The constitutional scheme for the removal of a Judge of the Supreme Court or a High Court in accordance with Article 124(4) of the Constitution and the Judges (Inquiry) Act, 1968 made under Article 124(5) of the Constitution read with the Judges (Inquiry) Rules, 1969 framed under the Act was considered and indicated in the earlier decision in Sub-Committee on Judicial Accountability.
Article 124(5) mandates enactment of a parliamentary law to regulate the investigation and proof of misbehaviour or incapacity of a Judge under clause (4) and pursuant to it the Judges (Inquiry) Act, 1968 has been enacted by the Parliament. As held in Sub-Committee on Judicial Accountability, on a construction of Article 124, ‘the policy appears to be that the entire stage up to proof of misbehaviour or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it’ and ‘the Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbehaviour or incapacity has been proved’. The Judges (Inquiry) Act, 1968 enacted under Article 124(5) of the Constitution being made for this purpose, the provisions thereof have to be constructed in that light.
The Judges (Inquiry) Act, 1968 provides that the procedure for removal of a Judge of the Supreme Court or a High Court can be initiated only if a notice of a motion for presenting an address to the President praying for his removal, signed by not less than 100 members of the House of the People or 50 members of the Council of States is given to the Speaker/Chairman in accordance with sub-section (1) of Section 3 of the Act. Any other method for initiating the prescribed procedure for removal of a Judge is obviously excluded. The Speaker/Chairman is empowered to either admit or refuse to admit the motion ‘after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him.’
The indication is that the Speaker/Chairman is empowered to consult such persons as he thinks fit and is required to take into consideration the materials available to him for deciding whether to admit the motion or refuse to admit the same. It is reasonable to assume that one such person to be consulted would be the Chief Justice of India , who apart from being the Head of the Indian Judiciary would also be the authority involved in the choice and availability of a sitting Judge of the Supreme Court and a sitting Chief Justice of a High Court as members of the Committee constituted under Section 3(2) of the Act, if the motion is admitted by the Speaker/Chairman.
Sub-section (2) of Section 3 then provides that the Speaker/Chairman, in case he admits the motion, ‘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 of three members of whom one shall be from among the Chief Justice and other Judges of the Supreme Court , one from among the Chief Justices of the High Courts and a distinguished jurist. This means that an inquiry into the grounds on which the removal of a Judge is prayed for in the notice of motion given by the specified minimum number of members of Parliament or in other words the inquiry into the allegations of misbehaviour or incapacity of the Judge requiring his removal would be made by the Committee so constituted comprising of two sitting Judges and a distinguished jurist.
Sub-section (1) of Section 4 empowers the Committee to regulate its own procedure subject to any rules made in this behalf and the giving of a reasonable opportunity to the Judge concerned of defending himself in that inquiry. Sub-section (2) of Section 4 requires the Committee, ‘at the conclusion of the investigation,’ to submit its report to the Speaker/Chairman ‘stating therein its findings on each of the charges separately with such observations on the whole case as it thinks fit.’ The Speaker/Chairman, as required by sub-section (3),’shall cause the report submitted under sub-section (2) to be laid, as soon as may be, respectively before the House of the People and the Council of States.’
Thus sub-sections (2) and (3) of Section 4 require the Committee to submit its report to the Speaker/Chairman ‘at the conclusion of the investigation’ and the Speaker/Chairman ‘shall cause the report ….. to be laid, as soon as may be, before the House of the People and the Council of States.
Section 6 of the Act provides for the stage subsequent to submission of the report by the Committee to the Speaker/Chairman. Sub-section (1) of Section 6 lays down that if the Committee absolves the concerned Judge in its report and records a finding that the Judge is ‘not guilty of any misbehaviour ….,’ then no further steps shall be taken in either House of Parliament and ‘the motion pending in the House …. shall not be proceeded with.’ It is clear from sub-section (1) of Section 6 that a finding of ‘not guilty’ recorded by the Committee in its report terminates the process of removal of the concerned Judge initiated in accordance with Section 3(1) of the Act, that part of the process being statutory, and the parliamentary part of the process initiated on the Committee’s report being laid before the House by the Speaker/Chairman in accordance with Section 4(3) does not commence. This is clear from the expressions ‘then no further steps shall be taken in either House …….. and the motion pending in the House …… shall not be proceeded with’ in Section 6(1) of the Act. In Sub-Committee on Judicial Accountability, it was held as under :-
“…… If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4).”
(Para 74 at p.744)
Sub-sections (2) and (3) of Section 6 provide for the situation where the report of the Committee contains a finding that the Judge is ‘guilty’ of any misbehaviour or suffers from any incapacity. Sub-section (2) prescribes that the motion admitted by the Speaker/Chairman under Section 3(1) of the Act shall then be taken up for consideration by the House together with the report of the Committee. It is in this situation and in this manner that the parliamentary part of the process of removal of a Judge commences requiring the House to consider the motion for removal of the Judge.
Sub-section (3) lays down that if the motion is adopted by each House of Parliament in accordance with provisions of clause (4) of Article 124, then the misbehaviour or incapacity of the Judge shall be deemed to have been proved and the address praying for the removal of the Judge shall be presented to the President in the prescribed manner. Thus, commencement of the parliamentary part of the process for removal is after the end of the earlier statutory part, only in case the report of the Committee contains a finding that the Judge is ‘guilty’ of any misbehaviour or suffers from any incapacity and not otherwise. The entire process of removal is composite in nature.