into the allegations of misbehaviour or infirmity by a committee consisting of Chief Justices of the High Courts or the special tribunal consisting of judges or ex judges of the High Court or the Supreme Court but the rejection of the said amendments moved by Shri Ayyangar does not mean that the Constituent Assembly was not in favour of determination about the correctness of such allegations by judicial body because Shri Alladi Krishnaswami Ayyar while moving Clause 18 had emphasised the word proved misbehaviour  and had stated While the ultimate power may rest with the two Houses the Clause provides that the charges must be proved
How exactly to prove the charges will be provided for in the Feder al law
We need not be more meticulous or more elaborate than the people who have tried a similar case in other jurisdictions
I chal lenge my friend to say whether there is any detailed provision for the removal of judges more than that in any other Constitution in the world
The general principle is laid down in the Constitution and later on the Federal law will provide for adequate machinery and that is the import of the clause 
There is sufficient safeguard in the reference proved misbehaviour and we might make elabo rate and adequate provision for the way in which he guilt could be brought home to a particular judge in any Federal law that may be passed but that is a different matter But I do not think that in a Constitution it is necessary to provide de tailed machinery as to the impeachment the charges to be framed against a particular judge
To make a detailed machinery for all these could be a novel procedure to be adopted in any Constitution
Constituent Assembly Debates vols
I to VI at pp
899 900 25
Reference was also made to the debates of the Con stituent Assembly dated May 24 1949 on Article 103 of the Draft Constitution
Shri Tajamul Hnsain moved an amendment in Clause 4 of Article 103 which related to the removal of a judge of Supreme Court and suggested an amendment in the said clause so as to provide that a judge of the Supreme 46 Court shall not be removed from his office except by an order of the President passed after a Committee consisting of all the judges of the Supreme Court had investigated the charge and reported on it to the President and etc
 The said amendment was negatived by the Constituent Assembly
Constituent Assembly Debates vol
VIII at pp
243 and 262
The said amendment was similar to those moved by Shri M Ananthasayanam Ayyangar at the stage of adoption of Clause 18 of the report of the Union Constitution Committee noticed earlier
The reasons which were given by Shri Alladi Krishnaswami Ayyar for opposing the said amendments would apply to this amendment also
The proceedings in the Constituent Assembly there fore do not give an indication that in adopting Clauses 4 and 5 of Article 124 of the Constitution the intention of the Costituent Assembly was to exclude_ investigation and proof of misbehavior or incapacity of the judge sought to be removed by a judicial body
Having regard to the views expressed by Shri Alladi Krishnaswami Ayyar who was a member of the Drafting Committee while opposing the amend ments proposed by Shri MAnanthasayanam Ayyangar it is possible to infer that the intention of the Constituent Assembly was that the provision with regard to the machinery for such investigation and proof was a matter which need not be contained in the Constitution and it is a matter for which provision could be made by Parliament by law
This is some of the historical material and back ground on the topic
We may now proceed to consider the merits of the contentions
RE CONTENTION A 28
This contention has two aspects whether a motion for removal of a Judge lapses upon the dissolution of the House of Parliament and secondly the question whether it so lapses or not is a matter within the exclusive domain and decision of that House itself
On the first aspect the contention of the learned Attorney General and Shri Kapil Sibal learned Senior Counsel are similar
On the second aspect the learned Attorney General would say that the question whether a motion lapsed or not is to be decided on the basis of the provisions of law guiding the matter and the House itself is not its final arbiter
Learned Attorney General would say that the Court alone has jurisdiction to examine and pronounce on the law of the matter
On the question of lapse reliance was placed on the classic treatise of Erskine May s The Law Privileges Proceedings and Usage 47 of Parliament Twenty first Edition London Butterworths 1989
A motion is described as a proposal made for the purpose of illustrating the decision of the House
Accord ing to Erskine May certain matters may be raised by only a substantive motion
He says Certain matters cannot be debated except on a substantive motion which allows a distinct decision of the House
Amongst these are the conduct of the sovereign the heir to the throne or other members of the Royal Family a Governor General of an independent territory the Lord Chancellor the Speaker the Chairman of Ways and Means Members of either House of Parliament and judges of the superior courts of the United Kingdom including persons holding the position of a judge such as a judge in a court of bankruptcy and a county court or a recorder  30 Sri Sibal placed strong reliance on the following statements in MNKaul and SLShakdher in Practice and Procedure of Parliament as to the effects of the dissolu tion of the House Dissolution as already stated marks the end of the life of a House and is followed by the constitution of a new House
Once the House has been dissolved the dissolution is irrevo cable
There is no power vested in the Presi dent to cancel his order of dissolution and revive the previous House
The consequences of a dissolution are absolute and irrevocable
In Lok Sabha which alone is subject to dissolu tion under the Constitution dissolution passes a sponge over the parliamentary slate
All business pending before it or any of its committees lapses on dissolution
No part of the records of the dissolved House can be carried over and transcribed into the records or registers of the new House
In short the dissolution draws the final curtain upon the existing House
Adverting to the effect of dissolution on other business such as motions resolutions etc
 the learned authors say All other business pending in Lok Sabha eg motions resolutions amendments supple mentary demands for grants etc at whatever stage lapses upon dissolution as also the petitions presented to the House which stand referred to the Committee on Petitions Learned Attorney General urged that a combined reading of Articles 107 108 and 109 leads irresistibly to the conclusion that upon dissolution 48 of the House all bills will lapse subject only to the exception stipulated in Article 108
It is further urged that on first principle also it requires to be accepted that no motion should survive upon the dissolution of the House unless stipulated otherwise under the Rules of Procedure and conduct of business
The doctrine of lapse it is urged is a necessary concomitant of the idea that each newly consti tuted House is a separate entity having a life of its own unless the business of the previous House is carried over by the force of statute or rules of procedure
Both the learned Attorney General and Shri Kapil Sibal took us through the Rules of Procedure and Conduct of Business in Lok Sabha made under Article 118 of the Constitution to show that invaria bly all pending business come to an end with the expiry of the term of the House or upon its earlier dissolution
Shri Ram Jethmalani for the petitioner sub committee referred to the conventions of the British Parliament and urged that pending business lapses on prorogation and as a general practice the House is usually prorogued before it is dissolved
Learned counsel said that impeachment motions are sui generous in their nature and that they do not lapse
It is
however necessary to distinguish the Indian Parliamen tary experience under a written Constitution from the Brit ish conventions
Indeed referring to the doctrine of lapse this Court in Purushothaman Nambudiri vs The State of Kerala 1962 Suppl
1 SCR 753 Gajendragadkar J said 
In support of this argument it is urged that wherever the English parliamentary form of Government prevails the words prorogation and dissolution have acquired the status of terms of art and their significance and conse quence are well settled
The argument is that if there is no provision to the contrary in our Constitution the English convention with regard to the consequence of dissolution should be held to follow even in India
There is no doubt that in English in addition to bringing a session of Parliament to a close prorogation puts an end to all business which is pending consideration before either House at the time of such prorogation as a result any proceedings either in the House or in any Committee of the house lapse with the session Dissolution of Parliament is invariably pre ceded by
prorogation and what is true about the result of prorogation is it is said a fortiori true about the result of dissolution
Dissolution of Parliament is sometimes de scribed as a civil death of Parliament
Ilbert in his work on Parliament  has ob served that prorogation means the end of a session not of a Parliament and adds that like dissolution it kills all bills which have not yet passed
He also describes disso lution as an end of a Parliament not merely of 49 a session by royal proclamation and ob serves that it wipes the slate clean of all uncompleted bills or other proceedings p759  760
After referring to the position in England that the dissolution of the House of Parliament brought to a close and in that sense killed all business of the House at the time of dissolution the learned Judge said   
Therefore it seems to us that the effect of cl
5 is to provide for all cases where the principle of lapse on dissolution should apply
If that be so a Bill pending assent of the Governor or President is outside cl
5 and cannot be said to lapse on the dissolution of the Assembly p 768   
In the absence of cl 5 it would have followed that all pending business on the analogy of the English convention would lapse on the dissolution of the Legisla tive Assembly
It is true that the question raised before us by the present petition under Pal
196 is not free from difficulty but on the whole we are inclined to take the view that the effect of cl
5 is that all cases not falling within its scope are not subject to the doctrine of lapse of pending business on the dissolution of the Legislative Assem bly
In that sense we read cl
5 as dealing exhaustively with Bills which would lapse on the dissolution of the Assembly
If that be the true position then the argument that the Bill which was pending assent of the President lapsed on the dissolution of the Legislative Assembly cannot be upheld P 769 31
It is true that Purushothaman Nambudiri case dealt with a legislative measure and not a pending business in the nature of motion
But we are persuaded to the view that neither the doctrine that dissolution of a House passes a sponge over parliamentary slate nor the specific provisions contained in any rule or rules flamed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a judge under Article 124
the reason is that Article 1245 and the law made thereunder exclude the operation of Article 118 in this area
Section 3 of the Act provides 31 If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed a in the case of a notice given in the House of the People by not less than one hundred members of that House 50 b in the case of a notice given in the Council of States by not less than fifty members of that Council then the Speaker or as the case may be the Chairman may 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
2 If the motion referred to in sub section 1 is admitted the Speaker or as the case may be the Chairman 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 consisting of three members of whom a One shall be chosen from among the Chief Justices and other Judges of the Supreme Court Co one shall be chosen from among the Chief Justices of the High Courts and c one shall be a person who is in the opinion of the Speaker or as the case may be the Chairman a distinguished jurist Proviso  Omitted Sub sections as 3 to 9 unnecessary here
Section 62 provides 2 If the report of the Committee contains a finding that the Judge is guilty of any misbe haviour 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 Houses of Parliament in which it is pending
 The effect of these provisions is that the motion shall 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
The reason is that a law made by the Parliament and binding on the House can provide against the doctrine of lapse
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 and under the present statute does 51 provide against the doctrine of lapse
Further article 118 expressly states that each House of Parliament may make rules for regulating subject to the provisions of this Constitution
In State of Punjab vs Sat Pal Dang  Ors  this Court held that the law for purposes of Article 209 analogues to Article 119 could even take the form of an Ordinance promulgated by the Governor of a State under Article 213 and that wherever there is repugnance between the Rules of Procedure framed under Article 208 Article 118 in the ease of Parliament the law made under Article 209 shall prevail
In 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
Indeed no question of repugnance could arise to the extent the field is covered by the law under Article 1245
Such a view would indeed obviate some anomalies which might otherwise arise
Rajya Sabha is not dissolved and a motion for presentation of address for the removal of the Judge can never lapse there
Section 3 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 of the committee implying that till the happening of that event the motion will not lapse
We are of the view that the argument that such a motion lapses with the dissolution of the House of Parliament is not tenable
The second limb of Contention A is that the question whether a motion has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive master
No aspect of the matter it is contended is justificiable before a Court
Houses of Parliament it is claimed are privileged to be the exclu sive arbiters of the legality of their proceedings
Strong reliance has been placed on the decision in oft quoted decision in Bradlaugh vs Gosserr There the exclusiveness of parliamentary jurisdiction on a matter related to the sphere where Parliament and not the Court had exclusive jurisdiction even if the matters were covered by a statute
But where as in this country and unlike in England there is a written constitution which constitutes the funda mental and in that sense a higher law and acts as a limi tation 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 indeed an incident of and flows 52 from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authori ty 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
It is to be noted that the British Parliament with the Crown is Supreme and its powers are unlimited and courts have no power of judicial review of legislation
This doctrine is in one sense the doctrine of ultra vires in the constitutional law
In a federal set up the judiciary becomes the guardian of the Constitution
Indeed in AK Gopalan vs The State of Madras  Arti cle 13 itself was held to be ex abundante cautela and that even in its absence if any of the fundamental rights were infringed by any legislative enactment the court had always power to declare the enactment invalid
The interpretation of the Constitution 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
In Re Special Reference Case  Gajendragadkar CJ said  though our Legislatures have plenary powers they function within the limits pre scribed by the material and relevant provi sions of the Constitution
In a democratic country governed by a written Constitution it is the Constitution which is supreme and sovereig   But it is the duty of this Court to interpret the Con stitution for the meaning of which this Court is final arbiter
Shri Kapil Sibal referred us to the following obser vations of Stephen J in Bradlaugh vs Gosserr supra 
It seems to follow that the House of Commons has the exclusive power of interpret ing the statute so far as the regulation of its own proceedings within its own walls is concerned and that even if that interpreta tion should be erroneous this court has no power to interfere with it directly or indi rectly  p 280  281 
The House of Commons is not a Court of Justice but the effect of its privilege to regulate its own internal concerns practically invest it with the judicial character when it has to apply to particular cases the provi sions of Acts of Parliament
53 We must presume that it discharges this func tion properly and with due regard to the laws in the making of which it has so great a share
If its determination is not in accord ance with law this resembles the case of an error by a judge whose decision is not subject to appeal
There is nothing startling in the recognition of the fact that such an error is possible
If for instance a jury in a crimi nal case gives a perverse verdict the law has provided no remedy
The maxim that there is no wrong without a remedy does not mean as it is sometimes supposed that there is legal remedy for every moral or political wrong   p 285 The rule in Bradlaugh vs Gossett supra was held not applicable to proceedings of colonial legislature governed by the written constitutions Barton vs Taylor and Redillusion Hong Kong Ltd vs Attorney General of Hong Kong  The principles in Bradlaugh is
that even a statutory right if it related to the sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of the Parliament s own concern
But the principle cannot be extended where the matter is not merely one of procedure but of substantive law concerning matters beyond the Parliamen tary procedure
Even in matters of procedure the constitu tional provisions are binding as the legislations are en forceable
Of the interpretation of the Constitution and as to what law is the Courts have the constitutional duty to say what the law is
The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws
In deed the learned Attorney General submitted that the ques tion whether as an interpretation of the constitutional processes and laws such a motion lapses or not is exclu sively for the courts to decide
The interpretation of the laws is the domain of the courts and on such interpretation of the constitutional provisions as well as the  it requires to be held that under the law such a motion does not lapse and the Courts retain jurisdiction to so declare
Contention A is answered accordingly
RE CONTENTIONS B C AND D 34
These contentions have common and over lapping areas and admit of being deal with and disposed of together
On tile interpretative criteria apposite to the true meaning and scope of Articles 121 1244 and 1245 indeed three constructional options become avail able 54 First The entire power for taking all steps for the removal of a Judge culminating in the presentation of an address by different Houses of Parliament to the Presi dent is committed to the two Houses of Par liament alone and no initiation of any investigation is possible without the initiative being taken by the Houses them selves
No law made by Parliament under Article 1245 could take away this power
The bar of Article 121 is lifted the moment any Member of Parliament gives notice of motion for the removal of a Judge and the entire allegations levelled by him would be open for discussion in the House itself
It will be for the majority of the Members of the House t decide if and how they would like to have the allegations investigated
Any abridging this power is bad
Second Since a motion for presenting an address to the President referred to in Arti cles 121 and 124 4 has to be on ground of proved misbehaviour and incapacity no such motion can be made until the allegations relating to misbehaviour or incapacity have first been found to be proved in some forum outside either Houses of Parliament Law under Article 1245 is mandatory and until the Parliament enacts a law and makes provision for an investigation into the alleged misbeha viour or incapacity and regulates the proce dure therefor no motion for removal of a Judge would be permissible under Article 1244 and the House of Parliament would not be brought into the picture till some authori ty outside the two Houses of Parliament has recorded a finding of misbehaviour or incapac ity
The emphasis is on the expression proved 
Third That Article 1245 is only an enabling provision and in the absence of any enactment by the Parliament under that provi sion it would be open to either House to entertain a motion for the removal of a Judge
However it is open to the Parliament under Article 1245 to enact a law to regulate the entire procedure starting with the investiga tion of the allegations against the Judge concerned and ending with the presentation of the address by the two Houses of Parliament
It would be open to the Parliament to desig nate any authority of its choice for investi gating the allegations and also to regulate the 55 procedure for the consideration of the matter in either House
As soon as a law has been enacted all its provisions would be binding on both Houses of Parliament and would even override any Rules flamed by the two Houses under Article 118 of the Constitution
It will not be permissible for either House to act contrary to the provi sions of such Act
The question as to when and in what circumstances motion would be allowed to be moved in either House of Parliament to lift the ban against the discussion of conduct of a Judge under Article 121 would be accord ing to such Act of Parliament
In regard to the first and the second alternative propo sitions the deliberations of the Joint Select Committee would indicate a sharp divide amongst the eminent men who gave evidence
Particularly striking is the sharp contrast between the opinions of Mr KK Shah and Mr MC Setalvad
The first view would tend to leave the matter entirely with the House which can adopt any procedure even differing from case to case
The matter would be entirely beyond judicial review
Then there is the inevitable  element of political overtone and of contemporary political exacerbations arising from inconvenient judicial pronouncements thus endangering judicial independence
The third view would suffer from the same infirmities except that Parliament might itself choose to discipline and limit its own powers by enacting a law on the subject
The law enacted under Article 1245 might be a greatly civi lized piece of legislation deferring to values of judicial independence
But then the Parliament would be free to repeal that law and revert hack to the position reflected in the first view
The third view can always acquire back the full dimensions of the first position at the choice of the Parliament
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 1244
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 inves tigation and inquiry in the two Houses
Let us elaborate on this
56 36
Article 121 and the material parts of Article 124 read as under 121
Restriction on discussion in Parlia ment
No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the Presi dent praying for the removal of the Judge as hereinafter provided
Establishment and constitution of Supreme Court
1      2 Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years Provided that in the case of appointment of a Judge other than the Chief Justice of India shall always be consulted Provided further that a a Judge may by writing under his hand addressed to the President resign his office b a Judge may be removed from his office in the manner provided in clause 4
4 A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of not less than two thirds of the members of that House present and voting has been pre sented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity
5 Parliament may by law regulate the proce dure for the presentation of an address and for the investigation and proof of the misbe haviour or incapacity of a Judge under clause 4
 Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any Judge is lifted upon a motion for presenting an address to the President praying for the removal of a Judge as hereinaf 57 provided 
The word motion  and as hereinafter provid ed  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 incapaci ty
Then arises the question as to how the investigation and proof of misbehaviour or incapacity preceding the stage of motion for removal on the ground of proved misbehaviour or incapacity under Article 1244 is to be carried on
Clause 5 of Article 124 provides for enactment of a law for this purpose
The seminal question is whether clause 5 is merely an enabling provision particularly in view of the use of the word may  therein or it incorporates a condition precedent on the power of removal of the parliament
In other words can the function of removal under Article 1244 be per formed without the aid of a law enacted under clause 5If it can be then the power for investigation and proof of misbehaviour or incapacity of a Judge must be found in clause 4 itself and the scope of clause 5 limited only to enactment of a law for this limited purpose if the Par liament so desires and not otherwise
The other view is that clause 5 contains a constitutional limitation on the power of removal contained in clause 4 so that it can be exer cised only on misbehaviour or incapacity proved in accord ance with the law enacted under clause 5
In such situa tion the power of the Parliament would become available only for enacting the law under clause 5 and if misbeha viour or incapacity is proved in accordance with such law
The motion which lifts the bar contained in Article 121 is really a motion for such removal under clause 4 of Article 124 moved in the House after the alleged misbehavior or incapacity has been proved in accordance with the law enact ed by the Parliament under clause 5 of Article 124
In this connection the parliamentary procedure commences only after proof of misbehaviour or incapacity in accordance with the law enacted under clause 5 the machinery for investi gation and finding of proof of the misbehaviour or incapaci ty being statutory
governed entirely by provisions of the law enacted under clause 5
This also harmonises Article 121
The position would be that an allegation of misbeha viour or incapacity of a Judge has to be made investigated and found proved in accordance with the law enacted by the Parliament under Article 1245 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 removal 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 presenting an address to the President praying for removal of the Judge the bar
on 58 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 consequence would ensue de pending on the outcome of the motion in a House of Parlia ment
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
If it be accepted that clause 4 of Article 124 by contains the complete power of removal and the enactment of a law under clause 5 is merely enabling and not a consti tutional limitation on the exercise of the power of removal under clause 4 then some other questions arise for con sideration
If clause 5 is merely an enabling provision then it cannot abridge the scope of the power in clause 4 and therefore the power of a House of Parliament under clause 4 cannot be curtailed by a mere enabling law enact ed under clause 5 which can be made only for the purpose of aiding or facilitating exercise of the function under clause 4
In that situation enactment of the enabling law under clause 5 would not take the sphere covered by the law outside the ambit of Parliament s power under clause 4
The argument that without enactment of the law under clause 5 the entire process from the time of initiation till presentation of the address to the President including investigation and proof of the misbehaviour or incapacity is within the sphere of Parliament but on enactment of a law under clause 5 that area is carved out of the Parlia ment s sphere and assumes statutory character appears tenu ous
If the argument were correct then clause 5 would merely contemplate a self abnegation
The other view is that clause 4 of Article 124 gives power to the Parliament to act for removal of the Judge on the ground of proved misbehaviour or incapacity in the manner prescribed if the matter is brought before it at this stage and for reaching that stage the Parliament is required to enact a law under clause 5 regulating the procedure for that purpose
This means that making of the allegation initiation of the proceedings investigation and proof of the misbehaviour or incapacity of a Judge are governed entirely by the law enacted by the Parliament under clause 5 and when that stage is reached the Parliament comes into the picture and the motion for removal of the Judge on the ground of proved misbehaviour or incapacity is moved for presentation of the address to the President in the manner prescribed
The matter not being before the Parliament prior to this stage is also indicated by Article 121 which lifts the bar on discussion in Parliament only upon a motion for presenting an address to the President as provided later in Article 1244
The bar in 59 Article 121 applies to discussion in Parliament but investi gation and proof of misconduct or incapacity cannot exclude such discussion
This indicates that the machinery for investigation and proof must necessarily be outside Parlia ment 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 ie as a result of a judicial process
The policy appears to be that the entire stage upto proof of misbehaviour or incapacity beginning with the initiation of investigation on the allegation 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
If this be so it is a clear pointer that the Parliament neither has any role to play till misconduct or incapacity is round proved nor has it any control over the machinery provided in the law enacted under Article 1245
The Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbehaviour or incapacity has been proved
The enacted under Article 1245 itself indicates that the Parliament so understood the integrated scheme of Articles 121 1244 and 1245
The general scheme of the Act conforms to this view
Some ex pressions used in the Act particularly sections 3 and 6 to suggest that the motion is initiated in the House or is kept pending in the House during investigation can be reconciled if this Constitutional Scheme is accepted
Those expressions appear to have been used since the authority tO entertain the complaint is SpeakerChairman  the complaint is de scribed as motion  and the complaint can be made only by the specified number of Members of Parliament
In substance it only means that the specified number of MPs
alone can make such a complaint the complaint must be made to the SpeakerChairman  on receiving such a complaint if the SpeakerChairman form the opinion that there is a prima facie case for investigation he will constitute the judi cial committee as prescribed and if the finding reached is guilty  then the SpeakerChairman commences the parliamen tary process in accordance with Article 1244 for removal of the Judge and the bar in Article 121 is lifted
If this be the correct position then the validity of law enacted by the Parliament trader clause 5 of Arti cle 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 proc ess 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 60 the process and progress of inquiry under the Judges in quiry Act 1968 and consequently exclusion of this Court s jurisdiction in the matter at this stage does not arise
For the same reason the question of applying the doctrine of lapse to the motion made to the Speaker giving rise to the constitution of the Inquiry Committee under the Act also does not arise and there can be no occasion for the House to say so at any time
If the House is therefore 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 argument 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 1244
It is not the law enacted under Article 1245 which abridges or curtails the parliamentary process or exclusive ly 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 discussing a Judge s conduct in the Parliament arises and therefore the bar under Article 121 is lifted
in short the point of time when the matter comes first before the Parliament in the Constitutional Scheme Article 121 provides that the bar is lifted
The other view creates difficulties by restricting discussion in Parliament on a motion which would be before it
The suggestion to develop a convention to avoid discus sion at that stage or to prevent it by any other device adopted by the Speaker after admitting the motion does not appear to be a satisfactory solution or explanation
That this obvious situation could have been left unprovided for and the field left to a convention to be developed later while enacting these provisions with extreme care and cau tion in a written Constitution is extremely unlikely
This indicates that this area is not left uncovered which too is a pointer that the stage at which the bar in Article 121 is lifted is the starting point of the parliamentary process ie when the misbehaviour or incapacity is proved the stage from the initiation of the process by  making the allegation its mode investigation and proof are covered by the law enacted under clause 5 in case the allegation is not proved the condition precedent to invoke the Parlia ment s jurisdiction under clause 4 does not exist which is the reason for section 6 of 1968 Act saying so and in case it is proved the 61 process under clause 4 commences culminating in the result provided in it
In Part V of the Constitution relating to The Union  Article 124 is in Chapter IV The Union Judiciary  while Articles 118 and 119 relating to Parliament s power to make rules or enact a law to regulate its procedure and the conduct of its business are in Chapter II Parliament  under the heading Procedure Generally  wherein Article 121 also finds place
The context and setting in which clause 5 appears along with clause 4 in Article 124 indicate its nature connected with clause 4 relating to curtailment of a Judge s tenure clause 4 providing the manner of removal and clause 5 the pre requisite for removal distin guished from Articles 118 119 and 121 all of which relate to procedure and conduct of business in Parliament
Article 1245 does not therefore operate in the same field as Article 118 relating to procedure and conduct of business in Parliament
Accordingly the scheme is that the entire process of removal is in two parts the first parts 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 and the second part only after proof under clause 4 is in Parliament that process commencing only on proof 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
The Constitution intended a clear provision for the first part covered fully by enacted law the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process
It is this synthesis made in our Constitutional Scheme for removal of a Judge
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 misbehaviour 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
This indicates 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
62 45The 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 of removal is the ground of behaviour  while in clause 4 of Article 124 it is the ground of proved misbehaviour or incapaci ty 
The procedure for removal of a member of the Public Service Commission is also prescribed in clause 1 which provides for an inquiry by the Supreme Court on a reference made for this purpose
In the case of a Judge the procedure for investigation and proof is to be in accordance with the law enacted by the Parliament under clause 5 of Article 124
In view of the fact that the adjudication of the ground of misbehaviour under Article 317 1 is to be by the Su preme Court in the case of a Judge who is a higher consti tutional functionary the requirement of judicial determina tion of the ground is re inforced by the addition of the word proved  in Article 1244 and the requirement of law for this purpose under Article 1245
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 general 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
On the other hand if the word shall  was used in place of may  in clause 5 it would have indicated that it was incumbent on the Parliament to regulate even the proce dure for presentation of an address by enacting such a law leaving it no option even in the matter of its procedure after the misbehaviour or incapacity had been investigated and found true Sometimes the legislature uses the word may out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed  See State of Uttar Pradesh vs Joginder Singh  at 202
Indeed when a provision is intended to effectuate a right here it is to effectuate a constituational protection to the Judges under Article 124 4 even a provision as in Article 124 5 which may otherwise seem merely enabling becomes mandatory
The exercise of the powers is rendered obligatory
In Fred eric Guilder julius vs The Right Rev
The Lord Bishop of Oxford the Rev Thomas Tellsson Carter 1879 80 5 AC 214 at p 24zt Lord Blackburn said The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right  63 In Punjab Sikh Regular Motor Service Moudhapura vs The Regional Transport Authority Raipur  Anr   this Court referring to the word may  in Rule 63 a in Central Provinces and Berar Motor Vehicles Rules 1940 observed 
On behalf of the appellant attention was drawn to the expression may  in Rule 63
But in the context and the language of the rule the word may  though permissive in form must be held to be obligatory
Under Rule 63 the power to grant renewal of the counter signa ture on the permit in the present case is conferred on the Regional Transport Authority Bilaspur
The exercise of such power of renew al depends not upon the discretion of the authority but upon the proof of the particular cases out of which such power arises Ena bling words are construed as compulsory when ever the object of the power is to effectuate a legal right 
See Julius vs Bishop of Oxford 5 AC 214 244  If the word may  in Article124 5 is given any other meaning that sub Article would render itself to be treated by the Parliament as superfluous redundant and otiose
The power to prescribe a procedure for the exercise of power under Article 124 4 could otherwise also be available to the House
The law envisaged under Article 1245 is not such a law but one which would effectuate the constitution al policy and philosophy of the machinery for removal of Judges
The use of the word may  does not therefore neces sarily 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 incapacity or not
The mere fact that clause 5 does not form a part of clause 4 itself as appears to have been considered at one stage when the constitution was being drafted does not reduce the significance or content of clause 5
It is likely that the framers of the Constitution thought of clearly demarcating the boundaries and therefore indicated that upto the stage of proof of misbehaviour of incapacity the field is covered by a law enacted by the Parliament the first pan being covered by clause 5 and the latter by clause 4 with the only difference that the Parliament was given the option to regulate even the procedure for the presentation of an address after the misbehaviour or inca pacity had been proved by enacting a law for the purpose to make it more definite and consistent
64 48
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 to the enact ment under Article 1245 cannot be a safe guide to deter mine the scope of Article 1245
If this construction of the inter connection amongst Articles 118121 124 4 and 124 5 is the proper one to be placed on them as indeed we so do the provisions of the do not foul with the Constitutional Scheme
On scope of the law under Article 1245 the idea of regulating procedure for i Presentation of the address ii Investigation and proof of misbehaviour or incapacity admit of two possible options of interpretation
The idea of Presentation of the address may be confined to the actual presentation of address by both Houses of the Parliament or may be held to cover the entire process from initiation by the motion in the House till the final act of delivery of the address
If the first view is correct the law under Article 1245 would apply at the stage of investigation and proof of misbehaviour or incapacity and at the final stage of presentation of address after the motion is adopted by both the Houses
The motion and its consideration and adop tion by the House would be outside the ambit of such law and it would be regulated by the rule of procedure made under Article I 18
This view is too narrow
By bringing in the rules of procedure of the House made under Article 118 it introduces an element of uncertainty and might affect inde pendence of the judiciary
Second view is to be preferred
It enables the entire process of removal being regulated by a law of Par liament ensures uniformity and reduces chances of arbi trariness
Article I 18 is a general provision conferring on each House of Parliament the power to make its own rules of procedure
These rules are not binding on the House and can be altered by the House at any time
A breach of such rules amounts to an irregularity and is not subject to judicial review in view of Article 122
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 65 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
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 Article 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 124 5 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 judical scrutiny under Article 1221
Indeed the Act reflectS the constitutional philoso phy 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
Indeed the dissenting note of Dr LM Singhvi in the Report of the Joint Committee on the Judges Inquiry Bill 1964 brings into sharp focus the thrust of the report of the majority
It is to be recalled that the 1964 Bill vested the power to initiate the process of removal with the Executive
That was found objectionable and inconsistent with the idea of judicial independence
However as to the nature of the authority which was the repository of the power to investigate the dissenting opinion by necessary implication emphasises the majority view which ultimately became the law
Dr Singhvi in his dissent says 10
The present Bill seeks to provide only the modality of a tribunal clothed in the nomenclature of a Committee
The Committee contemplated in the Bill may well be consid ered a tribunal or an authority within the meaning of Articles 226 and 227 of the Consti tution rendering itS work subject to judicial review and supervision
What is more the Parliament is not left with any choice in the matter and procedure of parliamen 66 tary committee has been wholly excluded
With this I am not in agreement
In both these matters in respect of which I have dissented from my esteemed colleagues in the Joint Select Committee there appears to be an imprint on the provisions of the Bill of the now defunct Burmese Constitution which provided that a notice of such resolution should be signed by not less than one fourth of the total membership of either Chamber of Parliament and further that the charge would be investigated by a special tribunal section 143 of the Burmese Constitution
In the Burmese case the special tribunal was to consist of the President or his nominee and the Speakers of the Chamber of Nationalities and the Cham ber of Deputies
I feel that the Burmese analogue is neither inspiring nor instructive and that the more highly evolved procedures of other democratic constitutions which have been tried and tested for centuries would have served us better
Our conclusions therefore on contentions B C and D are as under 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
Contention B is answered accordingly
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 discussing the conduct of a Judge in the Parliament
Article 124 4 really becomes meaningful only with a law made under Article 1245
Without such a law the constitutional scheme and process for removal of a Judge remains inchoate
Contention C is answered accordingly
The Speaker while admitting a motion and constituting a Committee to investigate the alleged grounds of misbehaviour 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 unconstitutional as abridging the powers and privileges of the House
The is constitutional and is intra vires
Contention D is disposed of accordingly
67 RE CONTENTION E 56
It is urged by Shri Sibal that having regard to the serious consequences that flow from the admission of a motion by the Speaker and the decision to constitute a Committee for investigation it is incumbent upon the Speak er to afford an opportunity to the Judge of being heard before such a decision is taken
It is urged that such decision has momentous conseqences both to the Judge and to the judicial system as a whole and that any politically motivated steps to besmear a Judge will not merely affect the Judge himself but also the entire system of administra tion of justice
If a motion brought up with collateral and oblique motives it would greatly advance the objects and purposes of if the Judge con cerned himself is heard before a decision to admit a notion which has shattering consequences so far as the Judge is concerned is taken
The minimum requirements of natural justice appropriate in the context says learned counsel require that the Judge should have an opportunity of being heard
Shri Jethmalani on the contrary contended that it would be highly inappropriate that the Speaker should issue notice to a Judge and call upon him to appear before the Speaker
That apart Shri Jethmalani said at that stage of the proceedings where the Speaker merely decides that the matter might bear investigation no decisions affecting the rights interests or legitimate expectation can be said to have been taken
Shri Jethmalam sought to point out that these proceedings could not be equated with disciplinary or penal proceedings
The Speaker does not decide anything against the Judge at that stage
Referring to the nature and purpose of such preliminary proceedings Corpus Juris Secundum Vol
48A says As a general rule disciplinary or removal proceedings relating to Judges are sui generis and are not civil or criminal in nature and their purpose is to inquire into judical conduct and thereby maintain standards of judicial fitness
p614 As to the stage at which there is a need for notice and opportunity to the Judge to be heard the statement of the law is The general rule is that before a Judge may be disciplined as by removal he is entitled to notice and an opportunity to defend even though there is no statute so requiring
Ordinarily 68 the right to defend is exercised in a trial or hearing as considered infra 51
More specifi cally the Judge is entitled to notice of the particular charges against him
In addition notice of the charge should be given suffi ciently in advance of the time for presenting a defence to permit proper preparation of a showing in opposition
pp 613 614 But negativing the position that the Judge would be entitled to notice even at the preliminary stage it is stated Investigations may be conducted into matters relating to judicial conduct as a preliminary to formal disciplinary proceedings
A judiciary commission may conduct an investi gation into matters relating to judicial conduct as a preliminary to formal discipli nary proceedings and a court may under its general powers over inferior courts appoint a special commissioner to preside over a prelim inary investigation
A court rule providing that a Judge charged with misconduct should be given a reasonable opportunity in the course of a preliminary investigation to present such matters as he may choose affords him more protection than is required by constitutional provisions
p 615 58
The position is that 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 such notice
The scheme of the statute and rules made thereunder by necessary implication exclude such a right
But that may not prevent the Speaker if the facts and circumstances 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 Commit tee for investigation without affording such an opportunity does not by itself and for that reason alone vitiate the decision
Contention E is disposed of accordingly
RECONTENTION F 59
The substance of this contention as presented by the learned counsel for the petitioner Sub Committee argued with particular emphasis by Shri RK Garg is that the constitutional machinery for removal of a Judge is merely a political remedy for judicial misbehaviour 69 and does not exclude the judicial remedy available to the litigants to ensure and enforce judicial integrity
It is urged that the right to move the Supreme Court to enforce fundamental rights is in itself a fundamental right and that takes within its sweep as inhering in it the right to an impartial judiciary with persons of impeccable integrity and character
Without his the fundamental right to move court itself becomes barren and hollow
It is urged that the court itself has the jurisdiction nay a duty to ensure the integrity and impartiality of the members composing it and restrain any member who is found to lack in those essential qualities and attainments at which public confidence is built
It is true that society is entitled to expect the high est and most exacting standards of propriety in judicial conduct
Any conduct which tends to impair public confidence in the efficiency integrity and impartiality of the court is indeed forbidden
In Corpus Juris Secundum Vol
48A refer ring to the standards of conduct disabilities and privi leges of Judges it is observed The State which creates a judicial office may set appropriate standards of conduct for a Judge who holds that office and in many jurisdictions courts acting within express or implied powers have adopted or have followed certain canons or codes of judicial conduct
The power of a particular court in matters of ethical supervision and the maintenance of standards for the judiciary may be exclusive
Guidelines for judicial conduct are found both in codes of judicial conduct and in general moral and ethical standards expected of judi cial officers by the community
Canons or codes are intended as a statement of general principles setting forth a wholesome standard of conduct for judges which will reflect credit and dignity on the profession and illsolar as they prescribe conduct which is malum in so as opposed to malum prohibitum they operate to restate those general prinici ples that have always governed judicial con duct
Although these canons have been held to be binding on judges and may have the force of law where promulgated by the courts except as legislatively enacted or judicially adopted they do not of themselves have the force and effect of law
pp 593 594 the nature of prescribed conduct it is stated 70 A Judge s official conduct should be free from impropriety and the appearance of impro priety and generally he should refrain from participation in activities which may tend to lessen public respect for his judicial office
It is a basic requirement under general guidelines and canons of judicial conduct that a Judge s official conduct be free from impropriety and the appearance of impropriety and that both his official and personal beha viour be in accordance with the highest standard society can expect
The standard of conduct is higher than that expected of lay people and also higher than that expected of attorneys
The ultimate standard must be conducted which constantly reaffirms fitness for the high responsibilities of judicial office and judges must so comfor 
themselves as to dignify the administration of justice and deserve the confidence and respect of the public
It is immaterial that the conduct deemed objectionable is probably lawful albeit unjudicial or that it is perceived as lowhu mored horseplay
In particular a judge should refrain from participation in activities which may tend to lessen public respect for his judicial office and avoid conduct which may give rise to a reasonable belief that he has so participated
In fact even in his private life a judge must adhere to standards of probity and propriety higher than those deemed acceptable for oth ers
While a judge does have the right to entertain his personal views on controversial issues and is not required to surrender his rights or opinions as a citizen his right of free speech and free association are limited from time to time by his official duties and he must be most careful to avoid becoming involved in public controversies
594596 In Sampath Kumar  Ors
vs Union of India  Ors 1985  4 SCC 458 dealing with the qualifications accomplish ments and attainments of the members of the Administrative Tribunal which were intended to substitute for the High Courts this court emphasised the qualities essential for discharging judicial functions
But we are afraid 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 tribunal1 for the removal of a Judge
Learned counsel supporting the proposition 71 stated that the effect of restraining a Judge from exercis ing judicial functions is not equivalent to a removal be cause the conditions of service such as salary etc
of a Judge would not be impaired
But we think that the general proposition that the court itself has such a jurisdiction is unacceptable
It is productive of more problems then it can hope to solve
The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted
It is the entire Constitutional Scheme including the provisions relat ing to the process of removal of a Judge which are to be taken into account for the purpose of considering this aspect
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
Inciden tally this also throws light on the question of interim relief in such a matter having the result of restraining the Judge from functioning judicially on initiation of the process under the Judge Inquiry Act 1968
The Constitu tional Scheme appears to be that unless the alleged misbeha viour or incapacity is proved  in accordance with the provisions of the law enacted under Article 1245 and a motion for presenting an address for removal of the Judge on the ground of proved misbehaviour or incapacity is made because of the restriction contained in Article 121 there cannot be a discussion about the Judge s conduct even in the Parliament which has the substantive power of removal under Article 1244
If the Constitutional Scheme therefore 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 then it is difficult to accept that any such discussion of the conduct of the Judge or any evaluation or inferences as to its merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constituted under the statute for this purpose
The indication therefore is that interim direction of this kind during the stage of inquiry into the alleged misbehaviour or incapacity is not contemplated it being alien to our Constitutional Scheme
The question of propriety is however different from that of legality
The absence of a legal provision like Article 3 172 in the case of a Member of Public Service Commission to interdict the Judge faced with such an inquiry from contining to discharge judicial functions pending the outcome of the inquiry or in the event of a finding of misbehaviour or incapacity being proved till the process of removal under Article 1244 is complete does not necessarily indicate that the Judge shall continue to function during that period
That area is to be covered by the 72 sense of propriety of the learned Judge himself and the judicial tradition symbolised by the views of the Chief Justice of India
It should be expected that the learned 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 decides as an act of propriety to abstain from discharging judicial functions during the interregnum
Since the learned Judge would continue to hold the office of a Judge unless he resigns or is removed an arrangement to meet the situation has to be devised by the Chief Justice
The Constitution while providing for the suspension of a Member of a Public Service Commission in Article 3 17 2 in a similar situation has deliberately abstained from making such a provision in case of higher constitutional function aries namely the Superior Judges and President and Vice President of India facing impeachment
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 suspension
Propriety of the desirable course has to be viewed in this perspective
It 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 learned 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 the interests of the institution of judiciary it is desirable for the learned Judge to abstain from judicial work till the final outcome under Article 1244 he would advise the learned Judge accordingly
It is further reasonable to assume that the concerned learned 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 to the Chief Justice of India for this purpose
Accordingly Contention F is rejected
RECONTENTION G 63
This relates to the mala fides alleged against the Speaker
The averments in this behalf are identical in both Raj Birbal s and Sham Ratan Khandelwal s peti tions
We may notice the relevant averments It is therefore disconcerting to note that the Speaker acted contrary to Constitutional practice
It is assumed that this high Consti tutional functionary would have known of the well settled and established constitutional practice in regard to the fact that motions lapse with the dissolution of the House
The action of the Speaker therefore in admitting the motion in the manner that he did smacks of mala fides and therefore de 73 serves to be struck down
The action of the Speaker is mala fide on yet another count
The Speaker has not resigned from the primary membership of the Janta Dal
The petitioners verily believe that the first signatory to the motion is the erstwhile Prime Minister of India Shri VP Singh who happens also to be the leader of the Janta Dal
The signatories to the said motion the petition ers verily believe belong mostly to the Janta Dal though the details of this fact are not precisely known to the petitioners
The Speak er as has been indicated earlier ought to have allowed parliament to look into the matter and discuss as to whether or not the motion ought to be admitted
The Speaker ought to have at least tabled the motion in the House to ascertain the views of the Members of parliament belonging to various Houses
The Speaker to say the least ought to have transmitted all materials to Justice Ramaswami and sought a response from him before attempt ing to admit the motion
The Speaker ought to have dealt with the motion much earlier and transmitted to Justice Rammaswami all the materials as well as the views that might have been expressed to him in the course of his consultations which enabled him to come to a decision
The Speaker in the very least ought to have ascertained the wishes of the House in this regard
The Speaker ought not to have decided to admit the motion in the manner he did on the last evening of the 9th Lok Sabha amidst din and noise when what he spoke was also not entirely audible in the House
The Speaker is a high Constitutional functionary and ought to have exercised his functions in the highest traditions of the office of this high constitutional function ary
The Speaker ought also not to have dealt with the motion the prime movers of which are members of his own party the Speaker ought to have disqualified himself in this regard and placed the matter for the discussion of the House
The conduct of the Speaker in this entire episode was unbecoming of a high Con stitutional functionary
The action of the Speaker is mala fide and deserves to be struck down on this count alone The averments as to mala fides are intermixed with and inseparable from touching the merits of certain constitu tional issues
Indeed mala fides are sought to be impugned to the Speaker on the grounds that he did 74 not hear the Judge did not have the motion discussed in the House etc
We have held these were not necessary
But a point was made that the Speaker not having entered appearance and denied these allegations on oath must be deemed to have admitted them
It appears to us that even on the allegations made in the petition and plea of mala fides which require to be established on strong grounds no such case is made out
A case of mala fides 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 all events as the only statutory au thority to deal with the matter doctrine of statutory exceptions or necessity might be invoked
Contention G cannot therefore be accepted
RE CONTENTION H 65
This pertains to the locus standi of Sub Committee on the Judicial Accountability and the Supreme Court Bar Association to maintain the proceedings
If this is true then the petitioners in Transfer Petition No 278 of 1991 and other writ petitions challenging the Speaker s decision would not also have the necessary standing to sue
The law as to standing to sue in public interest actions had under gone a vast change over the years and liberal standards for determining locus standi are now recognised
The matter has come to be discussed at considerable care and length in SP Gupta  Ors
vs Union of India  Ors etc
 1982 2 SCR 365
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 prece dents over again is unnecessary
Suffice it to say that from any point of view the petitioners satisfy the legal equip ments of the standing to sue
We therefore reject the Contention H 66
We are constrained to say that certain submissions advanced on the prayer seeking to restrain the learned judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the learned judge is entitled
The arguments seemed to virtually assume that the charges had been established
Much was sought to be made of the silence of the Judge and his refusal to be drawn into a public debate
If we may say so with respect learned judge was entitled to decline the invitation to offer his explanation to his detractors No adverse inference as to substance and validity of the 75 charges could be drawn from the refusal of the learned judge to recognise these forums for his vindication
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 turpitude the judge does not suffer irreparably in the very process
The ap proach 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
We wish the level of the debate both in and outside the Court was 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 theft person al benefit but is one of the means of protecting the judi ciary 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
Learned Judge in his letter to the Registrar General which he de sired to be placed the Court had indeed expressed deep anguish at the way the petitioners had been permitted them selves to sit in judgment over him and deal with him the way they did
RE CONTENTION I 67
This argument suggests that the court should having regard to the nature of the area the decision of the court and its writ is to operate in decline to exercise its jurisdiction granting it has such jurisdiction
It is urged that any decision rendered or any writ issued might in the last analysis become futile and infructuous as indeed the Constitution of and investigation by the committee are not nor intended to be an end by themselves culminating in any independent legal consequences but only a proceeding prelim inary 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
The latter it is urged is indisputably with in the exclusive province of the Houses of parliament over which courts exercise no control or juris diction
The constitution of and the proceedings before the committee are it is urged necessarily sequential to and integral with the proceedings in the Houses of Parliament
SinCe the committee and its investigations have neither any independent existence nor separate legal effect otherwise than as confined to and for the purposes and as part of the possible prospective proceedings in the Houses of Parlia ment the court should decline to exercise jurisdiction on a matter which is of no independent legal consequence of its own and which in the last analysis falls and remains entirely in an area outside the courts  jurisdiction
It is urged 76 that both from the point of view of infructuousness propri ety and futility the court should decline the invitation to interfere even though that part of the proceedings pertain ing to the constitution of the committee might not strictly be within the exclusive area of Parliament
Courts it is urged would not allow its process to expect in a matter which will eventually merge in something over which it will have no jurisdiction
The elements of infructuousness it is suggested arise in two areas
The first is as is posited what should happen if the Houses of Parliament choose to say that in their view the motion has lapsed Would the court then go into the legality of the proceedings of the Houses of Par liament and declare the decision of the House void The second area of the suggested source of infructuous ness is as to the consequences of the position that the Houses of Parliament would notwithstanding the report of the committee be entitled to decide not to present an address to the President to remove the Judge
It is it is said for the House of Parliament to discipline the Govern ment if the House is of the view that Government is guilty of an illegal inaction on the Speaker s decision as ulti mately the House has dealt with the committee s report
On the first point there is and should be no diffi culty
The interpretation of the law declared by this court that a motion under section 32 of the  does not lapse upon the dissolution of the House is a binding declaration
No argument based on an assumption that the House would act in violation of the law need be entertained
If the law is that the motion does not lapse it is erroneous to assume that the Houses of Parliament would act in violation of the law
The interpretation of the law is within the exclusive power of the courts
So far as the second aspect is concerned what is now sought by the petitioners who seek the enforcement and implementation of the Speaker s decision is not a direction to the committee to carry out the investigation
Such a prayer may raise some issues peculiar to that situation
But here the Union
Government has sought to interpret the legal position for purposes of guiding its own response to the situation and to regulate its actions on the Speaker s decision
That understanding of the law is now found to be unsound
All that is necessary to do is to declare the correct constitutional position
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 constitu 77 tional position and leave the different organs of the State to consider matters falling within the orbit of their re spective jurisdiction and powers
Contention I is disposed of accordingly
In the result for the foregoing reasons Writ Petition Nos 491 and 541 of 1991 are disposed of by the appropriate declarations of the law as contained in the judgment
Writ Petition Nos 542 and 560 of 1991 are dismissed
Transfer Petition No 278 of 1991 is allowed
Writ Petition No 1061 of 1991 is withdrawn from the Delhi High Court
The transferred writ petition is also dismissed
SHARMA J I have gone through the erudite Judgment of my learned Brothers and I regret that I have not been able to persuade myself to share their views
In my opinion all these petitions are fit to be dismissed
The stand of the petitioners in WP C Nos 491 of 1991 and 541 of 1991 is that the inquiry with respect to the alleged misbehaviour of Mr Justice V Ramaswami the third respondent in WP C No 491 of 1991 which was referred to a Committee under the provisions of the ought to proceed and accordingly the Union of India must take all necessary steps
The main arguments on their behalf have been ad dressed by Mr Shanti Bhushan Mr Ram Jethmalani and Mr RKGarg all appearing for the petitioners in WP C No 491 of 1991 which has been treated as the main case
Al though in substance their stand is similar they are not consistent on some of the points debated during the heating of the case
They have been supported in general terms by Ms Indira Jaising and Mr PP Rao the learned counsel representing the Supreme Court Bar Association the peti tioner in WP C No 541 of 1991 and for the sake of convenience the petitioners in these two cases shall be hereinafter referred to as the petitioners
The opposite point of view has been pressed by Mr Kapil Sibal on behalf of Mrs Raj Birbal the petitioner in TP C No 278 of 1991 Mr VRJayaraman intervenor in WP C No 491 of 1991 and Mr Shyam Ratan Khandelwal the petitioner in WPC No 560 of 1991 and in view of their stand they shall be referred to as respondents in this judgment
The Committee for the investigation into the alleged misbehaviour of the third respondent was constituted on 1231991 under the provi 78 sions of the hereinafter re ferred to as the Act by Shri Rabi Ray the then Speaker of the Lok Sabha not a party in WP C Nos 491 of 1991 and 541 of 1991 but impleaded by Mr Shyam Ratan Khandelwal as respondent No 1 in WP C No 560 of 1991
The Lok Sabha was dissolved the very next day ie 1331991
Mr Attorney General appearing on behalf of the Union of India has contended that this Court should affirm the views expressed by the Union of India in its affidavit that on dissolution of the last Lok Sabha the Motion against the third respondent lapsed and the matter cannot proceed further
According to the case of the petitioners once the Committee was constituted the entire inquiry must be com pleted in accordance with the provisions of the Act and the stand of the Union Government that the Motion in this regard lapsed on the dissolution of the House is fit to be reject ed
The Union Government in the circumstances is under a duty to act in such manner by way of providing funds et cetera that it may be practically possible for the Commit tee to complete its task
Since the obligation to act ac cordingly arises under the Act this Court has full author ity to enforce the performance of the statutory duty and having regard to the circumstances in the present case it is appropriate to exercise that power
The petitioners further pray that in the meantime the third respondent should not undertake to dispose of judicial matters and since he has not himself refrained from so doing no judicial work should be allotted to him
The Chief Justice of India has also been impleaded as a party respond ent but this Court while issuing Rule Nisi after hearing learned counsel for the parties did not consider it expedi ent to issue notice to the Chief Justice
A prayer for interim direction in this regard was also rejected
During the hearing of the cases another application to the same effect was filed and was heard at considerable length and ultimately rejected by a reasoned order
Mr Sibal the learned counsel for the respondents has challenged the maintainability of the writ petitions on the ground that the matter is not justiciable
It was fur ther argued that since the Speaker proceeded to admit the Notice of Motion initiated by 108 Members of the Lok Sabha without reference to the House the order of the Speaker was void and the constitution of the Committee is ultra vires
The Speaker s order has been challenged also on the grounds of violation of principles of natural justice and mala fides
So far as the effect of the dissolution of the 79 last Lok Sabha is concerned the respondents have supported the stand of the Union Government that the Motion has lapsed but consistent with their plea
of non justiciabili ty Mr Sibal has indicated that it is for the House to decide this issue
Long arguments were addressed by the learned counsel for the parties on the correct interpretation of Article 1244 and 5 and the Act and Mr Sibal has contended that if the construction suggested by him of the provisions of the Act are not accepted the Act has to be struck down either in its entirety or in part as ultra vires the Constitution
In WP C No 560 of 1991 Mr Shyam Ratan Khandelwal has inter alia prayed for declaring the and the Rules framed thereunder as ultra vires Article 121 and 1245 of the Constitution for quashing the decision of the Speaker and for issuing a Writ of Mandamus to the Committee not to embark upon or proceed with the inquiry
He also wants a declaration that the Chief Justice of India cannot withhold allocation of work to the third respondent for discharging his judicial functions and seeks for consequential directions in this regard
During the course of his argument Mr Sibal in reply to a query from the Bench clarified the position that if his plea of non justiciability is accepted all the petitions may have to be dismissed
It is appropriate that the point relating to the jurisdiction of this Court and for that matter of any court in India is considered first
If the stand of the respond ents is correct on this issue it may not be necessary to deal with the other questions raised by the parties
In support of his argument Mr Sibal has relied upon the provisions of Article 1222 of the Constitution read with Article 93 and has urged that the present matter relates to the conduct of the business of the Lok Sabha and is included within the functions of regulating its procedure and as such the Speaker who is a Member and officer of the Parlia ment cannot be subjected to the jurisdiction of any Court in respect of the exercise of those powers
The questions whether the Motion on the basis of which the present inquiry by the Committee has been ordered has lapsed or not and whether the inquiry should further proceed or not are for the House to determine and its decision will be final
Reference was also made to Article 100 but the learned counsel clarified his stand that in the present context a special majority as indicated in Article 1244 will have to be substituted for a simple majority mentioned in Article 1001
It has been contended that the Speaker was not free to take a decision by himself to refer the matter to the Committee for inquiry and that too without hearing the Judge concerned and in any event his order is subject to any decision 80 to the contrary of the House arrived at at any stage
Emphasis was laid on the concept of Separation of State powers amongst its three wings and it was claimed that all matters within the House including moving of motions ad journment motions and debates are beyond the purview of judicial scrutiny
Counsel said that it does not make any difference that in the present case it is the Union Govern ment which has taken a decision for itself on the disputed issue and the petitioners cannot use this as an excuse for approaching the Court
The Court should refuse to entertain the writ petitions on this ground as it cannot be persuaded to do indirectly what it cannot do directly
The crux is that the matter is in the exclusive domain of the Parlia ment
Although in my final conclusion I agree with the respondents that the courts have no jurisdiction in the present matter I do not agree with Mr Sibal s contention based on an assumption of the very wide and exclusive juris diction of the Parliament in the general terms as indicated during his argument
His stand that the Speaker could not have taken a decision singly also does not appear to be well founded
He strenuously argued that since the matter relat ing to the removal of a Judge is from the very beginning within the exclusive control of one of the Houses of the Parliament every decision has to be taken by the entire House and if necessary a debate will have to be permitted
As a result the bar on discussion in the House on the Judges  conduct will disappear from the initial stage it self but that cannot be helped
He relied upon the inter pretation of Mr MCSetalvad on clauses 4  5 of Article 124 as stated by him before the Joint Committee on the Judges inquiry Bill 1964 being Bill No 5 of 1964 which was ultimately dropped and his view that the desired object of avoiding debate on the conduct of a Judge in the Parlia ment can be achieved only by the Speaker carefully exercis ing his discretion after taking into account the impropriety of such a debate
Although the powers of State has been distributed by the Constitution amongst the three limbs that is 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
A few illustrations will show that the courts  jurisdiction to examine matters involving adjudication of disputes is sub ject to several exceptions
Let us consider a case in which an individual citizen approaches the Court alleging serious violation of his fundamental rights resulting in grave and irreparable injury arising as a consequence of certain acts and the decision of his claim is dependent on the adjudication of a dispute covered by Article 262 or Article 363
He does not have a legal remedy before the courts
Similarly a Member of Parliament or of a State Legislature who 81 may have a just grievance in matters covered by Article 1222 or 2122 cannot knock the doors of the courts
Let us take another example where a group of citizens residing near the border of the country are in imminent danger of a devastating attack from an enemy country in which they are sure to lose large number of lives besides theft property
This can be averted only by accepting the terms offered by the enemy country which are in their opinion reasonable and will be highly in the interest of the nation as a whole
The concerned authorities of the State however hold a differ ent view and consider starting a war immediately as an unavoidable strategy even in the face of imminent danger to the border area
On an application by the aggrieved citi zens the Court cannot embark upon an inquiry as to the merits and demerits of the proposed action of the State nor can it direct that the residents of the threatened area must be shifted to some safe place before starting of the war
The examples can be multiplied
Generally questions involv ing adjudication of disputes are amenable to the jurisdic tion of the courts but there are exceptions not only those covered by specific provisions of the Constitution in ex press terms but others enjoying the immunity by necessary implication arising from established jurisprudential princi ples involved in the Constitutional scheme
It was observed by this Court in Smt
Indira Gandhi vs Raj Narain at page 415 that rigid Separation of Powers as under the American Constitution or under the Australian Constitution does not apply to our country and many powers which are strictly judicial have been excluded from the purview of the courts under our Constitution
Judicial power of the State in the comprehensive sense of the expression as embracing all its wings is dif ferent from the judicial power vested or intended to be vested in the courts by a written Constitution
The issue which arises in the present case is whether under the Con stitutional scheme a matter relating to the removal of a Judge of the superior courts Supreme Court or High Courts is within the jurisdiction of the courts or in any event of this Court
On a close examination of the Constitution it appears to me 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 Judici ary at the highest level and this plan having been con sciously included in the Constitution has to be kept in mind in construing its provisions
The approach appears to 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 decided
82 11
The President has to be elected by the members of an electoral college as prescribed by Article 54 in the manner indicated in Article 55
Since he has to exercise his func tions in accordance with the advice tendered by the Council of Ministers the matter relating to his impeachment has been entrusted by Article 61 to the Parliament
In the constitution of the two Houses of the Parliament and the Legislatures of the States the people of the country are involved more directly through process of election and any dispute arising therefrom is finally settled judicially
When it comes to a disqualification of a sitting member the matter is dealt with by Article 103 or 192 as the case may be and what is significant for the purpose of the present case is that instead of entrusting the matter to the rele vant House itself the Constitution has provided for a different machinery not within the control of the Legisla ture
The decision on such a dispute is left to the Presi dent and he is not to act on the advice of the Council of Ministers but in accordance with the opinion of the Elec tion Commission which has been held by this Court to be a Tribunal falling squarely within the ambit of Article 136 of the Constitution in All Party Hill Leaders Conference vs
M A Sangma  at 411
Thus the power to decide a dispute is not to be exercised by the Legislature but lies substantially with the courts
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 Execu tive and the Judiciary are thus excluded in this process
The provisions of the Constitution and the Act and relevant materials which viII be discussed later all unmistakably indicate this Constitutional plan
The scheme as mentioned above which according to my reading of the Constitution has been adopted 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 here
Hamilton in The Federalist while discussing the position in the United States observed that when questions arise as to whether a person holding very high office either in the Judiciary or the Legislature or the President himself has rendered him self unfit to hold the office they are of a nature which relates chiefly to the injuries done immediately to the society itself
Any proceeding for their removal will 83 for this reason seldom fail to agitate the passions of the whole community and divide it into parties more or less friendly or inimical to the person concerned
The delicacy and the magnitude of a trust which so deeply concerns the reputation and existence of every man engaged in the admin istration of public affairs speak for themselves
Mr Sibal has further relied on Hamilton stating that the awful discretion which a court of impeachment must necessarily have to doom to honour or to infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons
 The counsel added that presumably that is the reason that the question of removal of a Judge of the superior court has been exclusively entrusted to the parlia ment and further in that spirit the Act requires a large number of Members of the parliament to even give the Notice of Motion
Quoting from Harvard Law Review  1912 1913 vol counsel argued that judicial office is essentially a public trust and the right of the public to revoke this trust is fundamental
In a true republic no man can be born with a right to public office Under such a system of gov ernment office whether elective or appointive is in a sense a political privilege
The grant of this privilege flows from the political power of the people and so ulti mately must it be taken away by the exercise of the politi cal power resident in the people
After referring to the view of many Jurists of international repute Mr Sibal again came back to The Federalist considering the inappropri ateness of the Supreme Court of United States of America to be entrusted with the power of impeachment in the following words It is much to be doubted whether the members of that Tribunal at all times be endowed with so eminent a portion of fortitude as would be called for in the execu tion of so difficult a task and it is still more to be doubted whether they would possess the degree of credit and authority which might on certain occasions be indispens able towards reconciling the people to their decision
I am not sure whether these are theprecise considerations which appealed to the framers of our Constitution to adopt the Scheme as indicated earlier but there is no doubt that the subject dealing with the removal of the very high function aries in three vital limbs of the State received special treatment by the Constitution
My conclusion is further supported by the materials discussed below
Learned counsel for the parties referred to the historical background of the relevant provisions of the Constitution and the Act as also to the constitutional provisions of several other countries as aid to the inter pretation of the legal position in relation to removal of Judges of the superior courts
Mr Sibal laid great emphasis on the evidence of Mr 84 Setalvad and several other persons before the Joint Commit tee on the Judges inquiry Bill 1964
His argument is that the Bill was dropped as a result of the opinion expressed before the Joint Committee and consequently another Bill was drafted which was ultimately adopted by the Parliament as the 1968Act
The provisions of the earlier Bill objec tions raised thereto and the fact that the Act of 1968 was passed on a subsequent Bill reconstructed immediately after the decision to drop the original Bill are all permissible aids to the interpretation of the legal position which has to be ascertained in the present cases before us
Although the learned counsel for the petitioners challenge their admissiblity portions of the documents referred to by Mr Sibal were attempted to be construed on behalf of the peti tioners as supporting their stand
In my view it is permis sible to take into consideration the entire background as aid to interpretation
The rule of construction of statutes dealing with this aspect was stated as far back as in 1584 in Heydon s case 76 ER 637 and has been followed by our Court in a large number of decisions
While interpreting Article 286 of our Constitution reliance was placed by this Court in the Bengal Immunity Company vs The State of Bihar at 632  633 on Lord Coke s dictum in Heydon s case and the observations
of the Earl of Halsbury in Eastman Photographic Material Company vs Comptroller General of Patents L R at p 576 reaffirm ing the rule in the following words My Lords it appears to me that to construe the statute in question it is not only legit imate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise and to the later Act which provided the remedy
These three being compared I cannot doubt the con clusion
In B Prabhakar Rao vs State of Andhra Pradesh 1985 Suppl
2 SCR 573 the observa tions at p 591 quoted below are illuminat ing Where internal aids are not forthcoming we can always have recourse to external aids to discover the object of the legislation
Exter nal aids are not ruled out
This is now a well settled principle of modern statutory con struction
Thus Enacting History  is rele vant The enacting history of an Act is the surrounding corpus of public knowledge rela tive to its introduction into Parliament as a Bill and subsequent progress through and ultimate passing by Parliament
In particular it is the extrinsic material assumed to be within the contemplation of Parliament when it passed the Act Again In the period im 85 mediately following its enactment the history of how an enactment is understood forms part of the contemporanea expositio and may be held to throw light on the legislative inten tion
The later history may under the doc trine that an Act is always speaking indicate how the enactment is regarded in the light of development from time to time
Official statements by the government department admin istering an Act or by any other authority concerned with the Act may be taken into account as persuasive authority on the meaning of its provisions
Justice may be blind but it is not to be deaf
Judges are not to sit in sound proof rooms
Committee reports Parliamentary debates Policy statements and public utterances of official spokesmen are of relevance in statu tory interpretation
But the comity the courtsey and respect that ought to prevail between the two prime organs of the State the legislature and the judiciary  require the courts to make skilled evaluation of the extra textual material placed before it and exclude the essentially unreliable Nevertheless the court as master of its own procedure retains a residuary right to admit them where in rare cases the need to carry out the legisla tor s intention appears to the court so to require
With a view to correctly interpret the Act which was the subject matter of that case the history and the succession of events including the initial lowering the age of superan nuation the agitation consequent upon it and the agreement that followed the agitation were all taken into considera tion
I accordingly propose to briefly state the relevant background of both the Constitutional provisions and of the Act
At the time of framing of the Constitution of India the Constitutions of several other countries which appeared to be helpful were examined and a Draft was initially prepared
On the amendment moved by Sir Alladi Krishnaswamy Iyyar the relevant provision was included in the Draft in terms similar to section 72ii of the Commonwealth of Australia COnstitution Act 1900 except the last sentence in the following terms Further provision may be made by the Federal Law for the procedure to be adopted in this behalf
 When the matter was finally taken up by the Constituent Assembly the Debates indicate that there was a categorical rejection of the suggestion to entrust the matter to the Supreme Court or a Committee of a 86 number of sitting Judges of the Supreme Court and while doing so the law of the other Commonwealth countries were taken into consideration
So far the last sentence of the draft was concerned Sir Alladi explained the position by stating that such a provision does not occur in other Constitutions but there is a tendency to overelaborate the provisions on our side and that is the only justification for my putting in that clause
Before further considering the Debates and the other steps in flaming of the Constitution it may be useful to appreciate the relevance and importance of the point which has an impact on the controversial issue before us
Accord ing to the petitioners the question relating to the removal of a Judge comes to the Parliament only on receipt of a report by the Committee under the Act
The Parliament or any of its Houses not being in the picture earlier does not have any control over the Committee which is to function purely as a statutory body and therefore amenable to the jurisdiction of this Court
If this stand is correct what was the position before 1968 when there was no Act The question is whether the Parliament did not have any power to take any action even if an inquiry in the alleged misbeha viour or incapacity of a Judge was imminently called for
In other words whether the exercise of the power under clause 4 of Article 124 by the Parliament was dependent on the enactment of a law under clause 5 and until this condition was satisfied no step under clause 4 could be taken
If on the other hand the Parliament s power was not subject to the enactment of a law was it divested of this jurisdiction when it passed an Act On what principle could the initial jurisdiction of the Parliament disappear in 1968 Since this aspect has a bearing it was the subject matter of some discussion during the arguments of the learned advocates
Mr Sibal was emphatic in claiming that clause 5 was enabling in nature and clause 4 could not be inter preted as dependent on clause 5
He relied on Mr Setal vad s evidence before the Joint Committee of Bill No 5 of 1964
The stand of Mr Shanti Bhushan instructed by Mr Prashant Bhushan the Advocate on record on behalf of the petitioner in the leading case Writ Petition C No 491 of 1991 has been that clause 5 was merely enabling but not in the sense as stated by Mr Setalvad in his evidence
In the view of the latter it is open to the Parliament either to follow the procedure laid down by an Act made under clause 5 or to ignore the same in any case and adopt any other procedure
In other words even after the passing of the 1968 Act the Parliament can choose either to proceed according to the said Act or to act independently ignoring the same
Mr Shanti Bhushan said that this is not permissi ble
Once the 1968 Act was enacted the Parliament is bound to follow it but earlier 87 it was free to proceed as it liked
He however was quite clear in his submission that the exercise of power under clause 4 could not be said to be conditional on the enact ment of a law under clause 5 and that to interpret the provisions otherwise would lead to the extraordinary result that the Parliament was in a helpless condition for about 18 years till 1968 if a Judge was rendered unfit to continue
I agree with the learned counsel
The other learned advocates appearing for the peti tioners did not advert to this aspect pointedly
The stand of Mr Garg is that whether or not the third respondent is removed or whether the inquiry proceeds before the Commit tee or not he must cease to function as a Judge as his image being under a cloud must be cleared so that the people may have trust in the judiciary
Mr Ram Jethmalani the other learned counsel who appeared on behalf of the petitioner in Writ petition CNo 491 of 1991 was ini tially of the view as Mr Shanti Bhushan on the co relation of clause 4 and 5 but after some discussion he recon sidered the position and took a positive stand that the exercise of power under clause 4 was dependent on a law being enacted under clause 5 and that the Parliament was bound to proceed in accordance with the provisions of the Act
Now coming back to the Debates Mr Santhanam sug gested an amendment for including more details to which the answer of Sir Alladi was as follows We need not be more meticulous and more elaborate than people who have tried a similar case in other jurisdictions
I challenge my friend to say whether there is any detailed provision for the removal of Judges more than that in any other Constitution in the world
He requested the House to accept the general principle namely that the President in consultation with the Supreme Legislature of this country shall have that right and assured that That does not mean that the Supreme Legisla ture will abuse that power
He rejected the idea of making further additions to the provision relating to the framing of the law by saying To make a detailed provision for all these would be a noble procedure to be adopted in any Con stitution
You will not find it in any Constitution not even in the German Constitution which is particularly de tailed not in the Dominion Constitution and not even in the Act of Settlement and the later Acts of British Parliament which refer to the removal of Judges
Some members strong ly suggested that the Supreme Court of India or a number of sitting Judges of the Court should be 88 involved in the proceeding to which Sir Alladi had strong objection
He called upon the members not to provide a machinery consisting of five or four Judges to sit in judg ment over a Chief Justice of the Supreme Court
Are you really serious about enhancing the dignity of the Chief Justice of India  You are
I have no doubt about it
The clause was ultimately drafted as mentioned above vesting the power in the Supreme Parliament as there must be some power of removal vested somewhere
He pointed out that the matter was not being left in the discretion of the either House to remove a Judge but ultimate soverign power will be vested in the two Houses of the Parliament and that is the import of my amendment
In this background the Article was finally included in the Draft
Although as was clear from the statements of Sir Alladi as also the language used the intention of the Sub commit tee preparing the Draft was not to make clause 4 dependent on clause 5 still presumably with a view to allaying any misapprehension which could have arisen by including the entire provisions in one single clause they were divided and put in two separate clauses and while so doing the language was slightly changed to emphasise the limited scope of the law
Clause 4 does not state that the misbehaviour or 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 amendment if clause 5 were to be removed from the Constitution today
There is no indica tion 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
The word may  has been sometimes understood in the imperative sense as shall  but ordinarily it indicates a choice of action and not a com mand
In the present context there does not appear to be any reason to assume that it has been used in its extraordi nary meaning
It is significant to note that while fixing the tenure of a Judge in clause 2 of Article 124 proviso Co permits the premature removal in the manner provided in clause 4 without mentioning clause 5 at all
The signif icance of the omission of clause 5 can be appreciated by referring to the language of clause 2A of Article 124 directing that the age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide
On an examination of all the relevant materials I am of the view that 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 89 clause 5 in Article 124 was as indicated by Sir Alladi merely for elaborating the provisions
The other provisions with reference to which the matter needs further examination are Article 121 of the Constitution and the Act of 1968
The object of Article 121 is to prevent any discussion 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
The point is that if the entire proceeding in regard to the removal of a Judge from the very initial stage is assumed to be in the House does the bar under Article 121 get lifted at that very stage thus frustrating the very purpose of the Arti cle
There is a complete unanimity before us and rightly so that the object of Article 121 to prevent a public discussion of the conduct of a Judge is in public interest and its importance cannot be diluted
Mr Shanti Bhushan elaborated this aspect by saying that any such discussion in the House is bound to be reported through the media and will thus reach the general public and which by itself irrespec tive of the final outcome of the discussion will damage the reputation of the Judge concerned and thereby the image of the entire judiciary and must not therefore be permitted until a report against the Judge after a proper inquiry is available
Mr Sibal also agreed on the significance of Article 121 and relied on the views of several eminent international jurists but we need not detain ourselves on this point as there is no discordant note expressed by anyone before us
The question however is as to whether the object of Article 121 will be defeated if clause 4 of Article 124 is construed as complete in itself and independ ent of clause 5 and clause 5 be understood as merely giving an option to the Parliament to enact a law if it so chooses and further whether the inquiry before the Commit tee is within the control of the House of the Parliament so as to exclude an outside interference by any other authori ty including the courts
It is true that the provisions of an Act control or determine the constitutional provisions but where the meaning of an Article is not clear it is permissible to take the aid of other relevant materials
Besides in the present context where it is necessary to assess the effect of the construction of the other provisions of the Constitution and of the Act on Article 121 the Act provides useful assist ance and its importance has been greatly enhanced in view of the points urged in the arguments of the learned counsel for the parties before us
All the learned advocates for the petitioners as also the Attorney General are positive that the Act is a perfectly valid piece of legislation and no part of it is illegal or ultra vires
It is on 90 this premise that the writ petitions of the petitioners have been filed and the reliefs are prayed for
Mr Sibal repre senting the respondents has halfheartedly challenged the Act making it clear at the same time that if his interpre tation of the provisions is accepted no fault can be found with the Act
Besides the foundation of the reliefs asked for in the writ petitions is the Act and the inquiry there under and if the Act itself goes the reference to the Committee of Inquiry itself will have to be held as nonex istent in the eye of Law and the writ petitions will have to be rejected on that ground alone
We must therefore assume for the purpose of the present cases that the Act is good and on that basis if the petitioners be found to be entitled to any relief it may be granted
I am emphasising this aspect as the Act gives a complete answer to the main ques tion as to whether the Committee is subject to the control of the Lok Sabha and whether this construction of the provisions defeats the purpose of Article 121
The is a short enactment containing only seven sections
Section 1 gives the title and the date of commencement Section 2 contains definitions and Section 7 deals with power to make rules
The expression motion which has not been defined in the Act is signifi cant in the scheme and naturally therefore has been sub ject of considerable discussion during the hearing of these cases
The Lok Sabha Rules flamed under Article 118 of the Constitution deal with motions in Chapter XIV
There are separate rules of procedures for conduct of business adopted by the Rajya Sabha
In view of the facts of this case I propose to refer only to the Lok Sabha Rules
Section 31 of the states that if a notice ofmotion is given for presenting an address to the Presi dent for the removal of a Judge signed in the case of a notice given in the Lok Sabha by not less than 100 members and in the case of a notice given in the Rajya Sabha by not less than 50 members of the House the Speaker or the Chair man as the case may be after consulting 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 specify as to how and to whom this notice of motion is to be addressed or handed over and it is not quite clear how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account
Rule 185 states that notice of motion shall be given in writing addressed to the Secretary General and its  admissi bility should satisfy the conditions detailed in Rule 186
Rule 187 directs the 91 Speaker to examine and decide the admissibility of a mo tion or a part thereof
Rule 189 says that if the Speaker admits notice of a motion and no date is fixed for discus sion of such motion it shall be notified in the BUlletin with the heading NoDay Yet Named Motions
It is at this stage that 1968 Act by Section 31 takes over the matter and asks the Speaker to take a decision for admitting this motion or refusing it after consulting such persons and materials as he deems fit
The conclusion is irresistible that the provisions of the Act have to be read along with some of the Lok Sabha Rules
Rules 185 186 and 187 should be treated to be supplementary to the Act
Then comes sub section 2 of Section 3 which is of vital importance in the present context
It says that if the motions referred to in sub section 1 is admitted the Speaker shall keep the motion pending and constitute a Committee for investigation into the allegations consisting of three members of whom one shall be chosen among Chief Justice and other Judges of the Supreme Court and another from among the Chief Justices of the High Court
The situs where the motion is pending is almost conclusive on the issue whether the House is seised of it or not
Unless the motion which has to remain pending as directed by Section 32 is outside the House and the Speak er while admitting it acts as a statutory authority and not qua Speaker of the Lok Sabha as is the case of the peti tioners before us the petitioners will not have any base to build their case on
If the Speaker has admitted the mo tion in the capacity as the Speaker and consequently therefore representing the House and has constituted a Committee it will be entirely for him and through him the House to pass any further order if necessary about the future conduct of the Committee and not for this Court for the Committee cannot be subjected to a dual control
So the question to ask is where is the motion pending which is promptly answered by the provisions in the Act by de claring that it remains pending in the House
Section 6 deals with the matter from the stage when the report of the Committee is ready and sub section 1 says that if the report records a finding in favour of the Judge the motion pending in the House shall not be proceeded with
If the report goes against the Judge then the motion referred to in sub section 1 of Section 2 shall together with a report of the Committee be taken for consideration by the House or the Houses of Parliament in which it is pending
The Act therefore does not leave any room for doubt that the motion remains pending in the House and not outside it
This is again corroborated by the language used in Proviso to Section 3 2 which deals with cases where no tices ofmotion 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 92 both Houses and where such motionhas been admitted in both Houses the Committe shall be constituted jointly by the Speaker and the Chairman
The rule making power dealt with in Section 7 is in the usual terms enumerating some of the subject matters without prejudice to the generality of the power and permits the Joint Committee of both Houses of Parliament to frame the rules and accordingly the Judges Inquiry Rules 1969 were made
Rule 2e of these Rules describes motion as motion admitted under Section 31 of the Act
Supplementing the provisions of Section 62 Rule 162 provides that a copy of the motion admitted under sub section 1 of section 3 shall be reproduced as an Annexure to such an address
Sub rule 4 states that the address prepared under subrule 1 and the motion shall be put to vote together in each House of Parliament
It is clear that it is not an inadvertent reference in the Act of the motion being pending in the House the provisions unmistakably indicate that the Act and the Rules 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 consist ently used on this premise and is not capable of being ingored or explained away
Nowhere in the Act or the Rules there is any provision which can lend any support to the stand of the petitioners before us
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 section 62 of the Act directs that the Motion the same original Motion shall together with the report be taken up for consideration by the House where the Motion is pending
The relevant part of section 62 mentions 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 in which it is pending
Rule 164 states that the address and the Motion shall 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 as has been urged on behalf of the petitioners nothing remains on which the Act would operate
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 93 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 the Act
Bereft of the same the Act does not survive
It is therefore not permissible to read the Act consistent with the stand of the petitioners that the House is not seised of the Motion and 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 as suggested on behalf of the petitioners the Act will have to be struck down as ultra vires or in any event inoperative and infructuous and on this ground alone the Writ Petitions are liable to be dismissed
It has been contended that if the Motion is held to be pending in the House on its admission the object of Article 121 shall be defeated
The apprehension appears to be misconceived
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 enforce it
He has to ensure that Article 121 is obeyed in terms and spirit and as a matter of fact there is no complaint of any misuse during the last more than 41 years
The question however is whether it will not be feasible for the Speaker to maintain the discipline if the Motion on admission becomes pending in the House
Before 1968 Act was passed the motion like any other motion was governed by the Lok Sabha Rules and Rule 189 enabled the Speaker to notify it as a No Day Yet Named Motion without fixing a date and to permit the matter to be discussed only at the appropriate stage
After the Act what was left within the discretion of the Speaker has been replaced by mandatory statutory provision directing that the motion shall remain pending in the House to be taken up only on receipt of a finding of the Committee against the Judge
The pendency of the motion in the House therefore cannot be a ground to violate Article 121
Mr Sibal however claimed that the members of the House are entitled to express their opinion on the proposed endictment from the very initial stage and as a part of his argument relied upon the statement of Mr Setalvad before the Joint Committee
Mr Shanti Bhushan challenged the views of Mr Setalvad on the ground that they would foul with Article 121
I am afraid the statements of Mr Setalvad referred to above have not been properly appeciated by either side
The modified Bill on the basis of which the 1968 Act was passed had not been drafted by then and Mr Setalvad was expressing his opinion on the earlier Bill which substantially vested the power of removal of a Judge in the Executive and kept the Parliament out of the picture until the receipt of a report on the 94 alleged misbehaviour or incapacity
If that Bill had been passed the effect would have been that the entire proceed ing beginning with the initiation of the inquiry and con cluding with the report would have remained completely outside the House an interpretation which is being attempt ed by the present petitioners before us on the present Act too
The objection to the entrustment of the power to the Executive was mainly on the ground that the intention of the Article 124 to leave the removal of a Judge in the hands of the Parliament would be frustrated
In answer to a query of the Chairman of the Committee Mr Setalvad said that as a result of the provisions of the Bill then under considera tion the Parliament would be completely kept out until a finding of another body was received by the House and this would militate against the constitutional scheme
In this background when his attention was drawn to the bar of Arti cle 121 he replied that it was possible to prevent a prema ture discussion in the Parliament by the Speaker exercising his authority with discretion
He referred to the Lok Sabha Rules in this context and furher recommended for the Speaker to be vested with larger powers
He was emphatic that the President should not be entrusted with the matter even at the initial stage and that it should be left in the hands of the Speaker to take appropriate steps
The suggested substitution of the Speaker and the Chairman in place of the President was in accordance with the view that the matter is within the exclusive domain of the two Houses of the Parliament which could exercise its powers through the respective representatives Speaker and the Chairman
About Mr Setalvad s evidence I would like to clarify the position that I am not treating his opinion as an authority and I have taken into account the same as one step in the history of the present legislation starting from the original Bill of 1964
The report of the JointCommittee presented on 17th May 1966 sets out the observations of the Committee with regard to the principal changes proposed in the Bill
Para graph 17 of the Report dealing with clause 2 states that the expression Special Tribunal has been substituted by Committee and Speaker and Chairman have been brought in with a view to ensuring that the Committee may not be subject to writ jurisdiction of the Supreme Court  the High Courts
With respect to clause 3 the following observa tions of the Committee are relevant The Committee are of the view that to ensure and maintain the independence of the judici ary the Executive should be excluded from every stage of the procedure for investigation of the alleged misbehaviour or incapacity of a Judge and that the initiation of any proceed ing against a Judge should be made in Parlia ment by a notice of a motion
The Committee 95 also feel that no motion for presenting an address to the President praying for the removal of a Judge should be admitted unless the notice of such motion is signed in the case of a motion in the Lok Sabha by not less than one hundred members of that House and in the case of a motion in Rajya Sabha by not less than fifty members of that House
Fur ther the Committee are of the opinion that the Speaker or the Chairman or both as the case may be may after consulting such persons as they think fit and after considering such materials as may be available either admit or reject the motion and that if they admit the motion then they should keep the motion pending and constitute a Committee consisting of three members one each to be chosen from amongst the Chief Justice and other Judges of the Supreme Court Chief Justice of the High Courts and distinguished Jurists respective ly
Paragraph 20 of the Report deals with clause 6 and the proposed changes that were more consistent with the motion being pending in the House or Houses
Ultimately another Bill on the lines suggested by the aforesaid Joint Committee was drafted and adopted
Mr Setalvad s opinion is relevant as an important step in this history of legislation and can be referred to as such
The wider proposition put forward by Mr Sibal that the House was seised of the matter so effectively as to entitle every member to demand a discussion in the House at any stage is however not fit to be accepted
This 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
When the Speaker exercises authority either under the Lok Sabha Rules or under the1968 Act he acts on behalf of the House
As soon as he ceases to be the Speaker he is divested of all these powers
When he acts the House acts
It is another matter that he may con sult 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 consulta tion 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 question as for example the issue involved in the present 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 96 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
28 Mr Shanti Bhushan strenuously contended that such portion of the 1968 Act which direct or declare the initial motion admitted by the Speaker to remain pending in the House should be interpreted as creating a legal fiction limited for the purpose of ensuring that the bar under Article 121 is not lifted prematurely
I do not see any justification for placing this construction on the Act
This issue could not arise with reference to the original Bill which was ultimately dropped as under its scheme the matter could not have reached the Parliament before the report the Special Tribunal was laid before the Houses under the Presi dent s direction
The petitioners are trying to put an interpretation on the present Act that may lead to the same conclusion that is that the Parliament does not come in the picture until the receipt of the report from the Commit tee
This is wholly inconsistent with the original Bill not Finding favour with the Parliament
But apart from this consideration let us assume that the petitioners are right and the matter does not reach the Parliament at all before it is ready for consideration on the basis of the Inquiry Report
It cannot be suggested that even at that stage a discussion on the conduct of a Judge is banned and before this stage is reached there is no occasion for relying upon Article 121 to prevent a discussion
The situation there fore does not require the aid of any legal fiction
The consequence of accepting the argument of Mr Shanti Bhushan will be to render the aforesaid provisions of the statute wholly superfluous
Also had it been a case of a legal fiction as suggested it would attract the observations of Lord Asquith in East End Dwellings Co Ltd And Finsbury Borough Council  followed in this country in numerous cases to the effect that if you are bidden to treat an imaginary state of affairs as real you must also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed must inevita bly have flowed from or accompanied it and if the statute says that you must imagine a certain state of affairs it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs
The alternative sug gestion of Mr Shanti Bhushan that the motion on its admis sion having served its purpose is completely exhausted and a new motion is to be moved again by a member on the receipt of the Report from the Committee has also no merit for if the motion completely exhausts itself and there
fore does not remain in existence any further no problem about the lifting of the bar under Article 121 arises for being solved with the help of a legal fiction
An attempt was made by mr Shanti Bhushan to derive some support 97 from that part of clause 4 of Article 124 which requires the voting in the two Houses to take place in the same session
The provision appears to me to be absolutely irrel evant
The clause does not require that the entire proceed ing with respect to the removal of a Judge commencing with the notice of motion has to be within the same session
It refers only to the voting part
A close reading of the entire Act indicates that the language therein which com pletely demolishes the petitioners  case was consciously chosen to make the House seised of the matter and conse quently it became necessary to include the provisions di recting the motion to remain pending for the purpose of preventing a premature discussion
The Act has thus very successfully respected both Articles 124 and 121 in their true spirit by neatly harmonising them
Let us consider another argument of the petitioners that by reason of the expression on the ground of proved misbehaviour or incapacity occurring in clause 4 of Article 124 it should be held that until an adverse verdict of misbehaviour or incapacity by some other body is received by the House the matter does not come within its purview
The body in contemplation of clause 4 may be an authority completely unassociated with either House of the Parliament or the Speaker or the Chairman and the Parliament may not have any control over the same
Such authority would be purely statutory not amenable to the discipline of the Parliament but subject to the Court s jurisdiction
Merely for the reason that a statute under clause 5 prescribes the procedure in this regard by entrusting the Speaker to take a decision at the initial stage he could not cease to be a statutory authority
In other words he acts in his individual capacity under the power vested by the law and not in a representative capacity
1 do not find this con struction of clauses 4 and 5 acceptable
This would in substance deny the Parliament the power to remove a Judge exclusively vested in it by Constitution
Let us ignore the present Act and consider another statute with provisions in express terms on the lines suggested by the petitioners that is entitling the statutory authority to act independ ently of the Parliament the Speaker and the Chairman
If that could be permissible it would lead to the Parliament being reduced to a helpless spectator dependent on the statutory authority to act on or to ignore a complaint
This would be in complete violation of the intention of the Constitution to vest the power to remove a Judge exclusively in the Parliament
It must therefore be held that the Parliament is in control of the matter from the very begin ning till the end and it acted correctly in accepting the objections of the Joint Committee to the original Bill aforementioned and in passing the Act of 1968 iii the form we find it
By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter the 98 House is brought in control of the proceeding through its representative the Speaker or the Chairman
It has to be noted that 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
Mr Sibal projected another extreme point of view by contending that a finding of the Committee in favour of the Judge cannot be held to be binding on the Parliament on account of the limited scope of a statute passed under clause 5
There is no merit in this argument either
Clause 4 authorises the Parliament to act on the ground of proved misbehaviour or incapacity and clause 5 permits it to pass a law to lay down the manner in which it may become possible to do so
It is true that the Parliament can exer cise its power without formally framing a law
The House in question could in the absence of a law decide on the proce dure to be followed in a given case but it was perfectly open to it to pass an Act laying down a general code to be followed until the Act is repealed or amended
It is a well established practice for a large body to entrust investiga tions to a smaller body for obvious practical reasons and such an exercise cannot be characterised as indulging in abnegation of authority
It could have asked a Parliamentary Committee to enquire into the allegations or employed any other machinery for the purpose
The ratio in State of Uttar Pradesh vs Batuk Deo Pati Tripathi and Anr  is attracted here
In that case the Administrative Committee of the High Court constituted under the Rules of the Court resolved that the District Judge should be retired compulsorily from the service and the Registrar of the High Court communicated the decision to the State Government and thereafter circulated to all the Judges of the High Court for their information
The State Government passed orders retiring the District Judge whereupon he filed a writ petition in the High Court
The matter was heard by a Full Bench and the majority of the Judges held that the writ petitioner could not have been compulsorily retired on the opinion recorded by the Administrative Committee as the Full Court was not consulted
The application was allowed and a writ was accordingly issued
On appeal by the State Government this Court reversed the decision holding that Article 235 of the Constitution authorised the High Court to frame the rules for prescribing the manner in which the power vested in the High Court had to be exercised and observed that though the control over the subordinate courts is vested constitutionally in the High Court by the Article it did not follow that the High Court has no power to pre scribe the manner in which that control may in practice be exercised and in fact the very circumstance that the power of control which comprehends matters of a wide ranging authority vests in the entire body of Judges 99 makes it imperative that the rules are flamed so that the exercise of the control becomes feasible convenient and effective
The parliament is a far larger body than the High Court and the observations apply to it with greater force
So long as the statute enables the House to maintain its control either directly or through the Speaker the entrust ment of the investigation does not amount to abdication of power
It is a case where the Parliament has taken a deci sion to respect the verdict of the Committee in favour of the Judge consistently with clause 4 and no fault can be found
It has been stated on behalf of the respondents that the question whether the Motion against the respondent No 3 has lapsed as a result of the dissolution of the old House is agitating the minds of the members of the Lok Sabha and the issue is under consideration of the new Speaker
In support he produced a copy of the proceeding of the House
If the present Speaker holds that the Motion has lapsed and the Committee does not have any duty to perform the pro ceeding cannot be proceeded with any further
In reply the learned counsel for the petitioners claimed that after the matter is entrusted to the Committee neither he nor the Parliament at this stage can undo the admission of the Motion by the earlier Speaker or withdraw the investiga tion
If the petitioners are right then what happens if a member of the Committee becomes unavailable by any reason whatsoever or another member renders himself unfit to be on the Committee say by reason of his apparent and gross bias against or in favour of the Judge concerned coming to light after the formation of the Committee  The answer is that 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 on the other hand it is held that the Committee is an independ ent statutory body not subject to the control of the House directly or through the Speaker as the petitioners suggest the Act may be rendered unworkable
Besides this would impute to the Parliament to have done exactly what the Constituent Assembly refused to do by accepting Sir Alla di s impassioned appeal referred to above in para graph 19 not to lower the dignity of the Chief Justice of India by providing a machinery consisting of 5 or 4 Judges to sit in appeal over him
It may be noted here that the Constitution has considered it fit to entrust the inquiry in the alleged misbehaviour of a member of a Public Service Commission a constitutional functionary but lower in rank than the Supreme Court to the Supreme Court without associ ating a Chief Justice of the High Court or any other person lower in rank
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 con trol of the proceeding and not the Committee
100 32
Mr Jethmalani was fervent in his exhortation to construe the Constitution and the Act in a manner which will protect the independence of the judiciary from the politi cians and this according to him is possible only if this Court comes to an affirmative conclusion on the question of justiciability
There cannot be two opinions on the necessi ty 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
The available materials unmistakably show that great care was taken by the framers the Constitution to this aspect and the matter was examined from every possible angle before adopting the scheme as indicated earlier
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 independence to adopt and enact the Constitution as we find it
I do got see any reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and I do not have any ground for suspicion that the Members of Par liament or their representatives the Speaker and the Chair man shall not be acting in the rue spirit of the Constitu tional provisions
Similarly the task of enacting a law under clause 5 was taken up seriously by consid ering every relevant aspect and the process took several years before the Act was passed
do not propose to deal with this point any further beyond saying that the mandate of the Constitution is binding on all of us and I would close by quoting the following words from Hamilton If mankind were to resolve to agree in no institution of government until every part of it had been adjusted to the most exact stand ard of perfection society would soon become a general scene of anarchy and the world a desert
Where is the standard of perfection to be found  Who will undertake to unite the discordant opinions of a whole community in the same judgment of it and to prevail upon one conceited projector to renounce his infal lible criterion for the fallible criterion of his more conceited neighbour To answer the purpose of the adversaries of the Constitu tion they ought to prove not merely that particular provisions in it are not the best which might have been imagined but that the plan upon the whole is bad and pernicious
It has not been suggested on behalf of the petition ers or by anybody else that it is open to the Court to examine the legality of a final decision taken by the Par liament under clause 4
Even after a verdict against the Judge is returned by the Committee the Parlia ment 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 shall not have any jurisdiction to interfere in the matter
Is it conceivable in the circumstances that at the intermediate stage of investigation the Court has got the power to intervene  The answer is in the negative for more than one reason
If the control of the House continues on the proceeding throughout which can he exercised through the Speaker it cannot be presumed that the Court has a parallel jurisdiction which may result in issuance of contradictory directions
Besides the Court cannot he 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 embarassing both for the highest judicial and legislative authorities of the country
The Constitution cannot he attributed with such an intention
I therefore hold that the courts including the Supreme Court do not have any jurisdiction to pass any order in relation to a proceeding for removal of a Judge of the superior courts
Reference was made by the learned counsel for the parties to the Constitutions of several other countries but I do not consider it necessary to discuss them excepting the Australian Constitution as they do not appear to be helpful at all
As has been mentioned earlier the language of Arti cle 124 4 is similar to section 72ii of the Common wealth of Australia Constitution Act 1900 except with this difference that the Australian Constitution Actdoes not specifically provide for any law to he made for regulat ing the procedure and investigation
However the constitu tional and the legal position in Austraila is not helpful to resolve the present dispute before us as the Commonwealth of Australia Constitution Act 1900 has adopted rigid Separation of Powers between the Executive Legislature and Judiciary as has been observed by this Court on many occa sions including at page 415 in Smt
Indira Gandhi vs Raj Narain  relented to above in paragraph 9
Reference has been made by PH Lane in his commentary on the Australian Constitution to the proceedings which were initiated for removal of Mr Justice Murphy under section 72 ii of the Constitution Act
On account of sharp difference amongst the members of the Select Committee of the Senate appointed to inquire into the matter and a further failure to resolve the situation by establishing a second Committee and in view of certain other facts an adhoc legislation was passed under the name of Parliamentary Commission of Inquiry Act 1986
Under this Act further steps were being taken when Mr Justice Murphy moved the High Court of Austraila for an order of injunction challenging the validity of the Act and alleging that one of the members of the Commission constituted under the Act a 102 retired Judge was disqualified on account of bias
The application was dismissed on merits without adverting to the question of justiciability
This decision to my mind is of no help to the petitioners before us mainly on account of the difference in the Constitutional scheme of the two countries with respect to the Separation of Powers
The judicial powers there have been exclusively vested in the courts by section 71 of the Constitution Act of 1900
Lane has at page 372 of his book opined that sec tion 72 ii may be non justiciable since it seems to place the exercise under the section in Parliament itself
He however further proceeds to say that the Parliament could seek the High Court s help for example in the peripheral matter of the meaning of misbehaviour or incapacity in section 72ii
He has also referred to certain other provi sions of the Constitution Act and analysed the roles of Parliament and Court with his comments
I do not consider it necessary to proceed further beyond saying that Mr Justice Murphy s case does not provide any aid in deciding the issue in the cases before us
Although our Constitution was made after examining the Constitutions of many other countries it has adopted a pattern of its own
The learned counsel also placed a large number of decisions both Indian and foreign and since I have not found them relevant I have refrained from discussing them
None of the cases in which this Court has either interfered with the decision of the House or has refused to do so related to a proceeding for removal of a Judge and are clearly distinguishable in view of my opinion expressed above
I am also not dealing with the other points urged by Mr Sibal as I agree with him on the main issue of justiciability
I am avoiding to express any opinion 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
In view of the above findings this Court cannot pass any order whether permanent or temporary on the prayer that the respondent No 3 should not be allowed to exercise his judicial powers
In the result all the F writ petitions are dismissed
The prayer for transfer of Writ Petition No 1061 of 1991 in Transfer Petition No 278 of 1991 is allowed and that Writ Petition is also dismissed
There will be no order as to costs
NPV Petitions dis posed of


Summary:
The appellant and his co heirs mortgaged their two third interest in the property as security for a loan of Rs 27000 obtained from one Smt
Biswas the predecessor in interest of the plaintiffsrespondents
After the death of the mortgagee some of her heirs and legal representatives filed a mortgage suit on 1331961 for the recovery of the mortgage money before the Subordinate Judge and seeking enforcement and sale of the mortgaged property
The left out heir of the mortgagee originally arrayed as a defendant was transposed
as a co plaintiff
On 2571962 the trial court passed a preliminary decree for
Rs51570 totalling the principal sum and inter est and costs
The 234 decretal amount was proportioned in as much as two third was ordered as payable to the original plaintiffs and the re maining onethird to the transposed co plaintiff
The decre tal amount was to be paid by the mortgagors in 15 equal annual instalments and in default of any one of the instal ments the mortgagee plaintiffs were at liberty to apply for making the decree final and in the event of such application being made the mortgaged property or a part thereof shall be directed to be sold
Interest also was allowed on the sum due from the date of institution of the suit till the date of realisation of the entire sum
On 18121962 the proforma respondent no8 filed an appeal against the preliminary decree in the High Court
Prayer for stay of execution of the decree was rejected
Though some deposits were made on the basis of the preliminary decree there was a failure to deposit in terms thereof
Therefore a final decree was passed by the trial court on 631963 when the appeal against the preliminary decree was pending in the High Court
The decree holders representing two third interest and the decree holder representing one third interest filed two separate execution petitions for realisation of their shares under the decree
Both the execution petitions contained identical prayers for sale of the mortgaged property and the execution petitions were consolidated and numbered
On 1081963 proclamation of sale was drawn
The value of the mortgaged property was suggested as Rs 75000 and Rs 3 lacs by the decree holders and the appellant respectively
On 431968 before the sale of the property the appellant made a regular objection us 47 CPC
The appel lant had also made some more deposits within the intervening period of 412 years
The property was sold on 1531968 on the proclamation of sale as was drawn on 1081963 for Rs 100500 in favour of the auction purchasers respondents nos
6  7
On 1141968 the appellant filed an application under Order 21 Rule 90 CPC for setting aside the sale and prayed for stay of its confirmation on the grounds that the judgment debtors had no 235 saleable interest in the mortgaged property that legally two execution petitions could not be consolidated and that the provisions of section 35 of the Bengal Money Lenders  Act had been overlooked
The application under Order 21 Rule 90 was treated as part of the original objection section 47 CPC The executing Court on 1141968 dismissed the objection us 47 CPC against which the appellant preferred an appeal before the High Court
Later the petition under Order 21 Rule 90 CPC was formally dismissed in default
On 1491968 the auction sale was confirmed
In the appeal against the preliminary decree the par ties arrived at a settlement on 13121971 before the High Court
In the place of the preliminary decree dated 2171962 a new preliminary decree on settlement between the parties was passed by the High Court whereunder the secre tal amount was principally agreed not to exceed Rs54000
The sums deposited by the appellant were adjusted and the final amount struck as unpaid was put at Rs44000
Having cleared off the mortgage debt the appellant in his appeal preferred against the rejection of objection raised the additional legal ground that after the displace ment of the original preliminary decree by substitution the final decree as well as the auction sale did not survive
The High Court rejected all the legal points otherwise raised but certified as fit questions as raised to be answered by this Court without framing anyone of them as such
Hence this appeal by certificate involving the question of law as to whether a court sale held in execution of a final decree passed in a suit for recovery of mortgage money can be upset under the provisions of section 47 of CPC on the displacement of the preliminary decree upon which such final decree was based
The appellant contended that the preliminary decree dated 2571962 was a preliminary decree for sale passed in terms of Order 34 Rule 4 and the final decree dated 631963 was a final decree for sale under Order 34 Rule 53 of the CPC that the 236 right to apply for the final decree arose from the terms of the preliminary decree and on the failure of the defendant making payments in terms thereof
And since the preliminary decree of 2571962 was displaced and substituted by the preliminary decree passed b the High Court in appeal which was instantly satisfied the foundation under the final decree stood removed that the plaintiff had lost the right to ask for a final decree there was no compulsion for the purpose or the occasion to pass it and that the auction had become non est having no legal foundation or sanction in law
The respondents on the other hand contended that there could not be a reverse process when the final decree had factually been passed and an auction sale in terms thereof had taken place bringing in the rights of the stranger auction purchasers
Allowing the appeal of the judgment debtor appellant this Court HELD 1
On the substitution of the preliminary decree even though by consent there is no denying the fact that the seal of adjudication gets affixed to it
The court passing it has formally expressed the terms itself under its own authority even though at the suggestion of the parties
It conclusively determines the right of the parties with regard to the matters in controversy valid in the suit till the stage of passing of the preliminary decree
In the field the only preliminary decree is the one which was passed by the High Court substituting the original prelimi nary decree of the Trial Court and the final decree if at all required is to be passed in accordance therewith
244 B G 2
The Explanation to Section 22 of the Code of Civil Procedure defining the word decree goes to say that a decree is preliminary when further proceedings had to be taken before a suit can be completely disposed of
It is final where such adjudication completely disposes of the suit
It may be partly preliminary and partly final
244 C 3
In the instant case the preliminary decree whether as originally made or as substituted in appeal had not disposed of the suit completely
It was to be enforceable on the terms it was drawn
There were obligations for the defendants to fulfil and on the violation to observe the obligations rights accrued to the plaintiffs
It cannot be twistedly said that the obligations of the defendants may substitutedly be that as defined by the appellate prelimi nary decree but the right of the plaintiffs kept accrued on the failure of non fulfilment of the 237 obligations of the defendants under the preliminary decree of the Court of first instance
Such an interpretation or construction would render the substantive right of appeal redundant and choked defeating the ends of justice and would otherwise be ill fitted in the scheme of Order 34 CPC 244 D F 4
For the purposes of Section 47 the auction purchas er deemingly is a party to the suit in which the decree is passed if he has purchased the property at the sale and execution of that decree
245 B 5
Instantly the auction purchasers had purchased the property in execution Of the final decree and not in execu tion of the preliminary decree and on that basis can at best be deemed to be parties to the suit throughout only on the strength the final decree if obtained on the terms of the existing preliminary decree
But the property was not put to sale in execution of the preliminary decree
The auction purchasers cannot claim themselves to be parties to the suit at the time of or at any time prior to the passing of the preliminary decree
The preliminary decree and final decree are passed under Order 34 of the Code of Civil Procedure in one and the same suit in which two decrees may be required to be passed at separate stages
And both being formal adjudications to the stage are formal expressions of deci sion of the Court
At the stage of the preliminary decree there arises no question of the property under mortgage being put to sale in execution of the decree and if that is so the ultimate auction purchaser cannot be held deemingly to be party to the suit upto the stage of the preliminary decree
245 B E 6
The converse interpretation that the auction pur chaser at a sale and execution of the final decree shall be deemed to be a party to the suit at and prior to the stage when preliminary decree is passed unless sustaining would be contrary to the spirit and scheme of Order 34 of the Code of Civil Procedure
And since all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution dis charge or satisfaction of the decree are required to be determined by the Court executing the decree and not by a separate suit the objection of the appellant judgment debtor with regard to the knocking out of the original preliminary decree was sustainable
245 E G 7
In terms of the preliminary appellate decree and fulfilment of the obligations of the defendants on payment of the sum as struck there remained no occasion for enter taining maintaining or 238 sustaining the application of the plaintiff mortgagees for sale of the property mortgaged and on that basis the auction sale in favour of the auction purchasers and confirmation of that sale automatically becomes non est
The High Court went wrong in rejecting the objection of the appellant judgment debtor
245 G H 8
No compensatory sum is due to the auction purchasers under the strict terms of sub rule 2 of Rule 5 of Order 34
In exercise of the Court s inherent powers under the CPC and powers otherwise under Article 142 of the Consti tution to further the cause of complete justice confining it to the facts of the case and to be fair to the auction purchasers the appellant is directed to burden himself in paying to the auction purchasers interest on their blocked sum of Rs105000 the purchase money lying in Court since 1963 which was quantified as equivalent to the sum deposit ed
246 DE F Hukumchand vs Bansilal  Ors   Janak Raj vs Gurdial Singh and Anr  and Sardar Govindrao Mahadik  Anr
vs Devi Sahai  Ors   referred to