Sub-Committee on Judicial Accountability Vs. Union of India & Ors, [1991] INSC 276 (29 October 1991)
Ray, B.C. (J) Ray, B.C. (J) Sharma, L.M. (J) Venkatachalliah, M.N. (J) Verma, Jagdish Saran (J) Agrawal, S.C. (J)
CITATION: 1992 AIR 320 1991 SCR Supl. (2) 1 1991 SCC (4) 699 JT 1991 (6) 184 1991 SCALE (2)844
CITATOR INFO : RF 1992 SC2219 (1,2,4,8,9,16,17,23,TO 26,33,3
ACT:
Constitution of India. 1950:
Articles 124(4) and (5) and 118--Removal of Judge of Supreme Court--Motion for presenting an Address to President and decision of Speaker of Lok Sabha to admit the motion and constitute a committee under Judges (inquiry) Act for inves- tigation and proof of grounds--Whether lapses on dissolution of the Lok Sabha--Whether Judges (inquiry) Act being law under Article 124(5) excludes operation of doctrine of lapse and also rules framed under Article 118--Whether Articles 124(5) and 118 operate in different fields-Question whether the motion lapsed or not on the dissolution of Lok Sabha--Justiciability of.
Articles 124(4) and (5) and 121--Scope and interpreta- tion of-Removal of Judge of Supreme Court---Whether Justi- ciable---Enactment of law under Article 124(5) for regulat- ing procedure for investigation and proof of misbehaviour or incapacity of Judges-----Whether mandatory--Word 'may "When to be construed as 'shall '.
Articles 124(4) and (5) and 32---Removal of Judge of Supreme Court ---Apart from constitutional process, whether Supreme Court has jurisdiction to enquire into alleged misbehaviour or incapacity and restrain the concerned Judge from exercising judicial junctions--Whether it can give legal directive to Chief Justice of India not to allot any judicial work to the concerned Judge--Judge facing enquiry, continuing to discharge judicial functions-----Propriety of.
Article 32 ---Public Interest Litigation--Inquiry Com- mittee constituted by the Speaker of Lok Sabha under Judges (inquiry) Act to investigate into the alleged misconduct of Judge of Supreme Court--Writ Petitions seeking directions to Union Government to enable the Committee to discharge its functions under the Act and to restrain the Judge from performing judicial functions during pendency of proceedings before the Committee---Maintainability of--Locus standi of Sub-committee on Judi- 2 cial Accountability and Supreme Court Bar Association to sue--Whether Court could refuse to interfere on grounds of infructuousness, propriety and futility--Declaration of legal and Constitutional position--Duty of Court--Different organs of State to consider matters within the orbit of their respective jurisdictions and powers.
Judges (inquiry) Act, 1968:
Constitutional validity of. Sections 3 and 6--Removal of Judge--Motion for present- ing an address to President admitted and Committee consti- tuted by the Speaker of Lok Sabha to investigate into charges of misconduct----Whether lapses on dissolution of the House--Whether the Act, being law made under Article 124(5) of Constitution, excludes doctrine of lapse and also rules of procedure for the Lok Sabha framed under Article 118--Action of Speaker --Whether vitiated on grounds of denial of notice and pre-decisional opportunity of hearing to concerned Judge and Speaker's political affiliation ---Doctrine of statutory exceptions or necessity--Applica- bility of.
Constitutional Law:
Separation of Powers under federal set-up--Court--Inter- preter of limits of authority of different organs of State----Judicial review--Incidental to and flowing from concept of written Constitution, the fundamental and higher law.
Interpretation of Constitution:
Constructions which strengthen the fundamental feature of the Constitution to be adoped-Rule of law--Whether a basic feature---Independence of Judiciary----Whether essen- tial attribute of Rule of Law.
Aids to Construction--Constituent Assembly debates--Whether could be relied upon--Comparative Study of Constitution of other Countries-Whether afford proper per- spective--Resort to historical background-Whether permissi- ble.
Administrative Law--Natural Justice--Motion for removal of a Judge under Judges (Inquiry) Act-Speaker deciding to admit the motion and constituting a Committee to enquire into allegations of misbehaviour-Whether Judge concerned entitled to pre-decisional opportunity of hearing.
3 Practice and Procedure:
Removal of a Judge Constitutional process pending--Conduct of members of the bar--Propriety required that the Judge should not be embarrassed even before the charges were proved----Level of debate in and out of Court----To be dignified and decorous.
Words & Phrases: Word 'may '--When could be read as'shall '.
HEAD NOTE:
Upon a notice given by 108 members of the 9th Lok Sabha of a Motion for presenting an Address to the President for the removal of a sitting Judge of the Supreme Court for the alleged misconduct committed by him while he was functioning as Chief Justice of a High Court, the Speaker of the Lok Sabha admitted the Motion and constituted a Committee con- sisting of a sitting Judge of this Court, Chief Justice of a High Court and a distinguished jurist in terms of Section 3(2) of the Judges (Inquiry) Act, 1968. Subsequently, the Lok Sabha was dissolved and its term came to an end.
On its understanding that the Motion as well as the decision of the Speaker thereon had lapsed consequent on the dissolution of the Lok Sabha, the Union government did not act in aid of the decision of the Speaker, and notify that the services of the two sitting Judges on the Committee would be treated as "actual-service" within the meaning of Para 11(B)(i) of Part D of the II Schedule to the Constitu- tion.
Thereupon, a body called the Sub-Committee on Judicial Accountability, claiming to be a Sub-Committee constituted by an All India Convention on Judicial Accountability to carry forward the task of implementing the resolutions of the conventions, and the Supreme Court Bar Association, seeking to prosecute the matter in the larger public inter- est and, in particular, in the interests of litigant public, filed two Writ Petitions before this Court. Two prayers common to both the petitions were, first, that the Union of India be directed to take immediate steps to enable the Inquiry Committee to discharge its functions under the Judges (Inquiry) Act, 1968 and, second, that during the pendency of the proceedings before the Committee the con- cerned Judge should be restrained from performing judicial functions and from exercising Judicial powers.
It was contended on behalf of the petitioners that pending business lapsed on prorogation, and as a general practice the House was 4 usually prorogued before it was dissolved, but impeachment motions were sui-generis in their nature and, therefore, they did not lapse; that the question whether a motion lapsed or not was a matter pertaining to the conduct of the business of the House of which the House was the sole and exclusive master; no aspect of the matter was justiciable before a Court and Houses of Parliament were privileged to be the exclusive arbiters of the legality of their proceed- ings, that it would be highly inappropriate that the Speaker should issue notice to a Judge and call upon him to appear before him; that these proceedings could not be equated with disciplinary or penal proceedings and the Speaker would not decide anything against the Judge at that stage and would merely decide whether the matter would bear investigation;
that the constitutional machinery for removal of a Judge was merely a political remedy for judicial misbehaviour and did not exclude the judicial remedy available to the litigants to ensure and enforce judicial integrity, that the right to move the Supreme Court to enforce fundamental rights was itself a fundamental right and that took within its sweep, as inhering in it, the right to an impartial judiciary with persons of impeccable integrity and character, without which the fundamental right to move the court itself becomes barren and hollow, that the court itself had the jurisdic- tion - nay a duty to ensure the integrity and impartiality of the members composing it and restrain any member who was found to lack in those essential qualities and attainments at which public confidence is built.
Another Writ Petition was filed by an individual by way of a counter to the second prayer in the Writ Petitions filed by the SubCommittee on Judicial Accountability and the Supreme Court Bar Association. It was contended that till the Inquiry Committee actually found the concerned Judge guilty of charges, there should be no interdiction of his judicial functions and that if such a finding was recorded then thereafter till such time as the Motion for the presen- tation of the Address for the removal of the Judge was disposed of by the Houses of Parliament--which should not be delayed beyond 180 days--the President may ask the Judge concerned to recuse from judicial functions.
Another Writ Petition was also filed by a practising Advocate challenging the constitutional validity of the Judges (Inquiry) Act, 1968 as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Constitution of India and seeking a declaration that the' Motion presented by 108 Members of Parliament for the removal of the Judges 5 had lapsed with the dissolution of the Lok Sabha. The peti- tioner also sought the quashing of the decision of the Speaker admitting the Motion, on the ground of denial of opportunity of being heard to the concerned Judge before the admission of Motion and constitution of the Committee by Speaker.
A Transfer Petition was filed seeking the withdrawal by the Supreme Court to itself from the Delhi High Court the Writ Petition filed in the High Court, where reliefs were similar to those prayed for in the Writ Petition filed by the practising Advocate. The Writ Petition was directed to be withdrawn to the Supreme Court and was heard along with other Writ Petitions.
1t was contended on behalf of the petitioners in these Writ Petitions that before taking a decision to admit the motion and constituting a Committee for investigation, it was incumbent upon the Speaker, as a minimum requirement of natural justice, to afford an opportunity to the Judge of being heard since such a decision had momentous consequences both to the Judge and to the judicial system as a whole and that any politically motivated steps to besmear a Judge would not merely affect the Judge himself but also the entire system of administration of justice and therefore it would greatly advance the objects and purposes of Judges (inquiry) Act, 1968 if the Judge concerned himself was given such a hearing; that the Speaker had acted contrary to Constitutional practice, that the manner in which he had admitted the motion smacked of malafides and since the Speaker had not entered appearance and denied the allega- tions, he must be deemed to have admitted them; that having regard to the nature of the area the decision of the Court and its writ is to operate in, the Court should decline to exercise its jurisdiction, and that any decision rendered or any writ issued might, ultimately become futile and infruc- tuous as the constitution of and investigation by the com- mittee were not, nor intended to be, an end by themselves culminating in any independent legal consequence, but only a proceeding preliminary to and preceding the deliberations of the House on the motion for the presentation of an address to the President for the removal of a Judge, which was indisputably within the exclusive province of the Houses of Parliament over which courts exercised no control or juris- diction.
On behalf of the Union of india it was contended that a combined reading of Articles 107, 108 and 109 would lead irresistibly to the conclusion that upon dissolution of the House, all bills would 6 lapse subject only to the exception stipulated in Article 108, that on first principle also it required to be accepted that no motion should survive upon the dissolution of the House unless stipulated otherwise under the Rules of proce- dure and conduct of business; the doctrine of lapse was a necessary concomitant of the idea that each newly constitut- ed House was a separate entity having a life of its own unless the business of the previous House was carried over by the force of statute or rules of procedure and that the question whether a motion lapsed or not was to be decided on the basis of the provisions of law guiding the matter and the House itself was not its final arbiter and the Court alone had jurisdiction to examine and pronounce on the law of the matter.
Disposing of the cases, this Court,
HELD: By majority Per Ray. J. (for himself, Venkatacha- liah, Verma and Agrawal, J J)
1.1 Where there is a written Constitution which consti- tutes the fundamental and in that sense a "higher law" and acts as a limitation upon the Legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited Government'. Judicial review is an incident of and flows from this concept of the fundamen- tal and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. In a federal set-up, the judiciary becomes the guard- ian of the Constitution.The inter- pretation of the Consti- tution as a legal instrument and its obligation is the function of the Courts. It is emphatically the province and duty of the judicial department to say what the law is. [51 G-H, 52A, D]
1.2 In interpreting the constitutional provisions con- cerning the judiciary and its independence the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. Rule of law is a basic feature of the Constitutional fabric and is an integral part of the constitutional structure. Inde- pendence of the judiciary is an essential attribute of Rule of law. [31 D]
1.3 In construing the Constitutional provisions, the law and 7 procedure for removal of Judges in other countries afford a background and a comparative view. The solution must, of course, be found within our own Constitutional Scheme. But a comparative idea affords a proper perspective for the under- standing and interpretation of the Constitutional Scheme.
[31 G-H] Barringtons Case [1830]; Terrell v. Secretary of State for the Colonies and Another, [1953I 2 QB 482, referred to. Constituent Assembly Debates Vols. I to VI @ pp 899,900 Vol. VIII @ pp. 243-262, referred to.
Halsbury's Laws of England, 4th Ed. Vol. p 1108; She- treet 'Judges on Trial' (1976); pp. 404-405; Rodney Brazier 'Constitutional Texts' (1990) pp. 606-607; Gall 'The Canadi- an Legal System' (1983); pp. 184-186, 189; Lane's Commentary on The Australian Constitution (1986) p. 373; Mclelland 'Disciplining Australian Judges' (1990) 64 ALJ 388, at p. 403; Henry J. Abraham.' The Judicial Process, 3rd Ed. p. 45; Robert J. Janosik: Encyclopeadia of the American Judicial System, Vol II pp. 575 to 578; "The Impeachment of the Federal Judiciary" Wrisley Brown Harvard Law Review 1912- 1913 684 at page 698; 'The Judicial Process in Comparative Perspective' (Clarendon Press-Oxford 1989 at page 73); (Erskine May's "The Law, Privileges, Proceeding and Usage of Parliament" (Twenty-first Edition London Butterworths 1989);
M.N. Kaul and S.L. Shakdher in Practice and Procedure of Parliament", referred to.
2.1 It is not correct to say that the question whether a motion has lapsed or not was a matter pertaining to the conduct of the business of the House, of which the House was the sole and exclusive master, and that no aspect of the matter was justiciable before a Court. [29 C ,53 G]
2.2 The question whether the motion has lapsed is a matter to be pronounced upon on the basis of the Constitu- tion and the relevant rules. [53 E]
2.3 On such interpretation of the Constitutional provi- sions as well as the Judges (Inquiry) Act, 1968, the Courts retain jurisdiction to declare that a motion for removal of Judge does not lapse on dissolution of the House. [53F-G] Bradlaugh v. Gossett, [18841 12 Q.B.D. 271, distinguished.
8 A.K. Gopalan v. The State of Madras, |1950] SCR 88 Special Reference Case, [1965] 1 SCR 413, referred to.
Barton v. Taylor, [1886] 11 AC 197, Rediffuson (Hong Kong) Ltd. v. Attorney General of Hong Kong, [1970I AC 1136, referred to.
3.1 The constitutional process for removal of a Judge upto the point of admission of the motion, constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament.
The Speaker is a statutory authority under the Act. Upto that point the matter cannot be said to remain outside the Court's jurisdiction. [66 E]
3.2 The scheme of Articles 124(4) and (5) is that the entire process of removal is in two parts - the first part, under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliament's role being only legislative as in all the laws enacted by it, the second part under clause (4) is in Par- liament and that process commences only on proof of misbeha- viour or incapacity in accordance with the law enacted under clause (5). Thus, the first part is entirely statutory, while the second part alone is the parliamentary process.
[61 D]
3.3 The context and setting in which clause (5) appears along with clause (4) in Article 124 indicate its nature and distinguish it from Articles 118, 119 and 121, all of which relate to procedure and conduct of business in Parliament. [61 B-C]
3.4 The validity of law enacted by the Parliament under clause (5) of Article 124 and the stage upto conclusion of the inquiry in accordance with that law, being governed entirely by statute, would be open to judicial review as the parliamentary process under Article 124(4) commences only after a finding is recorded that the alleged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under clause (5). For this reason, the argument based on exclusivity of Parliament's jurisdiction over the process and progress of inquiry under the Judges (Inquiry) Act, 1968 and, consequently, exclusion of this Court's jurisdiction in the matter at this stage does not arise. [59 G-H, 60 A]
4.1 Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any Judge is lifted 'upon a 9 motion for presenting an address to the President praying for the removal of a Judge as hereinafter provided'. The words 'motion' and 'as hereinafter provided' are obvious references to the motion for the purpose of clause (4) of Article 124 which, in turn, imports the concept of "proved" misbehaviour or incapacity. What lifts the bar under Article 121 is the 'proved' misbehaviour or incapacity. Clause (5) of Article 124 provides for an enactment of law for the purpose of investigation and proof of misconduct or incapac- ity preceding the stage of motion for removal on the ground of 'proved' misbehaviour or incapacity under clause (4). [56 H, 57 A-B]
4.2 An allegation of misbehaviour or incapacity of a Judge has to be made, investigated and found proved in accordance with the law enacted by the Parliament under Article 124 (5) without the Parliament being involved upto that stage; on the misbehaviour or incapacity of a Judge being found proved in the manner provided by that law a motion for presenting an address to the President for remov- al of the Judge on that ground would be moved in each House under Article 124(4); on the motion being so moved after the proof of misbehaviour or incapacity and it being for pre- senting an address to the President praying for removal of the Judge, the bar on discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct of the Judge; and the further conse- quences would ensue depending on the outcome of the motion in a House of Parliament. If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4). [57 G-H, 58 A-B]
4.3 Thus prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for the lifting of the bar under Article 121 against dis- cussing the conduct of a Judge in the Parliament. Article 124(4) really becomes meaningful only with a law made under Article 124(5), without which, the constitutional scheme and process for removal of a Judge remains inchoate. [66 F]
4.4 The bar in Article 121 applies to discussion in Parliament but investigation and proof of misconduct or incapacity cannot exclude such discussion. This indicates that the machinery for investigation and proof must neces- sarily be outside Parliament and not within it. In other words, proof which involves a discussion of the conduct of the Judge must be by a body which is outside the limita- 10 tion of Article 121. The policy appears to be that the entire stage upto proof of misbehaviour or incapacity, beginning with the initiation of investigation on the alle- gation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it. Parliament neither has any role to play till misconduct or incapacity is found proved nor has it any control over the machinery provided in the law enacted under Article 124(5). Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbe- haviour or incapacity has been proved. The Judges (Inquiry) Act, 1968 enacted under article 124(5) itself indicates that the Parliament so understood the integrated scheme of Arti- cles 121, 124(4) and 124(5). The general scheme of the Act conforms to this view. [58 H-59 A-D]
4.5 It is not the law enacted under Article 124(5) which abridges or curtails the parliamentary process or exclusivi- ty of its jurisdiction, but the Constitutional Scheme itself which by enacting clauses (4) and (5) simultaneously indi- cated that the stage of clause (4) is reached and the proc- ess thereunder commences only when the alleged misbehaviour or incapacity is proved in accordance with the law enacted under clause (5). It is only then that the need for discuss- ing a Judge's conduct in the Parliament arises and, there- fore, the bar under Article 121 is lifted. [60 D-E]
5.1 If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) 'on ground of proved misbehaviour or incapacity', it presupposes that misbeha- viour or incapacity has been proved earlier. This is more so on account of the expression 'investigation and proof' used in clause (5) with specific reference to clause (4), indi- cating that 'investigation and proof' of misbehaviour or incapacity is not within clause (4) but within clause (5).
Use of the expression 'same session' in clause (4) without any reference to session in clause (5) also indicates that session of House has no significance for clause (5) i.e., 'investigation and proof' which is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha. [61 F-H]
5.2 The significance of the word 'proved' before the expression 'misbehaviour or incapacity' in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission. The expression in clause (1) of Article 317 used for describing the ground 11 of removal is 'the ground of misbehaviour' while in clause (4) of Article 124, it is, 'the ground of proved misbeha- viour or incapacity'.
[62 A]
5.3 Use of the word 'may' in clause (5) indicates that for the 'procedure for presentation of address' it is an enabling provision and in the absence of the law, the gener- al procedure or that resolved by the House may apply but the 'investigation and proof' is to be governed by the enacted law. The word 'may' in clause (5) is no impediment to this view. When a provision is intended to effectuate a right -- here it is to effectuate a constitutional protection to the Judges under Article 124(4) -- even a provision as in Arti- cle 124(5) which may otherwise seem merely enabling becomes mandatory. The exercise of the power is rendered obligatory.
The use of the word 'may' does not necessarily indicate that the whole of clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapaci- ty or not. [62 D, 62 G, 63 E-F] State of Uttar Pradesh v. Joginder Singh, [1964] 2 SCR 197 at 202; Punjab Sikh Regular Motor Service, Moudhapara v. The Regional Transport Authority, Raipur & Anr., [1966] 2 SCR 221, referred to.
Erederic Guilder ,Julius v. The Right Rev. The Lord Bishop of Oxford,' the Rev. Thomas Tellusson Carter, [1879-80] 5 A.C. 214 at 244, referred to.
5.4 Similarly, use of word 'motion' to indicate the process of investigation and proof in the Judges (Inquiry) Act, 1968, because the allegations have to be presented to the 'Speaker' does not make it 'motion in the House' not- withstanding use of that expression in Section 6. Otherwise, section 6 would not say that no further step is to be taken in case of a finding of 'not guilty'. It only means that when the allegation is not proved, the Speaker need not commence the process under clause (4) which is started only in case it is proved. The Speaker is, therefore, a statutory authority under the Act chosen because the further process is parliamentary and the authority to make such a complaint is given to Members of Parliament. Moreover, the enactment under Article 124(5) cannot be a safe guide to determine the scope of Article 124(5). [64 A-C]
6.1 Article 124(5) does not operate in the same field as Article 118 relating to procedure and conduct of business in Parliament.
[61C] 12
6.2 Article 118 is a general provision conferring on each House of Parliament the power to make its rules of procedure. These rules are not binding on the House and can be altered by the House at any time. A breach of the rules amounts to an irregularity and is not subject to judicial review in view of Article 122. [64 G]
6.3 Article 124(5) is in the nature of a special provi- sion intended to regulate the procedure for removal of a Judge under Article 124(4), which is not a part of the normal business of the House but is in the nature of special business. It covers the entire field relating to removal of a Judge. Rules made under Article 118 have no application in this field. [64 H, 65 A] 6.4 Article 124(5) has no comparison with Article 119.
Articles 118 and 119 operate in the same field viz., normal business of the House. It was, therefore, necessary to specifically prescribe that the law made under Article 119 shall prevail over the rules of procedure made under Article 118. Since Articles 118 and 124(5) 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 judicial scrutiny under Article 122(1). [65 B-C]
7.1 -Neither the doctrine that dissolution of a House passes a sponge over parliamentary slate nor the specific provisions contained in any rule or rules framed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a Judge under Article 124, because Article 124(5) and the law made there- under exclude the operation of Article 118 in this area. [49 F] Purushothaman Nambudiri v.. The State of Kerala, [1962] Suppl. 1 SCR 753, referred to.
7.2 The law envisaged in Article 124(5) is parliamentary law which is of higher quality and efficacy than rules made by the House for itself under Article 118. Such a law can provide against the doctrine of lapse. [50 H] 7.31n the constitutional area of removal of a Judge, the law made under Article 124(5) must be held to go a little further and to exclude the operation of the Rules under Article 118 and no ques- 13 tion of repugnance could arise to the extent the field is covered by the law under Article 124(5). [51 C] State of Punjab v. Sat Pal Dang & Ors, [1969] 1 SCR 478, relied on.
8.1 The Judges (Inquiry) Act, 1968 reflects the consti- tutional philosophy of both the judicial and political elements of the process of removal. The ultimate authority remains with the Parliament in the sense that even if the Committee for investigation records a finding that the Judge is guilty of the charges, it is yet open to the Parliament to decide not to present an address to the President for removal. But if the Committee records a finding that the Judge is not guilty then the political element in the proc- ess of removal has no further option. The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial inde- pendence. The provisions of the Judges (Inquiry) Act do not foul with the constitutional scheme. [65 B-C, 64 C]
8.2 The Speaker, while admitting a motion and constitut- ing a Committee to investigate the alleged grounds of misbe- haviour or incapacity does not act as part of the House. The House does not come into the picture at this stage. The provisions of the Judges (Inquiry) Act, 1968 are not uncon- stitutional as abridging the powers and privileges of the House. The Judges (Inquiry) Act, 1968 is constitutional and is intra vires. [66 G-H]
9.1 The Judges (Inquiry) Act, 1968 is law enacted under Article 124(5) which provides against doctrine of lapse.
9.2 The effect of sections 3(1) and (2) and 6(2) of the Judges (Inquiry) Act, 1968, is that the motion should be kept pending till the committee submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration. Only one motion is envisaged which will remain pending. No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported. [50 G]
9.3 Section 3 of the Act applies to both the Houses of Parliament. The words "shall keep the motion pending" cannot have two different meanings in the two different contexts.
It can only mean that the consideration of the motion shall be deferred till the report 14 of the Committee implying that till the happening of that event the motion will not lapse. Therefore, such a motion does not lapse with the dissolution of the House of Parlia- ment. [51 D]
10. At the stage of the provisions when the Speaker admits the motion under section 3 of the Judges (Inquiry) Act, a Judge is not, as a matter of right, entitled to a notice. The scheme of the statute and the rules made there- under by necessary implication, exclude such a right. But that may not prevent the Speaker, if the facts and circum- stances placed before him indicate that hearing the Judge himself might not be inappropriate, might do so. But a decision to admit the motion and constitute a Committee for investigation without affording such an opportunity does not, by itself and for that reason alone, vitiate the deci- sion. [68 E-G]
11.1 It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct, and any conduct which tends to impair public confi- dence in the efficiency, integrity and impartiality of the court is indeed forbidden. But, the proposition that, apart from the constitutional machinery for removal of a Judge, the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks. The court would then indeed be acting as a tribunal for the removal of a Judge and is productive of more problems than it can hope to solve. [69 C, 70 H] Sampath Kumar & Ors. v. Union of India & Ors, [1985] 4 S.C.C. 458, referred to.
Corpus Juris Secundum, (VoI.48A), referred to.
11.2 The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted. The entire Constitutional Scheme, including the provisions relating to the process of removal of a Judge are to be taken into account for the purpose of considering this aspect. Since the Constitutional Scheme is that the Judge's conduct cannot be discussed even in the Parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is 'proved' in accordance with the law enacted for this purpose, it is difficult to accept that any such discussion on the conduct of the Judge or any evaluation or inference as to its 15 merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constitut- ed under the statute for this purpose. Therefore, it is difficult to accept that there can be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in clauses (4) and (5) of Article 124 read with Article 121. No authority can do what the Constitution by necessary implication forbids. [71 B-F]
11.3 The question of propriety is, however, different from that of legality. Whether the Judge should continue to function during the intervening period is to be covered by the sense of propriety of the concerned Judge himself and the judicial tradition symbolised by the views of the Chief Justice of India. It should be expected that the Judge would be guided in such a situation by the advice of the Chief Justice of India, as a matter of convention, unless he himself decided as an act of propriety to abstain from discharging judicial functions during the interregnum. It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension.[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 concerned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the Chief Justice of India be of the view that in the interests of the institution of judiciary it is desira- ble for the Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the Judge accordingly, and the concerned Judge would ordinarily abide by the advice of the Chief Justice of India. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive t? the Chief Justice of India for this purpose.
[71 G, 72 A, C-E]
12. Even on the allegations made in the petition and plea of malafides which require to be established on strong grounds no such case is made out. A case of malafides cannot be made out merely on the ground of political affiliation of the Speaker either. That may not be a sufficient ground in the present context. At nil events, as the only statutory authority to deal with the matter, doctrine of statutory exceptions or necessity might be invoked. [74 B-C]
13. The law as to standing to sue in public interest actions has 16 undergone a vast change over the years and liberal standards for determining locus standi are now recognised. The present matter is of such nature and the constitutional issues of such nature and importance that it cannot be said that members of the Bar, and particularly, the Supreme Court Bar Association have no locus standi in the matter. An elaborate re-survey of the principles and precedents over again is unnecessary. Suffice it to say that from any point view, the petitioners satisfy the legal requirements of the standing to sue. [74 E-F] S.P. Gupta & Ors. etc. etc. v. Union of India & Ors.
etc. etc., [1982] 2 SCR 365, relied on.
14. Certain submissions advanced on the prayer seeking to re.strain the judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the Judge is entitled.
While the members of the bar may claim to act in public interest, they have, at the same time, a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpi- tude, the Judge does not suffer irreparably in the very process. The approach should not incur the criticism that it was calculated to expose an able and courteous Judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so. The level of the debate both in and outside the Court should have been more decorous and dignified. Propriety required that even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed.
The constitutional protection to Judges is not for their personal benefit; but is one of the means of protecting the judiciary and its independence and is, therefore, in the larger public interest. Recourse to constitutional methods must be adhered to if the system were to survive. [74 G, 75 A-C]
15.1 The interpretation of the law declared by this Court that a motion under section 3(2) of the Judges (In- quiry) Act, 1968, does not lapse upon the dissolution of the House is a binding declaration. If the law is that the motion does not lapse, there can be no occasion for the House to say so at any time and it is erroneous to assume that the Houses of Parliament would act in violation of the law, since the interpretation of the law is within the exclusive power of the courts. [76 E] 17
25.2 If the House is not required to' consider this question since the parliamentary process can commence only after a finding of guilt being proved, the further question of a futile writ also does not arise. The point that the House can decide even after a finding of guilt that it would not proceed to vote for removal of the Judge is not germane to the issue since that is permissible in the Constitutional Scheme itself under Article 124(4), irrespective of the fact whether Article 124(5) is a mere enabling provision or a constitutional limitation on the exercise of power under Article 124 (4). [60 B-C]
15.3 The Union Government has sought to interpret the legal position for purpose of guiding its own response to the situation and to regulate its actions on the Speaker's decision. That understanding of the law is unsound. [76 G]
15.4 No specific writ of direction need issue to any authority. Having regard to the nature of the subject matter and the purpose it is ultimately intended to serve, all that is necessary is to declare the legal and correct constitu- tional position and leave the different organs of the State to consider matters falling within the orbit of their re- spective jurisdiction and powers. [76 H, 77 A]
15.5 In the circumstances, the question of Court de- clining to exercise its jurisdiction on the ground that the Judgment rendered and Writ issued by it would become infruc- tuous does not arise. [31 A-C, 77 A] Per Sharma, J. (dissenting);
1.1 On a close examination of the Constitution, it is clear that a special pattern has been adopted with respect to the removal of the members of the three organs of the State. The Executive, the Legislature and the Judiciary--at the highest level, and this plan having been consciously included in the Constitution, has to be kept in mind in construing its provisions. The approach should be that when a question of removal of a member of any of the three wings at the highest level-i.e. the President; the Members of the Parliament and the State Legislatures; and the Judges of the Supreme Court and the High Courts-arises, it is left to an organ other than where the problem has arisen, to be decid- ed. Consistent with this pattern, Clause (4) of Article 124 in emphatic terms declares that a Judge of the Supreme Court or the High Court shall not be removed from his office except on a special majority of the Members of each House of Parliament. Both the Executive and the Judiciary 18 are thus excluded in this process. The scheme cannot be construed as lack of trust in the three organs of the State.
There are other relevant considerations to be taken into account while framing and adopting a written Constitution, which include the assurance to the people that the possibil- ity of a subjective approach clouding the decision on an issue as sensitive as the one under consideration, has been as far eliminated as found practicable in the situation. And where this is not possible at all, it cannot be helped, and has to be reconciled by application of the doctrine of necessity, which is not attracted in the instant case. [81 F-H, 82 D-E,F-G] A11 Party Hill Leaders Conference v. M.A. Sangma, [1978] 1 SCR 393 at 411, referred to.
The Federalist: Hamilton, referred to.
1.2 There cannot be two opinions on the necessity of an independent and fearless judiciary in a democratic country like ours, but it does not lead to the further conclusion that the independence of judiciary will be under a threat, unless the matter of removal of Judges, even at the highest level, is not subjected to the ultimate control of Courts.
Great care was taken by the framers of the Constitution to this aspect and the matter was examined from every possible angle, before adopting the scheme as laid down. So far as the district courts and subordinate courts are concerned, the control has been vested in the High Court, but when it came to the High Court and Supreme Court Judges, it was considered adequate for the maintenance of their independ- ence to adopt and enact the Constitution as it is found now.
There is no reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and there is no ground for suspicion that the Members of Parliament or their representatives, the Speaker and the Chairman, shall not be acting in the true spirit of the Constitutional provisions. The mandate of the Constitution is binding on all. [100 B-E]
2.1 The exercise of power under clause (4) was not made conditional on the enactment of a law under clause (5), and the reason for inserting clause (5) in Article 124 was merely for elaborating the provisions. Clause (4) does not state that the misbehaviour or the incapacity of the Judge will have to be proved only in accordance with a law to be passed by the Parliament under clause (5) Clause (4) would continue to serve the purpose as it does now, without any 19 amendment if clause (5) were to be removed from the Consti- tution today. There is no indication of any limitation on the power of the Parliament to decide the manner in which it will obtain a finding on misbehaviour or incapacity for further action to be taken by it. Clause (5) merely enables the parliament to enact a law for this purpose, if it so chooses. [88 E, 88 A, 89 A]
2.2 The word 'may' has been sometimes understood in the imperative sense as 'shall', but ordinarily it indicates a choice of action and not a command. In the present context, there is no reason to assume that it has been used in its extraordinary meaning. [88 F]
3. The object of Article 121 is to prevent any discus- sion in Parliament with respect to the conduct of a Judge of the Superior Courts, except when it cannot be avoided. The Article, accordingly, prohibits such a discussion except upon a motion for presenting an address to the President for removal of a Judge. [89 B]
4.1 The expression "motion" has not been defined in the Judges (Inquiry) Act, 1968. The Lok Sabha Rules framed under Article 118 of the Constitution deal with "motions". There are separate rules of procedures for conduct of business adopted by the Rajya Sabha. Section 3(1) of the Act states that if a notice of "motion" is given for presenting an address to the President for the removal of a Judge, the Speaker or the Chairman, as the case may be, after consult- ing such persons as he deems fit, as also such relevant materials which may be available to him either admit the "motion" or refuse to admit the same. The manner in which this section refers to "motion" in the Act for the first time without a definition or introduction clearly indicates that it is referring to that "motion" which is ordinarily understood in the context of the two Houses of Parliament attracting their respective rules. Section 3 does not speci- fy as to how and to whom the notice of "motion" is to be addressed or handed over and it is not quite clear as to how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account. Therefore, the provi- sions of the Act have to be read alongwith some of the Lok Sabha Rules. Rules 185, 186 and 137 which are relevant for the purpose should be treated to be supplementary to the Act. [90 D-G, 91 B]
4.2 Sub-section (2) of Section 3, which is of vital importance in the present context, says that if the "motion" referred to in subsection (1) is admitted, the Speaker "shall keep the motion pending" 20 and constitute a Committee for investigation into the alle- gations. 191 C]
4.3 The situs where the "motion" is pending is almost conclusive on the issue whether the House is seized of it or not. The Act does not leave any room for doubt that the "motion" remains pending in the House and not outside it.
This is corroborated by the language used in proviso to Section 3(2) which deals with cases where notices of "mo- tion" under Section 3(1) are given on the same date in both Houses of Parliament. It says that in such a situation, no Committee shall be constituted unless the "motion" has been "admitted in both Houses", and where such "motion" has been admitted "in both Houses", the Committee shall be constitut- ed jointly by the Speaker and the Chairman. It is not an inadvertent reference in the Act of the "motion" being pending in the House: the Act and the Rules made thereunder envisage and deal with a "motion" which is admitted in the House and remains pending there to be taken up again when the date is fixed by the Speaker on receipt of the report from the Committee. The language throughout the Act has been consistently used on this premise and is not capable of being ignored or explained away. [91 D, G-H, 92 A, C-D]
4.4 The scope of the Act and the Rules is limited to the investigation in pursuance of a "motion" admitted by the Speaker. At the conclusion of the investigation the Commit- tee has to send the report to the Speaker (or the Chairman as the case may be) along with a copy of the original Mo- tion. If the finding goes against the Judge, the Motion, the same original Motion, together with the report would be taken up for consideration by the House where the Motion is pending, and the address and the Motion would be put to vote together in each House of Parliament. What the Act and the Rules contemplate is the original Motion to be taken up for consideration by the House, and if this Motion is held to have exhausted itself on admission by the Speaker nothing remains on which the Act would operate. [92 E, G]
4.5 Thus, the concept of the original Motion being pending in the House, to be taken up for debate and vote on the receipt of the report of the Committee, is the life and soul of the Act, and if that Motion disappears nothing remains behind to attract the Act. This idea runs through the entire Act and the Rules, and cannot be allowed to be replaced by a substitute. The existence of a Motion pending in the House is a necessary condition for the application of 21 the Act. Bereft of the same, the Act does not survive. It is, therefore, not permissible to read the Act so as to mean that the House is not seised of the Motion and that it does not have anything to do with the inquiry pending before the Committee, until the report is received. If clauses (4) and (5) of Article 124 are construed otherwise the Act will have to be struck down as ultra vires, or in any event, inopera- tive and infructuous and, on this ground alone, the Writ Petitions are liable to be dismissed. [92 H, 93 A-B]
5.1 The mandate of the Constitution against discussion on the conduct of a Judge in the House is for everybody to respect, and it is the bounden duty of the Speaker to en- force it. He has to ensure that Article 121 is obeyed in terms and spirit. The pendency of the motion in the House cannot be a ground to violate Article 121, and the apprehen- sion that if the motion is held to be pending in the House, on its admission, the object of Article 121 would be defeat- ed is misconceived. [93 C, F]
5.2 The wider proposition that the House was seized of the matter so effectively as to entitle every member to demand a discussion in the House at any stage will not only violate Article 121, but also offend the provisions of the 1968 Act. It is not correct to assume that if the right of the individual member to insist on immediate discussion is denied, the consequence will be to deprive the Parliament of the control of the motion. The Speaker may consult other persons before admitting the motion, and while so doing he may consult the members of the House also, but without permitting a discussion in the House. The consultation, which the Act permits, is private in nature, not amounting to a public discussion, while the object of Article 121 is to prevent a public debate. It may also be open to the Speaker to consult the House on a legal issue which can be answered without reference to the conduct of Judge in ques- tion, as for example, the issue involved in the instant case, whether on account of dissolution of the old House the Motion has lapsed and the Committee of Inquiry is defunct.
What is prohibited is not every matter relating to the removal of a Judge; the bar is confined to a discussion with respect to the conduct of a Judge in the discharge of his duties. [95 E-H, 96A]
5.3 There is no justification for interpreting such portion of the 1968 Act, which directed or declared the initial motion admitted by the Speaker to remain pending in the House, as creating legal fiction limited for the purpose of ensuring that the bar under Article 121 was not lifted prematurely. [96 B] 22 East End Dwellings Co. Ltd. And Finsbury Borough Coun- cil: 1952 A.C. 109, referred to.
5.4 A close reading of the entire Act indicates that the language therein was consciously chosen to make the House seized of the matter, and consequently it became necessary to include the provision directing the motion to remain pending for the purpose of preventing a premature discus- sion. The Act has, thus, very successfully respected both Articles 124 and 121 in their true spirit, by neatly harmo- nising them. [97 B]
5.5 Parliament is in control of the matter from the very beginning till the end. By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter, the House is brought in con- trol of the proceeding through its representative, the Speaker or the Chairman. The ground of proved misbehaviour or incapacity is necessary only for putting the matter to vote in the House under clause (4), and is not a condition precedent for initiating a proceeding and taking further steps in this regard. ]97 G-H, 98 A]
5.6 It is a well established practice for a larger body to entrust investigations to a smaller body for obvious practical reasons, and such an exercise cannot be characte- rised as indulging in abnegation of authority. It could have asked a Parliamentary Committee to enquire into the allega- tions or employed any other machinery for the purpose. [98 D]
5.7 So long as the statute enables the House to maintain its control either directly or through the Speaker, the entrustment of the investigation does not amount to abdica- tion of power. It is a case where the Parliament has taken a decision to respect the verdict of the Committee in favour of the Judge, consistently with clause (4) and no fault can be found. 199 B] State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Anr., [1978] 2 SCC 102, referred to.
5.8 The House, which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted. If it is held that the Committee is an independent statutory body not subject to the control of the House 23 directly or through the Speaker, then the Act may be ren- dered unworkable. Besides, this would lower the dignity of the Chief Justice of India by providing a machinery consist- ing of 5 or 4 Judges to sit in ,appeal over him. If the Committee is held to be functioning under the supervision and control of the Parliament, with a view to aid it for the purpose of a proceeding pending in the House, it will be the Parliament which will be in control of the proceeding and not the Committee. [99 E-F, H]
6.1 When even after a verdict against the Judge is returned by the Committee, the Parliament, or for that matter any of the two Houses can refuse to vote in favour of the Motion for removal of a Judge, and the Court would not have any jurisdiction to interfere in the matter, it is not conceivable, that at the intermediate stage of investigation the Court has got the power to intervene. This is because, if the control of the House continues on the proceeding throughout, which can be exercised through the Speaker, it cannot be presumed that the Court has a parallel jurisdic- tion, which may result in issuance of contradictory direc- tions. Besides, the Court cannot be expected to pass orders in the nature of step in aid, where the final result is beyond its jurisdiction. Any order passed or direction issued by this Court may result in merely an exercise in futility, and may cause a situation, embarrassing both for the highest judicial and legislative authorities of the country. The Constitution cannot be attributed with such an intention. [101 A-C]
6.2 In the circumstances the courts, including this Court, do not have any jurisdiction to pass any order in relation to a proceeding for removal of a Judge of the superior courts. [101 C]
7. No opinion is expressed on the controversy whether the Motion lapsed or not on the dissolution of the earlier House, as the issue is for the Lok Sabha to decide. [102 E]
8. This Court cannot pass any order whether permanent or temporary on the prayer that the respondent No. 3, the concerned Judge, should not be allowed to exercise his judicial powers. [102 F]
9.1 Although the powers of State have been distributed by the Constitution amongst the three limbs, i.e. the Legis- lature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas.
[80F-G] 24 Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 347 at p. 415, referred to.
9.2 Generally, questions involving adjudication of disputes are amenable to the jurisdiction of the courts, but there are exceptions, not only those covered by specific provisions of the Constitution in express terms, but others enjoying the immunity by necessary implication arising from established jurisprudential principles involved in the Constitutional scheme. [81 C]
10. It is permissible to take into consideration the entire historical background of the provisions of the Con- stitution and the Act as aid to interpretation. [84 C] Bengal Immunity Company v. The State of Bihar, [1955] 2 SCR 603 at 632 & 633; B. Prabhakar Rao v. State of Andhra Pradesh, [1985] Suppl 2 SCR 573, referred to.
Heydon's case: 76 E.R. 637; Eastman Photographic Materi- al Company v. Comptroller General of Patents, LR. [1898] A.C. 571, referred to.
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 491 of 1991. (Under Article 32 of the Constitution of India)
WITH TRANSFER PETITION (CIVIL) No, 278 of 1991. (Under Article 139-A(i) of the Constitution of India)
WITH WRIT PETITION (CIVIL) Nos. 541,542 & 560/91 G. Ramaswamy, Attorney General, Altar Ahmad, Addl. Solicitor General, Shanti Bhushan, Ram Jethmalani, P.P. Rao, Kapil Sibal, P.R.Krishnan, Ms. Indira Jaisingh, Ashok Desai, Hardev Singh, P.S. Poti, Danial Latifi, Rajinder Sachhar, M.K. Ramamurthy, R.K. Garg, S.K. Dholakia, Santosh Hegde, V.N. Ganpule, Tapas Ray, N.B. Shetye, Jayant Bhushan, Mohan Rao, Prashant Bhushan, Ms. Kamini Jaiswal, A.K. Srivastava, Manoj Wad, Ms. Rashmi Kathpalia, Ms. Nina Dikshit, E.M.S. Anam, Rajiv K. Garg, N.D. Garg, G.D. Sharma, Sudhir Walia, A.M. Khanwilkar, Mrs. Anil Katiyar, Ms. A. Subhashini, R.S. Suri, M. Veerappa, K.R. Nambiar, Harish Uppal (appeared in person) and P.H. Parekh for the appearing parties.
The Judgment of the Court was delivered by B.C. 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 V.Ramaswami 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 P.B. Sawant, a sitting Judge of this Court, Mr. Justice P.D. Desai, Chief Justice of the High Court of Bombay, and Mr. Justice O. Chinappa Reddy, a distinguished jurist in terms of Section 3(2) of The Judges (Inquiry) Act, 1968.
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 11(b) (i) of Part D 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 Judges (Inquiry) Act 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 124(5) 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.
26
2. 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.
3. 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 Judges (inquiry) Act, 1968" 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.
4. 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. 541/1991 and WP No. 491/1991.
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 pet
