SUB-COMMITIEE ON JUDICIAL ACCOUNTABILITY ETC. ETC. v. UNION OF INDIA AND ORS., ETC

Citation: [1991] SUPP. 2 S.C.R. 1

Court: Supreme Court of India

Bench: B.C. RAY, L.M. SHARMA, M.N. VENKATACHALIAH, J.S. VERMA, S.C. AGRAWAL

Case summary

: 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)lt all any Address is to be...

Judgment text

The Judgment of the Court was delivered by B. C. RAY, J. These writ petitions raise certain constitutional issues of quite some importance bearing on the construction of Articles 121 and 124 of the Constitution of India and of the "The Judges SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. ] 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 ofMr. Justice V. Rarnaswami of this Court. On 12th March, 1991, the motion was admitted by the then Speaker of the Lok Sabha who also proceeded to ·constitute 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 0.

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 ofthe Union Government to act in aid of the decision of the Speaker and to decijne 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 Constitution. It is said that without such a notification the two sitting Judges cannot take time off from their 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 ofthe Judges (Inquiry) Act have lapsed with the dissolution ofthe 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, impeachment etc.

of holders of high oonstitutional 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 Judge in either House ofthe Parti. U,n~iit;a@ at all justiciable before courts of law. It is also -~ged that even·. ifjhese 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)lt all any Address is to be presented rests exclusively with the Hotise

The foregoing serves to indicate broadly the complexities of the constitutional issues on which the Court is invited to pronounce and, as in all constitutional litigation, the views inevitably tend to reflect a range of policy options in constitutional adjudications and, in some measure, value ,_. ju_dgments. 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 constituted by an "All India Convention on Judicial Accountability" "to carry forward the task of implementing the resolu- . tions of the conventions". Wrjt 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 particular 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 \J. nder 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 functions 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 pr{ryer in the WP No. 541/1991 and WP No. 491/1991.

Petitioner, Sri Harish Uppal says that till the Inquiry Committee aetually finds the learned Judge guilty of the charges there should be no interdict ofhis judicial functions and that if such a fmding is recorded then thereafter till such time as the Motion for the presentation of the Address for the removal of the Judge disposed of by the Houses of Parliament-which petitioner says should not be delayed beyond 180 days -- the President may ask the Judge concerned to recuse from judical functions. · In Writ Petition No. 560/1991 brought by Shyam Ratan Khandelwal, practising Advocate, the constitutional validity of the Judges (Inquiry) Act, 1968 is challenged as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Constitution of India. It also seeks a declaration that the Motion presented by 108 Members of Parliament for the removal of the Judge has. lapsed with the dissolution of the 9th Lok Sabha.

It also seeks quashing of the decision of the Speaker admitting the Motion on the ground that an opportunity of being heard had been denied· to the Judge before the Speaker admitted the Motion and proceeded to constitute a Committee. On the question of the validity of The Judges (Inquiry) Act, SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. ) 27 1968 the petitioner contends that the law properly construed vests the 1 pow,'rs of admitting a Motion and of constituting a Committee under Section 3 in the Speaker in his capacity as Speaker of the House and -· Subject to the well known and well settled principles of law, procedure and conventions of the Houses of Parliament and the statute does not depart from these principles. On the contrary, the statute admits of construction which accords with the powers and privileges of the House and that the Motion even at that stage of admission would require to be debated by thJ House.

It is urged that if that be the construction, which the language iof the statute admits then there should be no vice of unconstitution. lity ill- it. But if the statute is construed to vest such power exclusively in \the Speaker, to the exclusion of the House, the statute, on such constitutibn would be unconstitutional as violative of Articles 100 (1), 105, 118 and 121 of the Constitution. 4. Transfer Petition No. 268/1991 is for the withdrawal by this Court to itself from the High Court of Delhi, the Writ Petition (Civil) No. 1061/1991 in the Delhi ! -ligh Court where reliefs similar to those prayed for by Sri K. handelwal in WP (Civil) No. 560/1991 are sought. The prayer / for transfer has not yet been granted; only the further proceedings in the High Court are stayed. But full-dress arguments in all these matters have been heard. It is appropriate that this writ petition should also be formally withdrawn and finally disposed of along with the present batch of cases.

All that is necessary is to make a formal order withdrawing WP (Civil) No. 1061/1991 from the Delhi High Court, which we hereby do. 5. Certain allegations of financial improprieties and irregularities were made against Justice V. Ramaswami, when he was the Chief Justice of the High Court of Punjab & Haryana. ·There were certain audit reports concerning certain items of purchases and other expenditure. The ther. Chief Justice of India, Justice Sabyasachi Mukharji, took note of the reports in this behalf and of representations submitted to him in this behalf and advised Justice Ramaswami to abstain from discharging judicial functions until those allegations were cleared. Thereafter, a Committee of three Judges was constituted by the then Chief Justice of India, to look into the matter and to advise him whether on the facts Justice Ramaswami might be embarrassed in discharging judicial functions as a Judge of this Court. The Committee tendered its advice to the Chief Justice.

It noted that Justice Ramaswami had declined to acknowledge the jurisdiction of any Committee to sit in judgment over his conduct. The Committee, accordingly, abstained from an inquiry on the charges but, on an evaluation of the matter before it, expressed the view that as long as the charges of timproper conduct involving moral turpitude were not established in the various enquiries then pending the operation of the constitutional warrant appointing him a Judge ofthe Court could not be interdicted. ,. Thereafter, in February, 1991, 108 Members of the Lok Sabha presented a Motion to the Speaker of the 9th Lok Sabha for Address to the President for the removal of the learned Judge under Article 124(4) of the Constitution read with the provisions of the Judges (Inquiry) Act, 1968. On 12. 3.

1991 the Speaker of the Lok Sabha in purported exercise of his powers :under Section 3 of the said Act, admitted the Motion and constituted a Committee as aforesaid to investigate the grounds on which the removal was prayed for. Soon after the decision of the Speaker to admit the Motion and constitute a Committee to investigate the charges was made, the term of / the Ninth Lok Sabha came to premature end upon its dissolution. The petiti~ners question the legality of the Speaker's order and assert that, at all events, the Motion had lapsed with the dissolution of the House. This contention is supporte. d by the Union of India. They say that the effect of dissolution of the Ninth lok Sabha is to "pass a sponge across the Parliamentary slate" and all pending motions lapse. The motion for removal, it is urged, is no exceptiQn. 6. We have heard Sri Shanti Bhushan, Sri Ram Jethmalani, Sri P. P. Rao, Sri R. K. Garg and Ms.

Indira Jaising - learned senior counsel in support of the prayers in writ petitions Nos. 491 and 541of1991 filed. by the Sub-Committee on Judicial Accountability and the Supreme Court Bar. Association respectiyely; . Sri G. Ramaswamy, learned Attorney General for the Union of India; Sri Kapil Sibal for the petitioners in writ petition No. 560191 and transfer petition No. 278/91. Sri Harish Uppal, petitionerin-person in writ petition No. 542/91 has filed his written submissions. The arguments of fie case covered a wide constitutional scheme relating to the removal of members of the superior judiciary in India and to the problems of justiciability of disputes arising therefrom. We shall . refer to the arguments when we assess the merits of these contentions. . ·~ 7.

The contentions urged at the hearing in support of the petition~·• which seek enforcement of Speaker's decision as well as those urged in support of the petitions which say that the Motion has lapsed can be summaried thus: Sl{B-COMMITIEE ON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. ) 29 / Contention A: The motion for removal of the Judge moved by I08 Members of Parliament as well as the purported decision of the Speal{er to admit that motion and to constitute a committee to investigate into the grounds on which removal is sought have lapsed upon the dissolution of the 9th Lok Sabha. The general rule is that no House of Parliament can seek to bind its successor. All pending business at the time of dissolution of House lapses. A motion for removal of a judge is just another motion and perishes with the expiry of the term or the earlier dissolution of the House.

The question whether the motion for the removal of the Judge has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive judge. No aspect of the matter is justiciable before Court. Contention B: . D . / The constitutional process of removal of a Judge, both in its substantive and procedural aspects, is a political process within the exclusive domain of the Houses of Parliament. The conduct of the Speaker in regulating the procedure and business of the House shall not be subject to the jurisdiction of any Court. The Speaker of the Lok Sabha in the exercise of his powers under the Judges (Inquiry) Act, 1968, acts in an area outside the courts' jurisdiction. There is nothing in the Judges (Inquiry) Act, 1968 which detracts from this doctrine of lapse. On the contrary, the provisions of the 'Act' are consistent with this Constitutional position.

Contention C: Article 124(5) pursuant to which the Judges (Inquiry) Act, 1968, is a mere enabling provision. Prior 'proof of misconduct is not a condition precedent before the bar under Article 121 against the discussion of the conduct of the Judge is lifted. Contention D: The action of the Speaker in admitting the notice of motion without reference to the House and constituting a committee for investigation without the support of the decision of the House is ultra vires Articles 100(1), 105, 121 and the rules made under Article 118 of the Constitution. The provisions of the Judges (Inquiry) Act, 1968 can be read consistently with the Constitutional Scheme under the aforesaid Articles. But if the provisions of the Act are so construed as to enable the Speaker to exercise and perform those powers and functions without reference to and independently of the House, then the provisions of the Act would be unconstitu-' tional.

Contention E: The decision of the Speaker to admit the motion and to constitute a committee for investigation is void for failure to comply with the rules of natural justice as no opportunity, admittedly, was afforded to the Judge of being heard before the decision was taken. Contention F: The process of removal ty means of-a motion for address to the President is a political remedy. But the fundamental right to move the Supreme Court for enforcement of fundamental rights take within its sweep the right to access to a court comprising of Judges of sterlillg and unsullied reputation and integrity which is enforceable. This judicial remedy is independent of the cons~itutional remedy and that the court has jurisdiction to decide as to its own proper constitution. In exercise of this jurisdiction it should examine the grounds of the alleged misbehaviour and restrain the Judge from judicial functioning.

Contention G: 1\h,e Speaker's decision is vitiated by ma/a fides and oblique and collateral motives. Contention H: The Supreme Court Bar Association and the Sub-Commi'ttee on JudiciafAccountability - the petitioners in Writ Petition No. 491 of 1991 and Writ Petition No. 541 of 1991, respectively, do not have the requisite standing to sue and the Writ petitions are, accordingly, not maintainable at their instance. SUB-COMMITIEEON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J.

] 31 Contention I: - At all events, even if the Speaker is held to be a statutory authority acting under the Statute and not as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the Court, any judgment rendered and writ issued by this Court have the prospect of being infructuous in view of the undisputed constitutional position that, in the ultimate analysis, the decision to adopt or turn down the motion is exclusively within the power of the House and the Court would have no jurisdiction over that area. The Court would, therefore, decline to exercise its jurisdiction on . grounds ofinfructuousness. 8. Before we discuss the merits of the arguments it is necessary to take a conspectus of the constitutional provisions concerning the judiciary and its independence.

In interpreting the constitutional provisions in this area 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 Constitution which permeates the whole of the Constitutional fabric and is an integral part of the constitutional structure. Independence of the judiciary is an essential attribute of Rule of law. Articles 124(2) and 217(1) require, in the matter of appointments of Judges, consultation with the Chief Justices. These provisions also ensure fixity of tenure of office of the Judge. The Constitution protects the salaries of Judges. Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.

Articles 124(4) and 124(5) afford protection against premature determination of the tenure. Article 124(4) says "a Judge of the Supreme Court shall not be removed from his office exce~t" etc. :nie gr~unds ~or removal are ~gain limited to . proved misbe~avio~ and mcapac1ty. It ts upon a purposive and harmomous construction and,\ exposition of these provisions that the issues raised in these petitions are to be resolved. 9. In construing the Constitutional provisions the law and procedure for removal of Judges in other countries afford a background and a comparative view. The solution must, of course, be found within our own Constitutional Scheme. But a comparative idea affords a proper perspective for the understanding and interpretation of the Constitutional Scheme. I 10. In England a Judge of the superior courts can be removed only o~ presentation of an address by both the Houses of,Parliament to the Crown.

Proceedings may be initiated by a petitioll to either House of Parliament for an address to the Crown or by a resolution for an address to the Crown to appoint a committee of inquiry into the conduct of the person designated, though preferably they should be commenced in the House of Commons. Sometimes [as in Barringtons Case (1830)j, a Commission ofInquiry is appointed and the matter is considered. in the light of the report of the said Commission. The motion for removal is considered by the entire House. In case any enquiry is to be conducted into the allegations, it is either referred to a Select Committee of the House or to the Committee of the whole House. Opportunity is given to the Judge whose conduct is impugned to make defence on public inquiry. The report of the Committee and its recommendation are placed before the House where the matter is. debated. (See : Halsbury's Laws of England, 4th Ed. Vol. p. ll08). · 11.

This process has been subjected to following criticism - (i) legislative removal is coloured by political partisanship inasmuch as the initiation of the process as well as the ultimate result may be dictated by political considerations and process of fact-finding and deliberations also suffer from party spirit. (ii) the government has considerable control not only on the ultiniate result of the proceedings but also on parliamentary time which enables them to prevent motions for an address from being adopted if it suits them. (iii) the legislative procedure is not adequate for adjudicative factfinding; and (iv) since Parliament is the master of its own procedure, the procedures and rules of evidence appropriate to judicial proceedings which would seem to be required in a case of judicial removal are unlikely to be allowed in Parliament. (See: Shetreet - Judges on Trial (1976) p. 405-407) ! 2.

The Justice Sub-Committee on the Judiciary considered the question whether the existing process for removal by address of the Houses should be substituted for or supplemented by a new mechanism designed to meet changing needs and conditions. The Sub-Committee, in its 1972. Report, answered the said question in the affirmative and has proposed a new procedure for removal of judges. The Sub-Committtee has recommended the establishment of an ad hoc judicial commission to be ap- , I SUB-COMMl'T! EE ON JUDL. ACCOUNTABILITY v. U. O. I. (B. C. RAY, J. ) 33 pointed by the Lord Chancellor, if he decides that the question of remov- · ing a judge is to be investigated. The Commission should include a majority of, and in any event not less than three, persons who hold or have held high judicial office. Members of Parliament or persons who hold or have held any political appointment would be excluded.

Upon completing its inquiry the ad· hoc Commission shall report the facts and recommend whether the question of removal of a judge should be referred to the Judicial Committee of the Privy Council. If the Commission so recommended, the Privy Council would consider the matter and if it concluded that the judge should be removed, it would S\l advise Her Majesty. [see: Shetreet 'Judges on Trial', (1976);. pp. 404-405]. Dr. Shetreet has suggested a via-media and has favoured the estab- C' lishment of a Judicial Commission for removal (but not for discipline short of removal) along the lines suggested by the Sui>-Committee but has expressed the view that the existing process of address should also be preserved. [See: Shetreet 'Judges on Trial', (1976); p. 409]. Similar view has been expressed by Margaret Brazier. (See: Rodney Brazier 'Constitutional Texts' (1990) pp. 606-607). 13.

In Canada, under section 99(1) of the Constitution Act of 1867, the judges of the superior courts hold office during good behaviour, and are remoyable by the Governor-General on address of the Senate and House of Commons. On petition for removal submitted in 1868 and 1874 the matter was referred to a Select Committee of the House. In a third case in· 1874 the judge died before any action could be taken on motion for appointment of a Select Committee.. Recently ill 1966-67, a motion for removal of Mr. Justice Leo Landreville of the Supreme Court of Ontario was moved and in that connec,tion a Royal Commis~ion consisting of Mr. Justice Ivan C. ·Rand, a retired judge of the Supreme Court of Canada was appointed under the Inquiries Act R. S. C. 1952 C. 154 to conduct an enquiry. After considering the report of the said Commission, a Joint Committee of the Houses recommended removal but the judge resigned while Parliament was preparing for his removal by joint address.

Thereafter, Judges Act was enacted in 1971 whereby Canadian Judicial Council has been ~eated. The functions of the said Council as set out ins. 39(2) include making the enquiries and the investigation of complaints or alle- ... gations described ins. 40. Section 40 provides that the council may conduct an enquiry to determine whether a judge of superior, district or county court should be removed from of~ce and it may recommend to the Minister ofJustice of Canada that a Judge should be removed from office. The grounds on which such a recommendation can be made are set out in s. 41(2) of the Act and they are : (a) age or infirmity, (b) having been • guiliy of misconduct, (c) having failed in the due execution of his office, or (d) having been placeci, by his conduct or otherwise, in a position incompatible with the due execution of his office. (Gall 'The Canadian LegalSystem' (1983); pp. l84-186). \ In l982 the matter of Mr. Justice Thomas Berger, a Judge of the :B .

Supreme Court of British Columbia, was investigated by the Canadian Judicfal Council prompted by certain remarks made by the judge. The Council concluded that the public expression of political views in the nature oft:tose made by Mr. Justice Berger constituted an "indiscretion", but that they were not a basis for a recommendation that he be removed from office and on the basis ofthe said recommendation, no further action was taken though Mr. Justice Berger tendered his resignation as a judge a few months later. (See: Gall: The Canadian Legal System, (1983) p. 189). . . 14. Under section 72(ii) of the Commonwealth of Australia Constitution Act, 1900, the justices of the High Court and of the other courts created· by the Parliament cannot be removed except by the Govemor- General-in-Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved · misbehavior or incapacity. Similar provisions are contained in the Consti- ..

tutions of the States with regard to removal of Judges of State Courts. Proceedings were initjated for removal of Mr. Justice Murphy of the High Court of Australia in 1984 under section 72(ii) of the Commonwealth of Australia Constitution Act. In connection with those proceedings at first a select Committee of the Senate was appointed to enquire and report into the matter. It consisted of six senators drawn from three political parties. The Committee by majority decision (3: 2, one undecided) found no conduct amounting to misbehaviour under section 72(ii). In view of the ·split vote a second Committee of four senators from the same three political parties was established and it was assisted by two retired judges - one from the Supreme Court of Western Australia and the other from Supreme Court ofthe Australian Capital Territory and the said Committee recorded its finding but the judge did not appear before either of the committees.

The judge was also prosecuted before the Central Crimin. al Court ofNew South Wales and was found guilty ofan attempt to pervert the course ofjustice but the said verdict was set aside by the Court of Criminal Appeal. Fresh trial was held whereunder the judge was found not guilty. Thereafter, an ad hoc legislation, namely, Parliamentary Commission of Inquiry Act, 1986 was enacted by the Commonwealth Parliament and a Commission consisting of three retired judges respectively of Supreme Court of Victoria, Supreme Court of Australia Capital Territory SUB-COMMITIEEON JUDL.. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. ] 35 and the Federal Court and Supreme Court of South Australia was constituted to investigate into the allegations of misbehaviour. Before the said " commission could give its report, the judge became gravely ill and the Act . --. was repealed [Lane's Commentary on the Australian Constitution, (1986) p. 373). 15.

In one other case, proceedings for removal were initiated against ·Mr. Justice Vasta of the Supreme Court of Queensland and for that purpose, the Queensland Legislature enacted the Parliamentary (Judges) Commission o·f Inquiry Act, 1988 whereby a commission comprised of three -'(" retired judges respectively of the High Court of Australia, Supreme Court of Victoria and the Supreme Court ofNew South Waies was constituted. 16. In Australia, there has been criticism of the existing procedure with regard to removal of judges both by judges as well as by lawyers. Mr. Justice L. J. King, Chief Justice of the Supreme Court of South Australia, has observed: "The concept of removal by an address of· both Houses of Parliament is itself the subject of a good deal of criticism. Curiously, common criticism which are made are contradictory.

One criticism is that the necessity for the involvement of the legislature ensures that the procedure will not be used and that the judges therefore have a practical immunity from removal. Removal by this means is certainly extremely rare. That may be, however, because in the countries in which this procedure prevails, conditions are such that a judge who commits a serious act of judicial misconduct would certainly resign. That consideration, together with the fact that standards of judicial conduct are generally very high in those countries, renders removal by the legislature a rarity. The opposite criti- · cism, however, is that there is no established procedure for the trial ofa judge whose remQval by the legislature is sought. It is assumed that the legislature would itself institute some form of inquiry at which the judge would be able to defend himself ·against the accusations, but that would be a matter for the .. .. legislature in each case.

There are some who fear that a parlia- LW . _,. mentary m~jority, encouraged by inflamed public feeling about an unpopuiar judicial decision, might some day act to remove a judge . without due process. It is at teasd\uestionable whether the system of removal by an address of both Houses of Parliament accords to a judge the degree of'security which is required by the concept)Jfjudicial independence. ['Minimum Standards ofJudic. ial Independence' 1984 (58) AU 340, at p. 345] Similarly, Mr. · Justice M. H. Mclelland of the Supreme Court of New South Wales has expressed the view: "In lieu of measures of the kinds already discussed, some permanent, and preferably Australia-wide, machinery should be provided by legislation for the purpose of establishing an effective procedure for the determination by· a judicial tribunal · of the existence of misbehaviour or incapacity which could warrant a judge's removal from office.

The design of that machinery should be such as to produce as little damage to judicial indej>endence, public confidence in the judicial system, and the authority of the courts, as is consistent with its effective operation. It should also be such as to ensure to a judge both procedural fairness and protection from public vilification or embarrassment pending the making of the determination". (Disciplining Australian Judges, (1890) 64 AU 688 at p. 401) Mr. Justice Mclelland has also suggested that the tribunal should be subject to the supervisory jurisdiction of, and an appeal should lie from the tribunal to, the High Court of Australia. In this context, he has stated: "Furthermore, the protection of judicial. tenure and independence which the Act of Settlement provisions were intended to effect, has i. 1 the intervening period lost a great deal of its strength. In 1701, the Crown, the House of Lords and the House of Commons were three powerful but relatively independent entities.

It was necessary for a judge to incur the . displeasure of all three concurrently to be at risk of removal · under the parliamentary address procedure. The subsequent development of the party system and cabinet government (especially with modem ideas of strict party discipline) has radically altered the position. In modem times, the executive government and the lower house (and frequently the upper house, where there is one) are effectively under the control of a single individual or cohesive group, so that now a judge may be at risk of removal Under the parliamentary address procedure if SUB-COMMITIEEON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. ) 37 he or she were to incur the sole displeasure of that individual or group. " ~/ (Disciplining Australian Judges, (1990) 64 ALJ 388 at p.

402-3) Sir Maurice Byers, fonner Solicitor General of the Commonwealth has also spoken in the same vein: "A federal system involves a tension between the High Court and the Parliament and the executive. Recent years have seen this increase because interpretations of the Constitution have become party dogma. The Court's constitutional decisions are seen by many of the uninfonned and quite a few of the infonned as bearing upon party political questions. When, as in the case of Mr. Justice Murphy and to a much less degree Sir Garfield Barwick, a fonner political figure, hands down a judgment he attracts the animus and often the abuse of some in Parliament. Section 72 of the Constitution leaves him exposed to the attack ofhis opponents and the often doubtful support of his fonner friends. Whether Parliament may itself decide the judicial question of his fitness for office or "proved misbehaviour or incapacity" is at the least doubtful. But the Court should not be exposed to this hazard.

A Commission of Judges whose membership rotates is called for. " (From the other side of the Bar Table: An Advocates' view of the Judiciary, (1987) 10 University ofNew South Wales Law Journal 179 at p. 185). A Constitutional Commission was set up in Australia for suggesting refonns in the Commonwealth Constitution. The said Commission has recommended that provision should be made by amendment to the Commonwealth Constitution for (a) extending the security of tenure provided by section 72 to all judges in Australia, and (b) establishing a national judicial tribunal to determine whether facts found by that tribunal are capable of amounting t_o misbehaviour or incapacity warranting removal ofa judge from office. (Mclelland 'Disciplining Australian Judges', (1990) 64 ALJ 388, at p. 403) . 17. In the United States, the removal ofa judge of the U. S. Supreme ·Court or a Federal judge is governed by the provisions of the U. S.

Constitution wherein Article 11(4) provides for the removal from office of the President, Vice-President and all civil officers of the United States on impeachment for, and conviction of, treason, bribery or other high crimes . and misdemeanours. Impeachment may be voted by a simple majority of ~e members of the House of Representatives, there being a qborum on the floor and trial is then held in the Senate, which may convict by a vote of two-thirds ofthe members of the Senate present and voting, there being a quorum. With regard to state. judiciary, the process of removal is governed by the State Constitutions. Majority of the States follow the federal pattern and provide for impeachment as the nonnal process of removal of appointed judges. In some States, provision is made for removal by an address of the Governor to both Houses of legislature or by a joint resolution of the legislatU. re.

In some States, the removal power is vested in the State Supreme Courts while in some states, special courts are provided to hear removal charges. In the State ofNew York, the Court is known as the Court on the judiciary. (See Henry J. Abraham: The Judicial Process. 3rd Ed. p. 45). For judicial administration at the national level, there is Judicial Conference of the United States which consists ofthe Chief Justices of the United States, the chief judges of each of the eleven numbered circuits and ofthe District ofColumbia and federal circuits but also, since 1957, a district judge representative from each circuit with the exception of the federal circuit, which lacks a trial-court tier. By an Act of the Congress passed in 1932 (incorporated in Title 28 of the U. S.

Code) the Judicial Conference is charged with the duty to make a comprehensive survey of the condition of business in the courts; to prepare plans for assignment of judgef to or from circuits or districts where necessary; and to submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business. The work of the Judicial Conference is performed in special committees which include the special committee on judicial ethics. Another Act of Congress passed in 1939 makes provision for a judicial council for each circuit composed of circuit judges of the circuit who is empowered to make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit.

The mandate of the Judicial Councils embraces the business of the judiciary in its institutional sense (administration of justice), such as avoiding of loss of public esteem and confidence in respect to the court system, from the actions of a judge or other person attached to the courts~ The Judicial Councils have exercised the power of review of allegations of misconduct ,. on the part of coli. rt personnel, officers and judges. In view of the increased number of judges, who can be removed only by the process of impeachment, Congress has enacted the Judicial Councils Refonn and Judicial Conduct and Disability Act of 1980 whereby the Judicial Councils have been explicitly empowered to receive ccmplaints about judicial SUB-COMMITIEE ON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J.

) 39 conduct opaquely described as "prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a Judge or magistrate is unable to discharge all the duties of office by '( reason ofmental or physical disability. " It prescribes an elaborate judicilised ... procedure- for processing such complaints within the administrative systern of the councils and the Judicial Conference. Should a Council determine that the conduct constitutes grounds for impeachment the case may be certified to the Judicial Conference of the United States which may take appropriate action and if impeachment is deemed warranted, the Conference is empowered to transmit the record and its determination to the House of Representatives.

~ In so far as the States are concerned, all the fifty States have central institutions for disciplining their judges and in each a variously constituted commission is organised in either a single tier or in many tiers depending on the perceived desirability of separating fact-finding from ·judgment recommendation tasks. Commission recommendations are transmitted to the State Supreme Court for its authoritative imprimatur, except in states where they are received by legislatures that retain judicial removal power. (See Robert J. Janosik Encyclopaedia of the American'Judicial System, Vol. II pp. 575 to 578). 18. This study of the practice prevailing in the abovementioned countries reveals that in Canada, Australia and the United States, the process of removal of a judge incorporates an investigation and inquiry into the allegations of misconduct or incapacity against a judge by a judicial agency before the institution of the formal process of removal in the legislature.

England is the only exception where the entire process is in Parliament but there also views are being expressed that it should be replaced by a judicial process of investigation by a judicial tribunal before the matter is taken up by the Houses of Parliament. This is also the trend of the recommendations in the resolutions adopted by the United Nations General Assembly and international conferences of organisations of lawyers. 19. International Bar Association at its 19th Biennial Conference held at New Delhi in October 1982 adopted Minimum Standards of Judi- -~· cial Independence. Paras 27 to 32 relating to 'Judicial Removal and Disci- ..... pline' are as under : "27. The proceedings for discipline and removal ofjudges should ensure fairness to the judge, and adequate opportunity for hearing. I·. 28. The procedure. for discipline should be held in camera.

The judge may however request that the· hearing be held in public, subject to final and reasoned disposition of this request by the Disciplinary Tribunal. Judgments in disciplinafy proceedings whether held in camera or in public, may be published. 29. (a) The grounds for removal of judges should be fixed by law and shall be clearly defined. (b) All disciplinary action shall be based upon standards of judicial conduct promulgated by law or in established rules of court. 30. A judge shall not be subject to removal unless, by reason of a criminal act or through gross or repeated neglect or physical or mental incapacity, he has shown himself manifestly unfit to hold the position ofjudge. · 31. In systems where the power to discipline and remove judges is vested in an institution other than the Legislature, the tribunal for discipline and removal of judges shall be premanent and be composed predominantly ofmembers ofthe Judiciary. ·32.

The head of the court may legitimately have supervisory powers to control judges on administrative matters. " . 20. The First World Conference on the lndJpendence ofJustice held at Montreal on June 10, 1983 adopted a Universal Declaration on the Independence of Justice. It relates to international judges as well as national judges. The following paragraphs deal with 'Discipline and Re-. . moval' in relation to national judges: ,J. "2. 32 A complaint against a judge shall be processed expedi- . tiously and fairly under an appropriate practice, and the judge shall have the opportunity to comment on the complaint at its initial stage. The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the judge. G~ 2,33 (a) The proceedings . for judicial removal or discipline, when such are initiated, shall be held before a coUrt or a board predominantiycomposed of members of the judiciary and selected by the judiciary.

(b) However, the power of removal may be vested in the Legislature by impeachment or joint address, preferably upon a recommendation ofa court or board as r~f~rred to in 2. 33(a). SUB-COMMITIEE ON JUDL. ACCOUNTABILJTY v. U. 0. [ [B. C. RAY, J. ] 41 [Explanatory Note : In countries where the legal profession A' . plays an indispensable role in maintaining the rule of law and judicial independence, it is recommended that members o(! he legal profession participate in the selecti()n of the members of the court or board, and be included as members thereof. ] 2. 34 All disciplinary action shall be based upon established standards ofjudicial conduct 2. 35 The proceedings for discipline ofjudges shall ensure fairness to the judge and the opportunity ofa full hearing. 2. 36 With the exception of proceedings before the Legislature, the proceedings for discipline and removal shall be held in camera.

The judge may, however, request that the hearing be ileld in public, subject to a final and reasoned disposition of · this request by the Disciplinary Tribunal. Judgments in disciplinary proceedings, whether held in camera or in public, niay be published. 2. 37 With the exception of proceedings before the Legislature or in connection with them, the decision of a Disciplinary Tribunal shall be subject to appeal to a court. 2. 38 A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour, rendering him unfit to continue in office. 2. 39 In the event that a court is abolished judges serving in this court shall not be affected, except for their transfer to another court ofthe same status. " 21. The Seventh United Nations Congress on the Prevention ofCrime and the Treatment of Offenders held at Milan from August 26 to September 6, 1985 adopted the Basic 'Principles on the Independence of the Judiciary.

Paragraphs 17 to 20 dealing with 'Discipline, Suspension and Removal' are as under: "17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. 18, Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to I discharge their duties. 19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct. 20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

" The Congress Documents were endorsed by the U. N. General Assembly in its Resolution 40/32 on November 9, 1985 and Resolution 40/ 146 on December 13, 1985. Resolution 40/146 dated December 13, 1985 of the General Assembly specifically welcomed the Basic Principles on the Independence of the Judiciary and invited Government "to respect them and to take them into account within the framework oftheir national legislation and practice" (para 2). 22. "unlike the judges of the Superior courts in England, the judges in the colonies did not enjoy the security oftenure as guaranteed under the Act of Settlement, 1700 and they held office at the pleasure of the Crowri. (See: Terrell v. Secretary QfState/or the Colonies and Another, 1953(2), 482). The position was not different in India till the enactment of Govemment of India Act, 1935. In Clause (b) of the proviso to..

sub-Section 2 of Section 200 of the said Act which related to judges of the Federal Court, it was prescribed that "a judge may be removed from his office by order of the Go. vemor-General on the ground of misbehaviour or of infirmity of body or mind, if the Judicial Committee of the Privy Council, on reference being made to them, report that the judge ought on any such ground to be removed". Similar provisions were made with regard to judges of the High Court in Section 220. It would thus appear that prior to the coming into force of the Constitution of India, it was necessary to have a determination by a judicial body about the alleged grounds of misbehaviour or infirmity of mind and body before a judge of the Federal Court or High Court could be removed.

Does the Constitution seek to alter this position in a way, as to exclude investigation and proof of misbehaviour or incapacity by ajJdicial body and to rest the power of removal including the investigation and proof of misbehaviour or incapacity in Parliament alone. · : 23. "Basically, the process of removal or impeachment of a judge is a political process. A learned author in "The Impeachment ofthe Federal SUB-COMMITIEE ON JUVL. ACCOUNTABILITY v. U. 0. 1. (B. C. RAY, J. ] 43 Judiciary:' [Wrisley Brown Harward Law Review 1912-1913 684 at pa~e 698) says: "..... Thus an impeachment in this country, though judicial in ... ,. external form and ceremony. is political in spirit. It is directed against a political offence. It culminates in a political judgment. It imposes a political forfeiture. In every sense, say that ofadministration, it is a political remedy, for the suppression ofa political evil, with wholly political consequences.

This results in no confusion of the political and the judicial powers. The line of demarcation is clearly discernible even ""'\ through the labyrinth of formal non-essentials under which ingenious counsel in various cases have sought to bury it. The judgment of the High Court of Parliament upon conviction of an impeachment automatically works a forfeiture of political capacity; but this is simply an effect of the judgment, which is to be distinguished from the judgment itself... " Mauro Cappelletti in 'The Judicial Process in Comparative Perspective' [Clarendon Press-Oxford 1989 at page 731 says: j "Two main features of this accountability type can be identi- ....

tied; first, the fact that account has to be given to 'political' bodies, ultimately to the legislative and/or the executive branches by means of essentially 'political', non-judicial processes; second, and perhaps even more characteristically, the fact that account has to be given not, or not primarily, for 'legal' violations, but rather for behaviour (and this might include private, . out-of-office behaviour) which is evaluated on the basis of 'political' criteria. . ,J... , Perhaps the best illustration of political accountability can be found in the systems ofthe common law tradition. In England, judges (like any other officials) can be impeached 'before the House of Lords, at the suit of the House of Commons', although this practice has fallen into desuetude; moreover, higher court judges can be 'removed from office by the Crown on an address presented to Her Majesty by both Houses of Parliament'.

The idea behind this 'address' procedure is that judges -I are appointed 'during good behaviour', hence, they can be removed upon breach of the condition. Misbehaviour includes such situations as 'the case of conviction upon an indictment for any infamous offence of such a nature as to render tlie person unfit to exercise the office', but also 'impropey exercise of the functions appertaining to the office, or non-attendance, or neglect of or refusal to perform the duties of the office'. Of course the decision of the Houses and the Crown: can only be an essentially political one, not a purely juridical decision, even though we are informed that the removal procedure is subject to some extent 'to the rules ofnatural justice'... " 24. But the Constitutional scheme in India seeks to achieve a judicious blend of the political and judicial processes for the removal of Judges. Though it appears at the first sight that the_p!

o_ceedings, of the Constituent Assembly relating to the adoption of, cl~~-~· (4) and (5) of Arti. cle 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. In the submissions of the learned_counsel who contend against the manifestation of an intention to bring in a judicfal element, reliance has been placed on the proceedings of the Constituent Assembly dated July 29, 1947 relating to adoption ofClause 18 of the report ofthe Union Constitution Committee relating to the Supreme Court. Shri Alladi Krishnaswami Ayyar had moved the said clause subject to ( modifications and conditions in the said clause which related to appointment and removal of judges of Supreme Court.

It was provided that "a judge of the Supreme Court of India shall not be removed from his office except by the President on an address from both the Houses of Parliament of the Union in the same session for such removal on the ground of proved misbehaviour or incapacity. Further provision may be made by Federal la}V for the procedure to be adopted in this behalf'. Shri K. Santhanam had moved an amendment in the said Clause relaiing to removal ofjudges and he wanted the last sentence about further provision being made by Federal law for the proceducre to be adopted in that behalf, to be omitted. Shri M. Ananthasayanam Ayyangar proposed amendments suggesting two alternative clauses in the place ofthe Clause with regard to removal ofthe judges.

In one clause, it was suggested that "a judge may be removed from office on the ground of misbehaviour or infirmity of mind or body by an address presented in this behalf by both the Houses of the legislature to the Pr;:sident provided that a committee consisting of not less than 7 High Court Chief Justices chosen by the President, investigates and reports that the. judge on any such ground be removed". The other alte~ tive clause suggested by Shri M. Ananthasayanam Ayyangar was that a judge of the Supreme Court may be removed from office by the President on the ground· of misbehaviour or of infirmity of mind or body, if on reference being made to it (Supreme Court) by the President, a "'leCial SU~-rMMITIEE ON JUDL. ACCOUNTABILITY v. U. O. l. [B. C. RAY, J. J 45. tribun~ appointed by him for the purpose from amongst judges or exjudges of the High Courts or the Supreme Court, report that the/judge ought on any such grounds to be removed.

" The Constituent Assembly adopted clause 18 with the amendments as proposed by Shri Alladi Krishnaswami Ayyar and rejected the amendments suggested by Shri M. Ananthasayanam Ayyangar. Shri Santhanam did not press his amendment and it was withdrawn. There is no doubt that in the amendments which · were suggested by Shri M. Ananthasayanam Ayyangar, it was provided that there·should be investigation into the allegations of misbehaviour or infirmity by a committee consisting of Chief Justices of the High Courts or the special tribunal consisting ofjudges or ex-judges of the High Court or the Supreme Court, but the rejection of the said amendments moved by Shri Ayyangar does not mean that the Constituent Assembly was not in C.

favour of determination about the correctness of such allegations by judicial body because Shri Alladi Krishnaswami Ayyar, while moving Clause 18 had emphasised the word 'proved misbehaviour' and had stated: "While the ultimate power may rest with the two Houses, the Clause provides that the charges must be proved. How exactly to prove the charges will be provided for in the Federal law. We need not be more meticulous or more elaborate, than the people who have tried a similar case in other jurisdictions. I challenge my friend to say whether there is any detailed provision for the removal of judges more than that in any other Constitution in the world. The general principle is laid down in the Constitution and later on the Federal law will provide for adequate machinery and that is the import of the clause".....

Tbere is sufficient safeguard in the reference "proved ·misbehaviour'' and we might make elaborate and adequate provision for the way in which the guilt could be brought home to . a particular judge in any Federal law that may be passed but that is a different matter"...... "But I do not think that in Constitution itis necessary to provide detailed machinery as to the impeachmeni, the charges to be framed against a particular judge. To make a detailed machinery for all these could be novel procedure to be ~~pted. in any Constitution". (Q>,,stituent Assembly Debates, vols. I to VI at pp. 899-900) 25. Reference was also made to the debates of the C~tituent Assembly dated May 24, 1949 on Article 103 of the Draft Constitulion. Shri Tajamul Husain moved-an amendment in Clause (4) of Article 103 which related to the removal of a judge of Supreme Court and suggested an . amendment in the said clause so as to povide that "ajudge. of the Sup~me . . ~ : .

Court shall not be removed from his office except by an o~der of the President passed, after a Committee consisting of dl the judges of the Supreme Court had investigated the charge and reported,· on it to the President and etc. " The said amendment was negatived by tJie Constituent Assembly. (Constituent Assembly Debates, vol. VTII at pp. 243 and 262). The said amendment was similar to tho~ moved by Shri M. Ananthasayanan:~ Ayyangar at the stage ofadoption of Clause 18 of the report of the Uni Constitution Committee noticed earlier. The reasons which were given y Shri Alladi Krishnaswami Ayyar for opposing the said amendments would apply to this amendment also. 26. ;The proceedings in the Constituent Assembly, therefore, do not give an indication that in adoptiLg Clauses (4) and (5) of Article 124 of the Constitution, the intention of the Costituent Assembly was to exclude investigation and proof of misbehavior or incapacity of the judge sought to be removed, by a judicial body.

Having regard to the views expressed by Shri Alladi Krishnaswami Ayyar, who was a member of the Drafting · Committee, while opposing the amendments proposed by Shri M. Ananthasayanam Ayyangar, it is possible to infer that the intention of the Constituent Assembly was that the provision with regard to the machinery for such investigation and proof was a matter which need not be contained in the Constitution and it is a matter for which provision could be made by Parliament by law. 27. This is some of the historical material and background on the topic. We may now proceed to consider the merits ofthe contentions. - RE: CONTENTION A: 28. This contention has two aspects : whether a motion for removal of a Judge lapses upon the dissolution of the House of Parliament and secondly, the question whether it so lapses or not is a matter within the exclusive domain and decision of that House itself.

On the first aspect, the contention of the learned Attorney General and Shri Kapil Sibal, learned Senior Counsel, are similar. On the second aspect, the learned AttQmey General would say that the question whether a motion lapsed or not is to be decided on the basis ofthe provisions oflaw guiding the matter and the House itself is not its final arbiter. Learned Attorney General would say that the Court alone has jurisdiction to examine and pronounce on the law ofthe matter. 29. On the question of lapse relianc. e was placed on the classic treatise . of Erskine May's "The Law, Privileges, Proceedings and Usage • SUB-COMMIITEE ON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. ] 47 ofParliament" [Twenty-first Edition, London Butterworths 1989]. A motion is described as a "proposal made for the purpose of illustrating the decision of the House". According to Erskine May, certain matters may be raised by only a substantive motion.

He says: "Certain matters cannot be debated, except on a substantive motion which allows a distinct decision of the House. Amongst these are the conduct of the sovereign, the heir to the throne or other members of the Royal Family, a Governor-General of an independent territory, the Lord Chancellor, the Speaker, the Chairman of Ways and Means, Members of either House of Parliament and judges of the superior courts of the United Kingdom, incl. uding persons holding the position of a judge, such as a judge in a court of bankruptcy and a county court, or a recorder... " . 30. Sri Sibal placed strong reliance on the following statements in M. N. Kaul and S. L. Shakdher in "Practice and Procedure of Parliament" as to-the effects of the di8solution of the House : "Dissolution, as already stated, marks the end of the life of HQuse and is followed by the constitution of a new House. Once the House has been dissolved, the dissolution is irrevocable.

There is no power vested in the President to cancel his order ofdissolution and revive the previous House. The consequences of a dissolution are absolute and irrevocable. In Lok Sabha, which alone is subject to dissolution under the Consti7 . tution, dissolution "passes a sponge ov~r the parliamentary slate". All business pending before it or any of its committees lapses on dissolution. No part of the records of the dissolved House can be carried over and transcribed into the records or registers of the new House. In short, the dissolution draws the final curtain upon the existing House". Adverting to the effect of dissolution on other business such as motions, resolutions etc. , the learned authors say: "All other business pending in Lok Sabha, e. g. , motions, resolutions, amendments supplementary demands for grants etc. , at whatever stage, lapses upon dissolution, as also the petitions presented to the House which stand referred to the Committee on Petitions.

" Learned Attorney General urged that a combined reading of Articles. · 107, 108 and 109 leads irresistibly to. the conclusion that upon dissolution of the House, all bills will lapse subject only to the exception stipulated in Article I08. It is further urged that on first principle also it requires to be accepted that no motion should survive upon the dissolution of the House unless stipulated otherwise under the Rules of Procedure and conduct of business. The doctrine of lapse, it is urged, is. a necessary concomitant of the idea that each newly constituted House is a separate entity having a life of its own unless the business of the prnvious Hous·e is carried over by the force of statute or rules of procedure.

Both the learned Attorney General and Shri Kapil Sibal took us through the Rules of Procedure and - Conduct of Business in Lok Sabha made under Article 118 of the Constitution to show that invariably all pending business come to an end with the expiry of the term of the House or upon its earlier dissolution. Shri Ram Jethmalani for the petitioner-sub-committee referred to the conventions of the British Parliament and urged that pending business lapses on prorogation and as a general practice the House is usually prorogued before it is dissolved. Learned counsel said that impeachment motions are sui generous in their nature and that they do not lapse. It is. however, necessary to distinguish the Indian Parliamentary experience 0 under a written Constitution from the British conventions. Indeed, referring to the doctrine of lapse this Court in Purushothaman Nambudiri v. The State pfKera/a [1962] Suppl. I SCR 753 Gajendragadkar J said: "..... .

In support of this argument it is urged that wherever the English parliamentary form of Govrnment prevails the words "prorogation" and "dissolution" have acquired the status of terms of art and their significance and consequence are well settled. The argument is that if there is no provision to the, contrary in our Constitution the English convention with regard to the consequence of dissolution should be held to follow even in India. There is no doubt that, in English, in addition to bringing a session of Parliament to a close prorogation puts an end to all business which is pending consideration before either House at the time of such prorogation; as a result any proceedings either in the House or in any Committee of the house lapse with the session Dissolution of Parliament is invariably preceded by prorogation, and what is true about the result of prorogation is, it is said, a fortion· true about the result of dissolution.

Dissolution of Parliament is sometimes described as "a civil death of Parliament". Ilbert, in his. work on 'Parliament' has observed that "prorogation means the end of a session (not of a Parliament)"; and adds that "like dissolution, it kills all bills which have not yet passed". He also describes dissolution as an "end of a Parliament (not merely of SUB-COMMITIEE ON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. ) 49 a session) by royal proclamation", and observes that "it wipes the slate clean of all uncompleted bills or other proceedings"... "[p. 759 & 760]. After referring to the position in England that the dissolution of the · House of Parliament brought to a close and in that sense killed all business of the House at the time ofdissolution, the learned Judge said: "....... Therefore, it seems to us that the effect of cl. (5) is to provide for all cases where the principle of lapse on dissolution should apply.

If that be so, a Bill pending assent of the Governor or President is outside cl. (5) and cannot be said to lapse on the dissolution of the Assembly. " [p. 768] "........ In the absence of cl. (5) it would have followed that all pending business, on the analogy of the English convention, would lapse on the dissolution of the Legislative Assembly. It is true that the question raised before us by the present petition under Art. 196 is not free from difficulty but, on the whole, we are inclined to take the view that the effect of cl. (5) is that all cases not falling within its scope are not subject to the doctrine of lapse of pending business on the dissolution of the Legislative Assembly. In that sense we read cl. (5) as dealing exhaustively with Bills which would lapse on the dissolution of the Assembly. If that be the true position then the argument that the Bill which was pending assent of the President lapsed on the dissolution ofthe Legislative Assembly cannot be upheld. " [P.

769] 31. It is true that Purushothaman Nambudiri case dealt with a legislative measure and not a pending business in the nature of motion. But, we are persuaded to the view that neither the doctrine that dissolution of a House "passes a sponge over parliamentary slate" nor the specific provisions contained in any rule or rules framed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a judge under Article 124. the reason is that Article 124(5) and the law made thereunder exclude the operation of Article 118 in this area. Section 3 of the Act provides: " 3(1) If notice is given of a motion for presenting an address to the President praying for the removal ofa Judge signed,- (a) in the case of a notice given in the House of the People, j by not less than one hun.

dred 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, ifany, 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 (I) 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 ofwhom - (a) One shall be chosen from among the Chief Justices and other Judges ofthe 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 ofthe Speaker or, as ;...

>the case may be, the Chairman, a distinguished jurist; Proviso&) Omitted Sub-sections) as (3) to (9)) unnecessary here. Section 6(2) provides : "(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 takt. a up for consideration by the House or the Houses of Parliament in which it is pending. " The effect of these provision$ is that the motion shall be kept. pending till the committee submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration. Otily one motion is envisaged which will remain pending. No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported.

The reason is that a law made by the Parliament and binding on the House can provide against the doctrine of lapse. The law envisaged in article 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, and under the present. s13tute does SUB-COMMIITEE ON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. ] 51 provide against the doctrine oflapse. Further, Art. 118 expressly stat~~ that each Hoose of Parliament may make rules "for regulating, subject to the provisions ofthis Constitution". In State of Punjab v. Sat Pal Dang & Ors. [1969] I SCR 478 this Court held that the law for purposes of Article 209 (arialogues to Article 119) could even take the fonn of an Ordinance promulgated by the Governor of a State under Article 213 and that wherever there is repugnance between the Rules of Procedure framed under Article 208 (Article 118 in the case of Parliament), the law made under Article 209 shall prevail.

In ·-~.. i, 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. Indeed, no question of repugnance could arise to the extent the field is covered by the law under Article 124(5). Such a view would indeed obviate some anomalies which might otherwise arise. Rajya Sabha is not dissolved and a motion for presentation ofaddress for the removal of the Judge can never lapse there. Section 3 applies to both the Houses of Parliament. The words "shall keep the -1 motion pending" cannot have two different meanings in the two different contexts. It can only mean that the consideration of the motion shall be deferred till the report of the committee implying that till the happening of that event the motion will not lapse. We are of the . view that the argument that such a motion lapses with the dissolution of the House of Parliament is not tenable. 32.

The second limb of Contention A is that the question whether a motion has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive master. No aspect ofthe matter, it is contended, is justificiable before a Court. Houses of Parliament, it is claimed, are privileged to be the exclusive arbiters of the legality of their proceedings. Strong reliance has been placed on the decision in oft-quoted decision in Bradlaugh v. Gossett, [1884] 12 Q. B. D. 271. There the exclusiveness of parliamentary jurisdiction on a matter related to the sphere where Parliament, and not the Court, had exclusive jurisdiction even ifthe matters were covered by a statute. ' 1' .....

, But where, as in this country and unlike in England, there is a written constitution which constitutes 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, indeed, an incident of and flows ·from'this concept of the'fundaril:en:taland the~higher law being:the touc~ stone of the limitsiof the Jx)wers of the various organs of the S~~ which derive power and, authority under Constitiition and. ithat the ju~! al wing is the interpreter ofthe Constitution and, therefore, of the limits ofauthorrity Of the' dlfferent vorgan$ ·of~tbe 'State~ltiis to be1noted thah'the British I'atliament:With'ithelCrown'. iS~~supreme:and~its powers are unliinited,a:nd iJ3 coUitS"have~iio pOw~t'ofjudicial1foview:ofilegislation...

11: "J :1 1:0· l"Il ':l;ru;nguq~1 t:i ~n~··H 1~v~neri"' tsd! bnn (I£ :; ;1- 1-"J E! l' i; 'lo 10" ni 8I lTJii~'16ctnne is~in10ne·sense':the'doctriile of ultra vires inlthe. constih\tional'law. Iii a·federaI~sernp:theojudiciary becomes•the guardian:o(the 1 'Constitution! Itideed; mA~K. Gopalan w. •The~tate of. Madras, {1950]iSCR >--- '88'Artiele 13 itself-was- hetd·to belex'. abundante_ cautela andithat even. in ·c iis absence'if any of the furtdamental'. rights were infringed by any ·legislative-1e"nactinent; 1the co\irt'•liad always ;powerttor'. dectare the: enactment invalid. The interpretation of the Constitution as a legal instrument and its obligation ·is th~lfunctfon of thei C0Urts·. ,,~•1tris einphatically1the province arid'. duty ofthe judicial departmentto say. what. the law is". /n1Re: Spedal Reference Case; [196. 5] l SCR413Gajendragadkar;CJ said:···" C'· HP•: "~ i ~'·. I •·1 ·1~. •..... ~f) ;:,::;,. _~. ". 11 .. ~;; '~ ·, q.... t " ".......

though our Legislatures have plenary powers, they func- ition' within the limits prescribed; by the material and relevant provisions of the Constitution. , · 1 1 • • , ' 1_ • . or indirectly... " ,, . ,,. ,ii' ,LtL! ;;nJ i" :-11:. i i'1. 1, -,,! llJv'. J ?. id1 £! 1 ?. S ,'. '1'-'rlw tutl ,; ~; ·'-'•- i~--; rii ;. i,. s ! £! W'>f'a>l:-. tii ;. ;r'; •~iuHl2110? rbufw no111U! 1"'f. tQ ~J~~~J , _,rlio ! ms ·~:! EThe! Housei'oH::ommoifs1iis'iAot a'llC6i:irf Jr~Jusi'fte1· buigifie ;,:t115bi:::ni_lie:ffe-crrof y. ii1 . t}. ous references to the motion for, the purpo~e1 <>f. 9. ~~u. s~ ,(4)~ ~~-. M. ~\e:;H1, 1 which in turn, imports the C? n~~ptpf "pr~~ed~ raj~~~~. yi? ur ~L~~~p~a! 'GJ ity. What lifts the bar under. Article 121 is the 'proved: misbehaviour or- - ;,1. ". ~&1J~l ~ · • 4 •v" , 1 l •1;,J1 '7. 4~1 U.... I \J ..... :OiJV' :;~ r1 U ll' ~ 11' 'LI .. 11 1{1 ·1 '. ··t~ .. 1. i•. ...... ,,. t "Jr; 1~~10; • '-~ ~ lliJ :JiJ'~ , 37. The seminal question _is whether,,claps~ (~). is merel.

Y. aμ ~~~r, bl! ng provi~is>,n pa~ic,ularly ~ vi~~ of the ~se 124(4)b~. perf9rme~ ~t~ r~51f1of. ~! sb~h~yi~! J1:, ,~~n incap_~city, of aJl! dgeJ! '1!! ~~ ·~ fo~~ ! n e£o~e _av~il~bl~_:p~~y ,foJ, 1 enac! ~llg ~e law under clause (5), and if m! _sb~~aviour ,o~.. inefip~city i~ . ~ "pr9v,ed", . ~· a~~o! dance ~th such law. The ~_ot_ion, F. ~!. C~ 1lifts . ~! 1~. ~ar;;; E3 contained iμ A! fi,cle J. 21 js. really a motion for s1:;1ch. tr~ll}! '_Val,\ll}. d~! ~la~~~ti (4) of Article 124 moved in the House after the alleged m~~J>~H~Y. ~% ehaviour 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 Articles 121, 124(4) and 124(5). The general scheme of the Act conforms to this view.

Some expressions used in the Act, particularly sections 3 and 6 to suggest that the motion is initiated in the House or is kept pending in the House during investigation can be reconciled, if this Constitutional Scheme is a 7ake! g1vmg,,rt_se ~.! ~~J constitution of ,the Inquiry Committee under the Act, also ,does not ari~e. l,' fl · r~ • • • ' • ' ·: •- ~.. • J '· Li aj~, ~-e~e can b~ no occasion for the House to_ say so. at any tim~· . If t! -1~,, ~l f! o~s(i~, there~ore, not required to consider this question ~ince,~e,p3! ,_l,~~:-u ~~~~-~toc~ss. can ~omm~nce o? ly after a fmding. ? f guilt beingl~~~~j.! ~ the further question of a futile wnt also does not anse. The argument that ~~~:tt. o'~~ . ~fill decide even after a finding of guilt 'thatl i,t_~ ~o,uj~. ~o~: PfOCee~ ~ vo~ ~or removal of the Judge is not germane,to ~e Assue~~'=°~~ ~~! i~ J;ennissible in the Constitutional Scheme itself under Art! cle . I. M(1). 1 itr;~,sP-~~!

iv~ of ihe fact whether_ Articl~ 124(5) is a_ mere en~b~ing_P,~oxi- I 1 11 sio~ C:/i;ao' c,on,. st. i~ti -tf. ~. ~t:°if ~~'! le . 'Y? en the matter come~ first. ~efor. ~.. t~~ ,Pai_:li3}117H! 1iIU~~ ~? ~~i~~ioruμ, S~heme, Article l,~. 1. pro~des tha~ . "! ~:.. ~lll" is ~i~~u ~~:,? -! h-~,~jv~~w-~~7~~s diffi_~ulties b~ restricting ~s~u~~,i~~ ~.! ar! i! lm~9~. :; on ,~ . ~? tW~, ~~~~. ~? ~~ be before it. The suggest~on _to . ~ey~l ped later, ~bile enacting these provisions with extreme care and caution in a written Constitution, is extremely unlikely. This indicates that this area is not left uncovered which too is a pointer that the stage at which the bar in Article 121 is lifted, is the starting point of the parliam~ntary process i. e.

when the misbehaviour or incapacity is proved; the stage from the initiation of the process by making the allegation, its mode, investigation and proof are covered by the law enacted under clause (5); in case the allegation is not proved, the condition precedent to invoke the Parliament's jurisdiction under clause (4), does· not exist, which is the reason for section 6 of 1968 Act saying so; and in case it is proved, the . X SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. ] ::61 ''ptoces"s'iindJr clai. iSe·;(4) commences, culminating in ·the resuJtlproVided in PA btt. 1",! i'fll <> f·removal . and clause (5) the pre-requisite. for;removaJJqis!! pgu_ts]1&9 . frpm11Articlesctll8,)19, and 121,- all 0(1which-relatei! ~;pr-0~~~1. lf~Jl! l! ~ 'Q: . c;:ondu. ct of:business·in Parliament.. Article 1~(5). does J! 0! 1;:tl! erfo.. r. e.. iQP~! '1 ~te in the}same field ~,Article l l 8_re! ating;to,;pfo_C! '~lJ! e1@d. ~o~~! c19l,,Qf •business in :Parliament1~ •t1A n• 1;:. .

' dt I( ). ' cI ~' 1t'. ' ,1: nu ~nqiuq eing -only legislative as in, all the laws enacted by it; and the second pat1. only after proof under clause (4) is in Parliament, that process,c:omm~ncing~only on proof in accordance with the law enacted under clause (5). Thus the first part is entirely statutory while the second part_? :_lo~eAs ~he parliamentary process. :cirH no tn J3 :-o. :r ·,1 "' ii:nt~·u'fh~ ~onstitution intended a clear provision for the first part I. 2£V~~ed. fuJly by enacted law, the validity of which and the process therew.!. ~e[. ,~ing subject to jml~cial review independent of any political colour an~'.. ~fte,! ' p~9of it, was intended to be a pruliamentary process. It is this sy~t~~s. is inade. in ~ur C~nstitutional Scheme for removal ofa Judge. p °'"'m' 1'\,, 1lL\I ~·:I I . 6 0 ~1 1( t~. 1?. _J! l_otion_ for presenting an address for removal is envisaged by ¥icl~s)_21 a~~ 124(4) 'on ground ofproved misbehaviour or incapacity' i! P! ~~l! PP?.

ses' that misbehaviour or incapacity has been proved earlier. Th! ~, i~ 11R? r. e so on account of the expression 'investigation and proof u. ~~4:i~,c~ause (5) with specific reference to clause (4). This indicates that '! pv,estigation and proof ofmisbehaviour or incapacity is not within clause (4) ~ut~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 - P~? Of ". l'hic~ is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha. [1991] SUPP. 2 S. C. R. 45. ·The significance of the word 'proved' before the expression 'misbehaviour or incapacity' in clause (4) of Article 124 is also i~dicated ,,,..... ' 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 ofremcval 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 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 tlie ground of misbehaviour under Article 317 (I) is to be by the Supreme Court, in the case of a Judge who is a higher constitutional functionary, the requirement ofjudicial determination of the ground is re-inforced by the addition of the word 'proved' in Article 124(4) and the requirement of law for this purpose under Article 124(5). 46.

Use of the word 'rilay' in clause (5) indicates that for the 'procedure for presentation of address' it is an enabling provision and in the .. absence of the law the general procedure or that resolved by the House · may apply but the 'investigation and proof is to be governed by the enacted law. The word 'may' in clause (5) is no impediment to this view. 47. On the other hand, if the word 'shall' was used in place of 'may' in clause (5) it would have indicated that it was incumbent on the Parliament to regulate even the procedure for presentation of an address by enacting such a law leaving it no option even in the matter of its procedure after the misbehaviour or incapacity had been investigated and found true. 'Sometimes, the legi. slature uses the word "may" out of deference to the high status of the authority on whom the· power and the obligation are intended to be conferred and imposed. ' (See : State ofUttar Pradesh v. Joginder Singh, [1964] 2 SCR 197 at 202.

Indeed, when a provision is intended to effectuate a right-here it is to effectuate a constituational protection to the Judges under Article 124 (4}--even a provision as in Article 124 (5) which may otherwise seem merely enabling, becomes mandatory. The exercise of the powers is rendered obligatory. In Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford; the Rev. Thomas Tellusson Carter, (1879-80] 5 A. C. 214 at p. 244, Lord Blackburn said : ".... The enabling words are construed as compulsory whenever the object ofthe power is to effectuate a legal right.... " SUB-COMMITTEE ON JUDL. ACCOUNTABILITY v. U. 0. 1. [B. C. RAY, J. J 63 In Punjab Sikh Regular Motor Service, Moudhapura v. The Regional Transport Authority, Raipur & Anr, [1966] 2 SCR 221, this ~ourt --, referring to the word 'may' in Rule 63 (a) in Central Provinces and Berar Motor Vehicles Rules, 1940, o. bserved: ' ".... On behalf of the appellant attention was drawn to the expression 'may' in Rule 63.

But in the context and the language of the rule the word 'may' though permissive in form, must be . held to be obligatory. Under Rule 63 the power to grant renewal of the counter-signature on the permit in the present : case is conferred on the Regional Transport Authority, Bilaspur. The exercise of such power of renewal depends not upon the discretion of the authority but upon the proof of the particular cases out of which such power arises. 'Enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right'. (See: Julius v. Bishop ofOxford, 5 A. C. 214, 244).... " If the word 'may' in Articlel24 (5) is given any other meaning that sub-Article would render itself, to be treated by the Parliament, as superfluous, redundant and otiose. The power to prescribe a procedure for the exercise ()f power under Article 124 (4) could o