Justice P.D. Dinakaran Vs. Hon'ble Judges Inquiry Committee and others
J U D G M E N T
G.S. Singhvi, J.
1. Although, the prayers made in this petition filed under Article 32 of the Constitution are for quashing order dated 24.4.2011 passed by the Committee constituted by the Chairman of the Council of States (Rajya Sabha) under Section 3(2) of the Judges (Inquiry) Act, 1968 (for short, "the Act") and for grant of a declaration that the proceedings conducted by the Committee on 24.4.2011 are null and void, the tenor of the grounds on which these prayers are founded shows that the petitioner is also aggrieved by the inclusion of respondent No.3-Shri P.P. Rao, Senior Advocate, Supreme Court of India in the Committee under Section 3(2)(c) of the Act.
2. Fifty members of the Rajya Sabha submitted a notice of motion for presenting an address to the President of India for removal of the petitioner, who was then posted as Chief Justice of the Karnataka High Court, under Article 217 read with Article 124(4) of the Constitution of India. The notice enumerated the acts of misbehaviour allegedly committed by the petitioner and was accompanied by an explanatory note and documents in support of the allegations. After the motion was admitted, the Chairman of the Rajya Sabha (hereinafter referred to as, "the Chairman") constituted a Committee comprising Mr. Justice V.S. Sirpurkar, Judge, Supreme Court of India, Mr. Justice A.R. Dave, the then Chief Justice of Andhra Pradesh High Court and respondent No.3.
3. Immediately after issue of notification dated 15.1.2010 under Section 3(2) of the Act, the newspapers carried reports suggesting that there was an objection to the inclusion of respondent No.3 in the Committee on the ground that he had given legal opinion to the petitioner in December, 2009. On reading the newspaper reports, respondent No.3 sent letter dated 19.1.2010 to the Chairman with the request that he may be relieved from the Committee. Paragraph 2 of that letter reads as under: "Although, there is no conflict of duty and interest, as I did not render any professional service to him, there is a demand from certain quarters for my recusal which you might have noticed in today's Hindustan Times. I am sure you will appreciate that justice should not only be done but also seen to be done. Even though I have no official communication as yet about my nomination, it will not be proper for me to function as a member of the Committee in the fact of such objection. I request you to kindly relieve me forthwith and nominate another jurist in my place and oblige."
4. After due consideration, the Chairman declined to accept the request of respondent No.3 and asked him to continue as member of the Committee. Thereupon, respondent No.3 sent letter dated 21.1.2010 and agreed to accept the assignment. On that very day, Convenor of the Campaign for Judicial Accountability and Reform sent a letter to the Vice-President wherein a demand was made in the garb of making suggestion that Mr. Justice V.S. Sirpurkar should recuse from the Committee because he had association with the petitioner as a Judge of the Madras High Court from 1997 to 2003. Similar suggestion-cum-demand was made qua respondent No.3 by stating that the petitioner had consulted respondent No.3 and the latter had advised him to get a commission of inquiry appointed to go into the charges.
5. On being instructed by the Chairman, the Secretary General of the Rajya Sabha forwarded a copy of the aforesaid letter to respondent No.3. In 4his response dated 27.1.2010, respondent No.3 detailed the background in which the petitioner had met him on 6.12.2009 and what transpired between them. The relevant paragraphs of that letter read as under: "I would like to place on record as to why Chief Justice Dinakaran met me at my residence with prior appointment on Sunday, the 6th December, 2009 at 02:30 p.m. On Saturday, 28 Nov '09, there was a day-long National Seminar organized by
The Bar Association of India under the Presidentship of Shri F.S. Nariman to discuss the problems of the Judiciary, in which the Hon'ble Law Minister also participated briefly in the inaugural session. I am one of the Vice-Presidents. In the course of my speech, I demanded that the Collegium should not proceed further with the recommendation to bring Chief Justice P.D. Dinakaran to the Supreme Court and there should be a public inquiry in which Chief Justice Dinkaran should clear himself of the charges levelled against by senior members of the Bar and during the inquiry, he should step down from his office and remain on leave. Many eminent members of the Bar including two former Attorney Generals for India namely, Shri Soli J. Sorabjee and Shri Ashok Desai, a former President of International Bar Association namely Shri RKP Shankar Dass and a former President of Law Asia namely, Shri Anil Divan, who participated in the seminar expressed the same view.
Finally, on the request of the President of Bar Association of India, I drafted the Resolution which was touched up by him before it was passed unanimously by the members present. The speeches made at the seminar, including mine, were reported in the media. In the following week, Chief Justice Dinakaran visited Delhi, presumably to meet the Chief Justice of India, members of the Collegium and others. While in Delhi, he telephoned to me saying that he was surprised that I too believed that he was guilty of the charges levelled against him and he would like to meet me personally.
When the Chief Justice of a High Court seeks appointment, it would be improper for any member of the legal profession to refuse it. When he met me on December 06, 2009 I told him that when 5 serious allegations had been made against him by senior members of the Bar practicing at Chennai, Bangalore and Delhi, it was proper that there should be a public inquiry. When he said that he was totally innocent and he could convince me about it, I told him politely that he has to convince those who made the allegations on some basis and that will be possible only in a public inquiry. It was then I suggested that if he was innocent, he should himself invite an inquiry under the Commissions of Inquiry Act, 1952 and offer to proceed on leave during the Inquiry.
There was neither consultation on the merits of the charges nor any opinion sought or given. He did not seek my professional services for his case. The matter ended there. What I told him in private when he met me at my residence was nothing but what I had earlier demanded in public at the seminar. There is absolutely no question of conflict of interest and duty in such a case. When the Hon'ble Chairman of Rajya Sabha, after due consideration of my offer to quit, requested me to continue, I accepted the request most respectfully as it is a call to public duty from no less a person than the Vice-President of India, which I shall not shirk."
6. On 12.5.2010, the petitioner suo moto sent a letter to the Vice-President of India and Chairman, Rajya Sabha stating therein that through print and electronic media he had come to know about constitution of the Committee under Section 3(2) of the Act. The petitioner claimed that the allegations levelled against him were false and baseless. He expressed anguish on being prevented from performing his judicial work and prayed that the inquiry initiated against him may be completed expeditiously and his grievance be redressed at the earliest. For the sake of reference, letter dated 12.5.2010 is reproduced below: 6" 12th May, 2010
The Hon'ble Vice President of Indiaand Chairman, Rajya Sabha Parliament New Delhi Your Excellency, May I take this opportunity to present this supplication for kind consideration of Your Excellency.2. Even though I have learnt through print and electronic media that an impeachment motion has been moved against me under Article 217 read with 124(4) of the Constitution of India before the Rajya Sabha by 75 Hon'ble Members of Parliament, as on date, I have not received any official communication whatsoever in this regard till date.3. I have also learnt through print and electronic media that a Committee, as contemplated under Section 3(b) of The Judges (Inquiry) Act, 1968, has been constituted by Your Excellency consisting of Hon'ble Mr. Justice V.S. Sirpurkar, Judge, Supreme Court of India; Hon'ble Mr. Justice A.R. Dave, the then Chief Justice, Andhra Pradesh High Court and Mr. P.P. Rao,
Senior Advocate, Jurist, in January, 2010, but till date I have not officially heard anything in this connection to enable me to explain my case. Now that Mr. Justice A.R. Dave is elevated to the Supreme Court of India, the Committee requires to be reconstituted.4. In the meanwhile, the print and electronic media had given wild publicity about the allegations made against me, causing irreparable damage to me and to my family personally and to the constitutional position I am holding. All the allegations are made with an ulterior motive to stall my elevation to the Supreme Court, when the Hon'ble collegium of the Supreme Court recommended my name for elevating me to Supreme Court.
It appears that Hon'ble Rajya Sabha Members have been misled by the reports of the District Collector, Thiruvallur, State of Tamil Nadu dated 8th, 10th and 15th October, 2009 stating that myself and my wife have encroached 199.53 acres of lands at Kaverirajapuram, Tiruttani Taluk, Thiruvallur District, State of Tamil Nadu. As the said reports of the District Collector were specifically denied by me as baseless, the matter was referred to a Committee under the Chairmanship of Major General (Dr.) Siva Kumar, Survey of India, Department of Science and Technology, who, ultimately on 15th February, 2010, produced a survey map to my wife, Dr. K.M. Vinodhini Dinakaran, holding that there is no encroachment of any government/public lands either by me or by my wife.
All the allegations leveled against me are false and baseless. Myself and my family members are humiliated and put into great hardship by the vested interest persons; and I have been prevented to discharge my obligations under the constitution to perform the judicial work, pending enquiry by the Committee. But, the enquiry is yet to commence. Your Excellency may kindly appreciate that the enquiry initiated against me cannot be an endless wait. Having patiently waited all these days for an opportunity to explain my case that the allegations are baseless and there is no material and merit whatsoever, I earnestly request Your Excellency to do the needful, so that, my genuine grievance may kindly be redressed at the earliest and justice be rendered to me expeditiously. With kind regards, Yours sincerely, Sd/- [P.D. Dinakaran]" (emphasis supplied)
7. In the meanwhile, Mr. Justice A.R. Dave, Chief Justice of the Andhra Pradesh High Court, was transferred to the Bombay High Court and was then elevated as Judge of this Court and in his place Mr. Justice J.S. Khehar, Chief Justice of the Uttarakhand High Court was included in the Committee. In September, 2010, Mr. Justice Aftab Alam, Judge, Supreme Court of India was appointed as Presiding Officer because Mr. Justice V.S. Sirpurkar recused from the Committee.
8. After about two months of the aforesaid development, the petitioner's wife, Dr. (Mrs.) K.M. Vinodhini Dinakaran, sent letter dated 27.11.2010 to the Presiding Officer and the members of the Committee with the request that investigation into the allegations levelled against her husband should be got done through unbiased officials. This request was made in the context of some inquiry having been made by Mr. Govindswamy, Village Administrative Officer, Kaverirajapuram Village, Tiruttani Taluk and Mr. Veeraraghavan, former Tahasildar Tiruttani. She claimed that both the officials were in collusion with the then District Collector, Mr. Palani Kumar IAS, who was inimical to the petitioner. She requested that the investigating agency should not engage Mr. Govindswamy and Mr. Veeraraghavan because they had already acted with mala fides and bias against her family.
9. After preliminary scrutiny of the material placed before it, which included documents summoned from Government departments and agencies/instrumentalities of the State, the Committee issued notice dated 16.3.2011, which was served upon the petitioner on 23.3.2011, requiring him to appear on 9.4.2011 to answer the charges. The notice was accompanied by a statement of charges and lists of the documents and witnesses.
10. Upon receiving the notice, the petitioner submitted representation dated 8.4.2011 to the Vice-President of India and the Chairman, Rajya Sabha with the prayer that the order admitting notice of motion may be withdrawn, the order constituting the Inquiry Committee be rescinded and notice issued by the Committee may be annulled. In that representation, the petitioner, for the first time, raised an objection against the inclusion of respondent No.3 in the Committee by alleging that the latter had already expressed views in the matter and declared him guilty of certain charges.
The petitioner claimed that respondent No.3 had led a delegation of the advocates to meet the then Chief Justice of India and was a signatory to the representation made by the senior advocates against his elevation to the Supreme Court. The petitioner further claimed that he felt agitated by the attitude of respondent No.3 because earlier the said respondent had not only appreciated his work but even called upon him to communicate his appreciation and also sent congratulatory message on his name being cleared for elevation to the Supreme Court. The petitioner also stated that he along with his wife and one K. Venkatasubbaraju met respondent No.3 at his residence and, during the meeting, respondent No.3 admitted that he was misled by certain vested interest in signing the representation. Paragraphs 6, 7 and 8 of the letter written by the petitioner are reproduced below: "
Once I came to know that Shri P.P. Rao has led the delegation against me demanding that I should not be elevated, I was agitated by this attitude of Shri P.P. Rao. Earlier Shri P.P. Rao had always appreciated my work on the bench and even called on me to communicate the same. When I was a judge of the High Court of Judicature at Madras, Shri P.P. Rao called on me and appreciated my work as Judge. He also paid encomiums for my bold and independent approach. Soon after my name was considered and cleared for elevation to the Supreme Court of India Shri P.P. Rao congratulated me in writing.
Therefore, I I was aghast when I learnt about his opposition to my elevation. Shri K. Venkatasubbaraju, an Advocate who is a common friend of both of us spoke to Shri P.P. Rao and arranged for a meeting between us. Accordingly, I along with Shri K. Venkatasubbaraju accompanied by my wife called on Shri P.P. Rao at his residence and confronted him with the newspaper reports. Shri P.P. Rao admitted that he was misled by certain vested interests in signing the petition against me he even went to the extent of saying that 11 he was forced to sign the petition as an office bearer of the Association. In the light of the said explanation I though it fit to leave the matter at that.
In the meanwhile I was shocked to see Shri P.P. Rao's name included in the Committee constituted under the Chairmanship of Hon'ble Mr. Justice V.S. Sirpurkar. Even before I could react to that the very same vested interests, who are instrumental in engineering false allegations against me, opposed the constitution of the said Committee. They took specific objection to the inclusion of Shri P.P. Rao in the Committee while objecting to the appointment of the Chairman. It was on such opposition that Hon'ble Mr. Justice V.S. Sirpurkar resigned as the Chairman of the Committee. Following suit, I expected, keeping in mind Shri P.P. Rao's standing and reputation, that Shri P.P. Rao would also quit the Committee.
In this background, it is clear that Shri P.P. Rao has already declared me guilty of certain charges on the basis of which he opposed my elevation to Apex Court tooth and nail. It is a travesty of justice that the Judges Inquiry Committee has been so constituted with the same Shri P.P. Rao as a sitting member of the said Committee. This is opposed to all principles of justice and rule of law. It is, in these circumstances, this petition is presented on the following amongst the other grounds." (emphasis supplied)
11. On the next day, i.e., 9.4.2011, the petitioner sent a letter to the Presiding Officer of the Committee enclosing a copy of the representation submitted to the Chairman and requested that decision on the same be awaited. On 20.4.2011, the petitioner made an application to the Committee and raised several objections against notice dated 16.3.2011 including the 12one that respondent No.3 was biased against him. After two days, respondent No.3 sent letter dated 22.4.2011 to the Presiding Officer of the Committee and reiterated all that he had said in letter dated 27.1.2010 but, at the same time, respondent No.3 specifically denied that he had pronounced upon the guilt of the petitioner.
He also denied that the petitioner had consulted him or that any opinion was sought and given. Respondent No.3 acknowledged that when news appeared about the petitioner's name having been cleared for elevation to the Supreme Court, he had congratulated him vide e-mail dated 30.8.2009, referred to letter dated 19.1.2010 addressed to the Chairman and indicated that it was his duty to recuse from the membership of the Committee once again. Respondent No.3 prepared a similar letter for being sent to the Chairman, but on being advised by the Presiding Officer of the Committee, he held back the same.
12. After considering the objections of the petitioner, the Committee (respondent No.3 did not take part in the proceedings) passed detailed order dated 24.4.2011, the relevant portions of which are extracted below: "According to the applicant, earlier when his name was recommended for appointment as a Judge of the Supreme Court, Mr. P.P. Rao had led a delegation of lawyers to the then Chief Justice of India to hand over a petition opposing his elevation to the Supreme Court. He was one of the signatories to the representation handed over to the then Chief Justice of India urging him not to elevate the applicant as a Judge of the Supreme Court.
He was one of the speakers in a seminar organized by the Bar Council of India urging the authorities against the elevation of the applicant as a Judge of the Supreme Court. Mr. Rao was one of the leading personalities spearheading the campaign against his elevation to the Supreme Court. On those allegations, the applicant states that he does not expect a just and fair inquiry with Mr. P.P. Rao, being a member of the Committee.Mr. P.P. Rao has the distinction that his presence on the Committee has been, at one time or the other, objected to by both sides and perhaps this alone, apart from anything, else is sufficient to confirm his impartiality.It may be recalled that at the very inception of the Committee, Shri Prashant Bhushan, on behalf of one of the groups that were agitating against the recommendation for Justice Dinakaran's appointment as a judge of the Supreme Court and were demanding an enquiry for his removal as a judge of the High Court addressed a letter to the Chairman, Rajya Sabha objecting to the inclusion of Mr. P.P. Rao on the Committee.
The objection was based on the ground that even before the notice of motion was presented in the Rajya Sabha, leading to the formation of the Committee, and while the demand to hold an enquiry against the judge was still gaining ground Mr. Justice P.D. Dinakaran had met and consulted Mr. Rao in the matter. On that occasion Mr. Rao had made an offer to quit the Committee but his offer was not accepted by the Chairman. As the Committee proceeded with its work, with Mr. Rao as one of its members, there was no complaint or objection from any quarter. All the misgivings were satisfied and the groups and organizations that might be called as the initial whistle-blowers appear to be quite comfortable with Mr. Rao on the Committee.Now the objection has come from the side of the Judge whose conduct is the subject of enquiry.The earlier objection was completely misconceived and without basis but it did not have any ulterior motive. Unfortunately the same can not be said about the present objection.
It is clearly an after thought and has an oblique motive. The applicant was aware that Mr. Rao is a member of the Committee from the day one. As early as on May 12, 2010, he had addressed a letter to the Chairman, Rajya Sabha urging him to have the proceedings before the Committee expedited. In the letter, he mentioned the names of each of the three members of the Committee, as it was in existence at that time, including Mr. P.P. Rao, Senior Advocate but there is not a whisper of protest against Mr. Rao's inclusion in the Committee. Paragraph 3 of the letter reads as follows:- "I have also learnt through print and electronic media that a Committee, as contemplated under Section 3(b) of [The] Judges (Inquiry) Act, 1968, has been constituted by Your Excellency consisting of Hon'ble Mr. Justice V.S. Sirpurkar, Judge, Supreme Count of India; Hon'ble Mr. Justice A.R. Dave, the then Chief Justice, Andhra Pradesh High Court and Mr. P.P. Rao, Senior Advocate, jurist, in January, 2010, but till date I have not officially heard anything in this connection to enable me to explain my case.
Now that Mr. Justice A.R. Dave is elevated to the Supreme Court of India, the Committee requires to be reconstituted."Mr. Justice P.D. Dinakaran was given reply by Shri K.D. Singh, Secretary to the Committee by his letter dated August 4, 2010. From the letter it was evident that following Justice Dave's elevation, the Committee was re-constituted and Justice J.S. Khehar, who at that time was Chief Justice of the Uttarakhand High Court was brought on the Committee in his place. The letter went on to say that the Committee consisting of Hon'ble Mr. Justice V.S. Sirpurkar, Judge, Supreme Court of India, Hon'ble Mr. Justice J.S. Khehar, Chief Justice of Uttarakhand High Court and Shri P.P. Rao, Senior Advocate, was examining the Notice of Motion. Mr. Justice Dinakaran did not get back raising any objection against Mr. Rao's presence on the Committee.
On November 27, 2010, Dr. Mrs. K.M. Vinodhini Dinakaram, wife of Mr. Justice P.D. Dinakaran sent a letter addressed to the three members of the Committee urging that in connection with the enquiry her aged relatives might not be harassed and further that the Committee should not rely upon the statements of certain persons, named in the letter, who were inimically disposed of towards them. This letter was sent separately to all the three members, including Mr. P.P. Rao. This letter too, does not even suggest any reservation about the inclusion of Mr. Rao in the Committee. The objection is raised for the first time only after a notice along with the charges and the list of witnesses and documents in support of the charges were served upon the Judge. The stage and the time at which the objection is raised make it clear that the object is to somehow scuttle the enquiry by causing delay in the Committee's proceedings." (emphasis supplied)
13. Shri Amarendra Sharan, learned senior counsel for the petitioner argued that inclusion of respondent No.3 in the Committee constituted by the Chairman has the effect of vitiating the proceedings held so far because the said respondent is biased against the petitioner. Shri Sharan emphasized that by virtue of his active participation in the seminar organized by the Bar Association of India on 28.11.2009, respondent No.3 had disqualified himself from being a member of the Committee and on being apprised of the relevant facts, the Chairman should have changed the Committee by accepting the recusal of respondent No.3.
Learned senior counsel argued that a fair, impartial and unbiased investigation into the allegations levelled 16against him is an integral part of fundamental right to life guaranteed to the petitioner under Articles 14 and 21 of the Constitution and he cannot be deprived of that right by invoking the doctrine of waiver. In support of his arguments, Shri Amarendra Sharan relied upon the judgments of this Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248, M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544, Ranjit Thakur v. Union of India (1987) 4 SCC 611, Triveniben v. State of Gujarat (1989) 1 SCC 678, R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2) (1999) 1 All ER 577 and In re: Medicaments and Related Classes of Goods (No.2) 2001 (1) WLR 700. Learned senior counsel extensively referred to the dissenting view expressed by K. Ramaswamy, J. in Krishna Swami v. Union of India and others (1992) 4 SCC 605 and argued that the propositions laid down by the learned Judge on the issues not decided by the majority should be treated as declaration of law by this Court for the purpose of Article 141 of the Constitution and the same is binding.
14. Shri U.U. Lalit, learned senior counsel appearing for respondent No.1 invited the Court's attention to letter dated 12.5.2010 written by the petitioner to the Vice-President and Chairman of the Rajya Sabha to show that even before receiving official communication, the petitioner had 17become aware of the fact that respondent No.3 was a member of the Committee constituted under Section 3(2) of the Act. Shri Lalit then argued that the Court should not entertain objection to the inclusion of respondent No.3 in the Committee on the ground that he is biased against the petitioner because the latter did not raise any objection in that regard till the receipt of notice dated 16.3.2011, despite the fact that he knew that respondent No.3 had participated in the seminar organized on 28.11.2009, gave a speech opposing his elevation to this Court and also drafted a resolution to that effect.
Learned senior counsel then submitted that after meeting respondent No.3 on 6.12.2009 at the latter's residence, the petitioner was fully satisfied that the said respondent had nothing against him. Learned senior counsel also pointed out that even in the letter written by the petitioner's wife there was no objection against respondent No.3 being a member of the Committee on the ground that he had pre-judged the guilt of her husband. Learned senior counsel submitted that after reading the representations made by the petitioner and his wife, no person of reasonable prudence can carry an impression that the Committee of which respondent No.3 is a member will not be able to objectively investigate into the charges framed against the petitioner.
Learned senior counsel relied upon the judgments of this Court in Manak Lal v. Dr.Prem Chand Singhvi AIR 1957 SC 425, Dr. G. Sarana v. University of Lucknow (1976) 3 SCC 585 and R.K. Anand v. 18Delhi High Court (2009) 8 SCC 106 and argued that by maintaining silence for over one year against the appointment of respondent No.3 as member of the Committee, the petitioner will be deemed to have waived his right to question the constitution of the Committee.
15. Shri Prashant Bhushan, learned counsel for the intervenor also referred to letter dated 12.5.2010 and submitted that the petitioner did not harbour any apprehension of bias of respondent No.3, whose participation in the seminar was known to him as early as in November 1999 and this was the reason he sought appointment from the said respondent and argued that belated objection raised by the petitioner against the constitution of the Committee should not be entertained.
16. We have thoughtfully considered the entire matter. Two questions which arise for consideration are whether by virtue of his active participation in the seminar organised by the Bar Association of India on 28.11.2009 and his opposition to the elevation of the petitioner to this Court are sufficient to disqualify respondent No.3 from being included in the Committee constituted under Section 3(2) of the Act and whether by his conduct the petitioner will be deemed to have waived his right to object to the appointment of respondent No.3 as a member of the Committee.
17. Since a good deal of arguments were advanced by the learned counsel on the scope of Articles 121 and 124 of the Constitution, it may be useful to notice these Articles. Article 121 declares 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 discharge of his duties except upon a motion presenting an address to the President for the removal of the Judge. Article 124(4) lays down that 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 the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. Article 124(5) lays down that Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). By virtue of Article 217(1)(b), the provision contained in Article 124(4) has been made applicable in the matter of removal of a Judge of the High Court.
18. 18. Articles 121 and 124 were interpreted by the Constitution Bench in Sub-Committee on Judicial Accountability vs. Union of India (1991) 4 20SCC 699. In that case, the Court considered four writ petitions filed in the backdrop of an Inquiry Committee constituted by the then Speaker of the Lok Sabha to inquire into the allegations made by 108 Members of the Ninth Lok Sabha who had prayed for removal of Mr.Justice V. Ramaswami of this Court. In two of the writ petitions filed by the organizations of advocates, prayer was made for issue of a mandamus to the Union of India to take immediate steps to enable the Inquiry Committee to discharge its functions under the Act and to restrain the learned Judge from performing judicial functions and from exercising judicial powers. In the third writ petition filed by an advocate, it was prayed that the learned Judge should not be restrained from discharging his judicial functions till motion for the presentation of address for his removal was disposed of by both the Houses of Parliament.
The fourth writ petition was also filed by an advocate for striking down the Act on the ground that the same was ultra vires the provisions of Articles 100, 105, 118, 121 and 124(5) of the Constitution. He had also sought a declaration that the motion presented by 108 Members of the Parliament for the removal of the Judge had lapsed with the dissolution of the Ninth Lok Sabha. Along with the four writ petitions, the Court also transferred and disposed of Writ Petition (C) No.1061 of 1991 which was pending before the Delhi High Court with prayer similar to those made in one of the four writ petitions. The majority judgment was delivered by B.C. Ray, J. on his behalf and on behalf of M.N. Venkatachaliah, J.S. Verma and S.C. Agrawal, JJ.
The learned Judge noticed the procedure prevalent in England as also the provisions contained in Canadian, Australian and United States Constitutions for removal of judges of Superior Courts, referred to the resolutions passed in 19th Biennial Conference of the International Bar Association held at New Delhi in October, 1982, the First World Conference on the Independence of Justice held at Montreal on 10.6.1983, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan in August-September, 1985, debate in the Constituent Assembly and observed: "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 the proceedings 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 incapacity on a more careful examination this is not the correct conclusion." The learned Judge then referred to the scheme of Articles 121 and 124 and observed: "Accordingly, the scheme 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; and the second part 22only 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 124(4) `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) 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.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 of removal is `the ground of misbehaviour' while in clause (4) of Article 124, it is, `the ground of proved misbehaviour or incapacity'. 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 23 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 Supreme Court, in the case of a Judge who is a higher constitutional functionary, the requirement of judicial determination of the ground is reinforced by the addition of the word `proved' in Article 124(4) and the requirement of law for this purpose under Article 124(5).
Indeed, the Act reflects the constitutional philosophy of both the judicial and political elements of the process of removal. The ultimate authority remains with the Parliament in the sense that even if the committee for investigation records a finding that the Judge is guilty of the charges it is yet open to the Parliament to decide not to present an address to the President for removal. But if the committee records a finding that the Judge is not guilty, then the political element in the process of removal has no further option. The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial independence."
19. 19. We may also notice Sections 3 to 6 of the Act which was enacted by Parliament under Article 124(5) of the Constitution. The same read as under: "3. Investigation into misbehaviour or incapacity of Judge by Committee.-
(1) 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; (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; (b) 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: Provided that where notices of a motion referred to in sub- section (1) are given on the same day in both Houses of Parliament, 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 constituted jointly by the Speaker and the Chairman:
Provided further that where notices of a motion as aforesaid are given in the Houses of Parliament on different dates, the notice which is given later shall stand rejected. (3) The Committee shall frame definite charges against the Judge on the basis of which the investigation is proposed to be held. (4) Such charges together with a statement of the grounds on which each such charge is based shall be communicated to the 25Judge and he shall be given a reasonable opportunity of presenting a written statement of defence within such time as may be specified in this behalf by the Committee.
(8) The Committee may, after considering the written statement of the Judge and the medical report, if any, amend the charges framed under sub-section (3) and in such case, the Judge shall be given a reasonable opportunity of presenting a fresh written statement of defence. (9) The Central Government may, if required by the Speaker or the Chairman, or both, as the case may be, appoint an advocate to conduct the case against the Judge. 4. Report of Committee.-(1) Subject to any rules that may be made in this behalf, the Committee shall have power to regulate its own procedure in making the investigation and shall give a reasonable opportunity to the Judge of cross-examining witness, adducing evidence and of being heard in his defence.
(2) At the conclusion of the investigation, the Committee shall submit its report to the Speaker or, as the case may be, to the Chairman, or where the Committee has been constituted jointly by the Speaker and the Chairman, to both of them, stating therein its findings on each of the charges separately with such observation on the whole case as it thinks fit. (3) The Speaker or the Chairman, or, where the Committee has been constituted jointly by the Speaker and the Chairman, both of them, shall cause the report submitted under sub-section (2) to be laid, as soon as may be, respectively before the House of the People and the Council of States.5. Powers of Committee.-
For the purpose of making any investigation under this Act, the Committee shall have the powers of a civil court, while trying a suit, under the Code of Civil Procedure , 1908, in respect of the following matters, namely:- 26 (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on oath; (d) issuing commissions for the examination of witnesses or documents; (e) such other matters as may be prescribed. 6. Consideration of report and procedure for presentation of an address for removal of Judge.-(1) If the report of the Committee contains a finding that the Judge is not guilty of any misbehaviour or does not suffer from any incapacity, then, no further steps shall be taken in either House of Parliament in relation to the report and the motion pending in the House or the Houses of Parliament shall not be proceeded with.
(2) If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion referred to in sub-section (1) of section 3 shall, together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending. (3) If the motion is adopted by each House of Parliament in accordance with the provision of clause (4) of article 124 or, as the case may be, in accordance with that clause read with article 218 of the Constitution, then, the misbehaviour or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted. "
20. An analysis of the above reproduced provisions shows that Section 3(1) of the Act provides for admission of motion by the Speaker or, as the case may be, the Chairman provided it is supported by 100 members of the House of the People or 50 members of the Council of States, as the case may be. The Speaker or, as the case may be, the Chairman, is entitled to consult such person, if any, as he thinks fit and to consider such material, if any, as may be available to him. If the motion is admitted, the Speaker or, as the case may be, the Chairman has to keep the motion pending and to constitute a Committee for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for [Section 3(2)].
The Committee constituted for the purpose of investigation shall consist of three members of whom - (a) one shall be chosen from among the Chief Justice and other Judges of the Supreme Court, (b) 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. In terms of Section 3(3), the Committee is required to frame definite charges against the Judge on the basis of which the investigation is proposed to be held. Section 3(4) requires that the charges together with a statement of the grounds on which each charge is based shall be communicated to the Judge and he shall be given a reasonable opportunity of presenting a written statement of defence. Section 3(8) deals with the situation where the Committee, after considering the written statement of the Judge, decides to amend the charges. In that event, the Judge is required to be given a reasonable opportunity of presenting a fresh written statement of defence.
In terms of Section 3(9), the Central Government is empowered to appoint an advocate to conduct a case against the Judge. Section 4(1) declares that subject to any rules made in that behalf, the Committee shall have power to regulate its own procedure in making the investigation. It also lays down that the Committee shall give a reasonable opportunity to the Judge to cross-examine the witnesses, adduce evidence and be heard in his defence. Section 4(2) provides for submission of report by the Committee to the Speaker or, as the case may be, to the Chairman. It also provides for submission of report both to the Speaker and the Chairman where the Committee has been jointly constituted by them.
In terms of Section 4(3), the report of the Committee is required to be placed before both the Houses of Parliament where the Committee has been constituted jointly by the Speaker and the Chairman. Section 5 lays down that for the purpose of making investigation under the Act, the Committee shall have powers of a Civil Court while trying a suit under the Code of Civil Procedure , 1908 in matters relating to summoning of witnesses etc. Section 6(1) lays down that if the Committee finds that the Judge is not guilty of any misbehaviour or does not suffer from any incapacity, no further steps should be taken in either
House of Parliament. Section 6(2) provides that if the report of the 29Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then the motion together with the report shall be taken up for consideration by the House in which the motion is pending. Section 6(3) provides that if the motion is adopted by each House of Parliament in accordance with the provisions of Article 124(4) or, as the case may be, in accordance with that clause read with Article 218, then the misbehaviour or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted.
21. In the backdrop of the relevant constitutional and statutory provisions, we shall now consider whether participation of respondent No.3 in the seminar organised by the Bar Association of India where he made speech opposing the petitioner's elevation to this Court and also drafted a resolution to that effect can lead to an inference that he was biased against the petitioner and he ought not to have been appointed as a member of the Committee in terms of Section 3(2)(c) of the Act.
22. The consideration of the aforesaid question needs to be prefaced by a brief reference to the nature and scope of the rule against bias and how the same has been applied by the Courts of common-law jurisdiction in India for invalidating judicial and administrative actions/orders. Natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are `basic values' which a man has cherished throughout the ages. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness. The underlying object of rules of natural justice is to ensure fundamental liberties and rights of subjects. They thus serve public interest. The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice.
23. The traditional English Law recognised the following two principles of natural justice: "(a) "Nemo debet esse judex in propria causa: No man shall be a judge in his own cause, or no man can act as both at the one and the same time - a party or a suitor and also as a judge, or the deciding authority must be impartial and 31 without bias; and (b) Audi alteram partem: Hear the other side, or both the sides must be heard, or no man should be condemned unheard, or that there must be fairness on the part of the deciding authority."However, over the years, the Courts through out the world have discovered new facets of the rules of natural justice and applied them to judicial, quasi-judicial and even administrative actions/decisions. At the same time, the Courts have repeatedly emphasized that the rules of natural justice are flexible and their application depends upon the facts of a given case and the statutory provisions, if any, applicable, nature of the right which may be affected and the consequences which may follow due to violation of the rules of natural justice.
24. 24. In Russel v. Duke of Norfolk (1949) 1 All ER 108, Tucker, L.J. observed: "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth." In Byrne v. Kinematograph Renters Society Limited (1958) 2 All ER 579, Lord Harman made the following observations: "What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more."
In Union of India v. P.K. Roy AIR 1968 SC 850, Ramaswami, J. observed: "The extent and application of the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case." In Suresh Koshy George v. University of Kerala AIR 1969 SC 198, K.S. Hegde, J. observed: "..........The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions." A.K. Kraipak v. Union of India (1969) 2 SCC 262 represents an important milestone in the field of administrative law. The question which came up for consideration by the Constitution Bench was whether Naqishbund who was a candidate seeking selection for appointment to the
All India Forest Service was disqualified from being a member of the selection board. One of the issues considered by the Court was whether the rules of natural justice were applicable to purely administrative action. After noticing some precedents on the subject, the Court held: "The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate.
The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi- judicial power."
The Court then considered whether the rules of natural justice were applicable to a case involving selection for appointment to a particular service. The learned Attorney General argued that the rules of natural justice were not applicable to the process of selection. The Constitution Bench referred to the judgments of the Queen's Bench in re H.K. (An infant) (1967) 2 QB 617 and of this Court in State of Orissa v. Dr.(Miss) Binapani Dei (1967) 2 SCR 625 and observed: "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made.
In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1 ) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2 ) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem) . Ver y soon thereafter a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice.
The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi- judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi- judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry.
As observed by this Court in Suresh Koshy George v. University of Kerala the rules of natural justice are not 35 embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case." (emphasis supplied) In Maneka Gandhi v. Union of India (supra), a larger Bench of seven Judges considered whether passport of the petitioner could be impounded without giving her notice and opportunity of hearing. Bhagwati, J, speaking for himself and for Untwalia and Fazal Ali, JJ, gave a new dimension to the rule of audi alteram partem and declared that an action taken in violation of that rule is arbitrary and violative of Articles 14 and 21 of the Constitution.
The learned Judge referred to Ridge v. Baldwin (1964) AC 40, State of Orissa v. Dr.(Miss) Binapani Dei (supra), re H.K.(An Infant) (supra) and A.K. Kraipak v. Union of India (supra) and observed: "The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law "lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation". Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a r
