Preliminary Issues
Constitution of India — Art. 32 — PIL — Standing — Person interested — Should have a public purpose — Non-impleadment of person aggrieved — Effect — Writ petitions challenging proceedings for removal of a Supreme Court Judge filed by a MP (also an advocate) claiming to be close to the Judge and also by an advocate for the benefit of the Judge — Held (per majority), petition not maintainable — Petitioners have no locus standi — Position of an advocate, who is a busybody having no public purpose and sustaining no personal injury is worse — No impropriety committed in not hearing him orally — Moreover, the Judge concerned having not been made a party, an effective adjudication would not be possible in view of possibility of an adverse decision on merits — (Per K. Ramaswamy, J. contra), petitioner advocate MP, being a person interested in public inquiry arising out of breach of a public, constitutional and legal duty, has standing to maintain the petition — But the other petitioner-advocate had no locus standi
Practice and procedure — Oral hearing — Denial of when party, as evident from his petition and written arguments, has nothing additional to contribute, held, justified
Held :
Per majority:
Ordinarily, it is the person aggrieved and directly affected who must seek the relief himself unless disabled from doing so for a good reason which permits someone else to seek the relief on his behalf. In that situation also the claim is to be made in substance by the person affected even though the form be different and it is so stated expressly. The only reason given for the Judge not doing so in this case was that in view of the high office held by the Judge, it was consistent with the dignity of that office that he should not be a petitioner or even a party in a case filed in the Court in which he himself is a Judge. It is not possible to accept this reason.
(Paras 15 and 12)
Murphy v. Lush, (1986) 65 ALR 651, referred to
The points raised in these petitions in the context of clauses (4) and (5) of Article 124 and the law enacted under Article 124(5) are bound to arise only in the context of a holder of the high office of a Judge of the Supreme Court or a High Court and at a time when he faces proceedings for his removal so that the decision thereon is bound to affect the interest of the Judge concerned. If the occasion for requiring a judicial adjudication arises in this context at a time when a particular Judge is facing proceedings for his removal from office as in the present case, the reason advanced by counsel for not even impleading him as a party in the petition appears to be tenuous. Anyone facing such a proceeding and wanting to challenge it has to do it himself. It is not possible to predict the outcome of the decision on merits of the points raised in these petitions and, therefore, the likelihood of a conclusion adverse to the interest of the Judge being a possibility, an effective adjudication of the same in his absence is not feasible which alone is a sufficient reason to decline consideration of the points raised in the petitions in these circumstances.
(Para 12)
Ample opportunity was afforded to the petitioners at the commencement of the hearing and even thereafter till its conclusion, to implead the Judge but they have persisted in pursuing the writ petitions without impleading him. No question of affording further opportunity now arises. The question of the Court giving suo motu notice to the Judge also did not arise, in the face of petitioners' persistence not to implead him.
(Para 9)
In view of our judgment in Sarojini Ramaswami v. Union of India, (1992) 4 SCC 605, also decided today we do not consider it appropriate to examine any of the questions raised in these petitions.
(Para 9)
An advocate who was a busybody and had filed the petition for no ostensible public purpose cannot be heard. His application to the Chief Justice of India to make the wholly unjustified grievance that he was not orally heard is untenable apart from being misconceived. Public interest was served better by early conclusion of the hearing rather than its prolongation to enable every individual, who so desired, to address the Court orally. In a matter of this kind, it was not only unnecessary but also inappropriate to permit the hearing being converted into a debate for participation of every individual in the name of public interest. There is no special injury to him alleged and, therefore, the right he claims is no better than that available to every other advocate in the country. Mere membership of the Bar cannot provide the foundation for the right to maintain a separate petition. Since it cannot be visualised that every advocate as an individual can claim such a right in public interest, the claim made by petitioner, to this effect and his insistence on being orally heard when he had nothing additional to contribute, as is evident from his petition and the written arguments, is clearly misconceived. It is necessary that this tendency is curbed in public interest to avoid wastage of courts' time and abuse of its process.
(Paras 19 and 21)
S.P Gupta v. Union of India, 1981 Supp SCC 87, relied on
Therefore, both these petitions must be dismissed on this preliminary ground and, therefore, the question of hearing these petitions further does not arise
(Para 8)
When the reference made by the Division Bench to a Constitution Bench is to hear the petition as a whole and not merely decide certain questions of law without even issuing rule, it is wrong to suggest that the order of reference would bind the larger bench or even the Division Bench of the Supreme Court to decide the questions on merits.
(Para 13)
Per K. Ramaswamy, J. (partly dissenting)
The petitioner, being an advocate of Madras High Court Bar and also a Member of Parliament, it cannot be said that he is a pro bono publico. His genuine interest to uphold the dignity of the judiciary is not doubted. The facts present interpretation of the Constitution, the scope of the Speaker's power to admit the motion to remove a Judge, his dignity coupled with the independence of the judiciary, the pivotal organ of the State. Some of the questions raised are of far-reaching importance. As a member of the Bar, he would definitely be interested in settling the law of the procedure to remove a Judge of higher judiciary under Article 124(5); read with the Judges (Inquiry) Act and the Rules. Moreover, the procedure for the removal of a Judge is sui generis. The discretion left to the Committee under Section 4(1) of the Act to regulate its own procedure to investigate into the definite charges against the learned Judge bears vital importance. It is well settled that any member of the public having sufficient interest could maintain an action for judicial redress from public inquiry arising out of the breach of public duty or of law and seek enforcement of such public, constitutional or legal duty. Further, strict rule of locus was relaxed and personal right enforcement was whittled down.
(Para 36)
S.P Gupta v. Union of India, 1981 Supp SCC 87, relied on
The public are vitally interested in the cleanliness of the public administration of justice which is of paramount importance. Public justice is the hallmark of public good. A person genuinely or bona fide interested in seeking declaration of law of public importance would always get sufficient interest and be entitled to seek declaration on that behalf which binds not only the State but every person, even if affected thereby, though not eo nominee a party respondent to the proceedings. A relief in favour of that person in his absence could in an appropriate case also be granted. In the public interest, therefore, any person genuinely interested to uphold independence of the judiciary and the law would get sufficient interest and acquire locus to seek to lay down public law in that behalf. The writ petition, therefore, should not be thrown out on the ground that the petitioner lacks locus to litigate the lis. But every advocate need not be heard which would be only a surplusage. Therefore, the other petitioner who was merely an advocate had no locus standi
(Paras 42 and 36)
S.P Gupta v. Union of India, 1981 Supp SCC 87; B. Prabhakar Rao v. State of A.P, 1985 Supp SCC 432 : 1985 SCC (L&S) 49, relied on
In the larger public interest, as the questions have arisen for the first time, it would be just and fit for the Supreme Court to declare the law of proper procedure to be followed in admitting the motion to remove a judge of higher judiciary and the investigation thereon by the Committee so that it would be the law of the land under Article 141. Though it would be ideal to implead the Judge as respondent, his absence too would stand as no impediment to declare public law which would bind him too. In that view, it must be held that the petitioner, an MP, being a legal practitioner would be entitled to seek only declaration of law of certain aspects which would be adverted to hereinafter.
(Para 43)
Constitution of India — Arts. 32, 137, 142 and 141 — PIL — Reconsideration of earlier decision of Supreme Court sought without even impleading the party aggrieved or directly affected — Held (per curiam), question of reconsideration not open — (Per K. Ramaswamy, J.), it is not open even on the basis of any additional material subsequently discovered — It is ordinarily open in a review petition and in writ petition under Art. 32 it is open only in exceptional circumstances where the earlier decision is per incuriam or results in miscarriage of justice
Held :
Per majority:
The plea for reconsideration is not to be entertained merely because the petitioner chooses to reagitate the points concluded by the earlier decision. Interest of public good should be the guide and there must be compelling reasons for reconsideration of a decision of the Supreme Court for public good. There is no good much less public good being served in reopening those questions which are concluded by a decision of the Constitution Bench in Sub-Committee on Judicial Accountability particularly when the plea is not even made by the Judge concerned himself and the attempt to reagitate those points is related to the same Judge facing the same proceedings for his removal.
(Para 15)
A.R Antulay v. R.S Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372, distinguished
Union of India v. Raghubir Singh, (1989) 2 SCC 754; Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 : (1965) 2 SCR 908, relied on
The argument that the petitioners not being parties to the earlier decision in SCJA case, the remedy of review of that decision was not available to them, instead of supporting their claim for seeking reconsideration of the judgment, actually negatives it. If they are not entitled to seek review, as they were not parties in the earlier proceeding in which the judgment was rendered and the person directly affected remains the same Judge who was a party then but not now, these petitioners cannot have the right which they seek to assert when the context remains the same. Moreover, it is inappropriate to consider these questions at their instance in these circumstances.
(Para 17)
Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699, not reconsidered
Per K. Ramaswamy, J. (concurring)
The correctness of the judgment of the Supreme Court in SCJA case is not amenable to writ jurisdiction.
(Para 37)
Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699, referred to
A judgment of the Supreme Court cannot be impugned or its correctness assailed by way of another writ petition on any ground whatever. The Constitution confers in explicit language judicial review on the Supreme Court and by operation of Articles 138, 139 and 140, enlarged that power, to alongate and effectively adjudicate the questions doing full and effective justice. The power of judicial review is to stamp out excesses in exercise of power, injustice or miscarriage of justice. The decision of the Supreme Court is the last word on the interpretation of the Constitution and the laws as law of the land under Article 141. The Judge, in particular from the higher judiciary, possesses undoubtedly, power and jurisdiction to decide rightly or may err as well. The error must be corrected as provided under law. In its absence, it cannot be disturbed. The superior court has jurisdiction and power to determine its own jurisdiction and error in that behalf does not constitute an error of jurisdiction. The people would shape their course of conduct or dealings or legal affairs in accordance with law. The law laid down by the Supreme Court operates as precedent. The law laid, thus, needs stability, continuity and certainty. The judicial vacillation would undermine the respect for the law and the utility of the very judicial process as well as its efficacy. The Court is bound by the taught traditions and built-in heritage of law. Adherence to precedents, stare decisis, is usually a wise policy for rule of law unless there are clear, compelling and substantial reasons for its reconsideration in the larger public interest. Reconsideration of an earlier view is not due to an act of judicial fallibility but an index of supremacy of law. So when all the relevant provisions of law or material aspects of the case or binding precedent was not brought to the notice of the Court and its impact on the general administration of law, it would need reconsideration. The obvious error committed by the Court leading to miscarriage of justice would need correction by Article 142 or Section 114 read with Order 47 Rule 1 or Section 151 CPC etc. But by itself it is not a licence to unsettle the settled law or keep the law at variance at pleasure or whim.
(Paras 37 and 39)
N.S Mirajkar v. State of Maharashtra, AIR 1967 SC 1 : (1966) 3 SCR 745; Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 : (1965) 2 SCR 908; S.P Gupta v. Union of India, 1981 Supp SCC 87, relied on
A.R Antulay v. R.S Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372, distinguished
It is the decision and not the reasons in support thereof that would be conclusive and binds all parties. Therefore, even if there is any additional material that was subsequently discovered, it would be of little avail to assail the correctness of the judgment except by way of review before the Bench that decided the SCJA case.
(Para 38)
The rule of law laid by the Supreme Court in SCJA case is clear, precise, certain and needs to maintain consistence. It is, therefore, not desirable to reopen the said ratio. But this finding does not conclude the controversy. Facts gave rise to diverse questions of far-reaching importance which had not arisen when the earlier decision was rendered or canvassed.
(Para 41)
Other Aspects Covered by Ramaswamy, J. (Obiter)
Judges (Inquiry) Act, 1968 — S. 3(1) — Initiation of motion against a Supreme Court Judge — Procedure — Conditions precedent — Definite material or evidence in support of the grounds of motion must exist
(Para 45)
Judges (Inquiry) Act, 1968 — S. 3(1) — Motion against Supreme Court Judge — Speaker's decision to admit or refuse to admit the motion — Absence of reasons stated or staring from the record — Decision thereby not violative of Art. 14 or Art. 21 or principles of natural justice
(Para 47)
Judges (Inquiry) Act, 1968 — S. 3(1) and (2) — Motion against Supreme Court Judge — Function and position of Speaker — Scope — He merely performs, though as a statutory authority, a constitutional function to admit or refuse to admit the motion
(Para 48)
Judges (Inquiry) Act, 1968 — S. 3(2) — Constitution of Inquiry Committee by Speaker — Consultation with CJI and Attorney General desirable but failure to do so not per se illegal — Consent of President not required — But before entering upon their duties by a sitting Judge of the Supreme Court and the Chief Justice of a High Court as Presiding Officer and member of the Committee respectively, a notification, necessary
(Paras 45 and 49)
Judges (Inquiry) Act, 1968 — S. 4(1) — Inquiry Committee — Procedure — Committee has discretion to device its own procedure and adopt its own function during the investigation to discover and collect the evidence — Except advocate appointed under S. 3(9) and the Judge concerned or his counsel, no other person, not even the MPs who moved the motion, entitled to participate and lead evidence in proof or disproof of the charges — No one except the Judge, in the event of an adverse finding of guilt and none, when the Judge was absolved of the charge/charges, be permitted to assail the correctness, legality or validity of the proceedings, process or findings of guilt or not guilty
(Paras 50 and 51)
Judges (Inquiry) Act, 1968 — Ss. 3(3), (4) and 4 — Procedure under, neither unconstitutional nor ultra vires Art. 124(4) — Constitution of India, Arts. 124(4) and (5), 246, 14, 21 and Sch. VII List I Entry 77
The Act and the Rules provided built-in fair procedure to prove the alleged misbehaviour or incapacity of a Judge. It is akin to adversarial and trial of a civil suit and the Committee acts as an independent “judicial statutory authority”. The provisions are consistent with Articles 124(4), 14 and 21 and they are not ultra vires the Constitution.
(Para 62)
Judges (Inquiry) Act, 1968 — S. 4(1) — Inquiry Committee as judicial authority adopts the procedure of a trial of a civil suit under CPC — But consideration of evidence is like a criminal case as finding would be ‘guilty’ or ‘not guilty’ on ‘proof beyond reasonable doubt’
Constitution of India — Art. 124(5) — ‘Investigation’ — Meaning of — Words and phrases
The words investigation and inquiry used in Article 124(5), the Act and the Rules are interchangeable and do not take different colours from varied contexts but connote the same theme to prove/disprove misbehaviour or incapacity charged against the Judge beyond reasonable doubt. The investigation contemplated in Article 124(4) of the Constitution or investigation or inquiry envisaged in the Act are synonymous and interchangeable.
(Paras 60 and 61)
Constitution of India — Art. 124(4) — Removal of a Supreme Court Judge on ground of misbehaviour — Charges pertaining to the period of his holding office of Judge of High Court — Alleged misbehaviour, if proved, would remain germane and would not cease to exist on his elevation to Supreme Court
(Para 63)
Constitution of India — Art. 124(4) — ‘Misbehaviour’ — Meaning of — Above normal standard of conduct is expected from a Judge of superior judiciary — Misbehaviour has to be examined having regard to that standard — Words and Phrases
(Para 71)
Corpus Juris Secundum 1 Volume 58; Words and Phrases Judicially Defined, Volume 3; Black's Law Dictionary, 6th Edition, p. 998 and Encyclopedic Law Dictionary, 3rd Edition, at p. 720, referred to
Constitution of India — Arts. 32, 131 to 136 — Judicial review — Nature and scope
Judicial review is an incident of and flows from the Constitution to securing and protecting the welfare of the people as effectively as it may, according justice — social, economic and political in all the institutions of national life. The paramount duty of the court is to protect their rights and translate the glorious and dynamic contents of the directive principles and the fundamental rights as a living law, making them meaningful to all manner of people.
(Para 46)
Administrative Law — Natural justice — Non-recording of reasons by statutory/public authority/functionary would render the decision arbitrary, unfair and unjust violating Arts. 14 and 21 — Constitution of India, Arts. 14 & 21
(Para 47)
R-M/T/11533.C
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