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REGISTERED No. D. 221

The Gazette of India

EXTRAORDINARY

PART II—Section 2

PUBLISHED BY AUTHORITY

No. 27] NEW DELHI, TUESDAY, MAY 17, 1966/VAISAKHA 27, 1888

Separate paging is given to this Part in order that it may be filed as a separate compilation.

LOK SABHA

The following report of the Joint Committee on the Bill to regulate the procedure for the investigation and proof of the mis- behaviour or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President was presented to Lok Sabha on the 17th May, 1966: —

Composition of the Committee

Shri S. V. Krishnamoorthy Rao—Chairman

MEMBERS

Lok Sabha

2.

3.

Shri N. C. Chatterjee Shri Sachindra Chaudhuri

4. Shri Homi F. Daji

5. Shri R. G. Dubey

Resigned w.e.f. 10th January, 1966.

(347)

Shri Hari Vishnu Kamath Shri Harekrushna Mahatab Shri Shankarrao Sthantaram More Shri Gulzarilal Nanda Shri Ghanshyamlal Oza Shri Tika Ram Paliwal Sliri Raghunath Singh Shri Shivram Rango Rane Shri N. G. Ranga Shri Sham Lai Saraf Dr. L. M. Singhvi Shrimati Tarkeshwari Sinha Shri U. M. Trivedi Shri T. Abdul Wahid Shri Jaganath Rao

6. 7. @8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Rajya Sabha

21. 22. •23. 24. 25. *26. 27. 28. 29. •30.

Shrimati C, Ammanna Raja Shri Jaisukhlal Hathi Shri Akbar Ali Khan Shri R. S. Khandekar Shri Debabrata Mookerjee Shri G. S. Pathak Shri M. Ruthnaswamy Shri P. N. Sapru Shri D. L. Sen Gupta Shri K. K. Shah

DRAFTSMEN

1. Shri S. P. Sen-Varma, Secretary, Legislative Department, Ministry of Law.

2. Shri S. K. Maitra, Additional Draftsman, Ministry of Law.

REPRESENTATIVES OF THE MINISTRY

1. Shri C. P. Gupta, Joint Secretary, Ministry of Home Affairs.

2. Shri Mangli Prasad, Deputy Secretary, Ministry of Home

Affairs.

SECRETARIAT

Shri M. C. Chawla—Deputy Secretary.

©Expired on the 6th March, 1966. •Ceased to bo members of the Joint Committee consequent on their retirement from Rajya Sabha with effect from the 2nd April, 1966 but were re-appointed by Rajya Sabha on the 7th April, 1966 on their re-election to that House.

REPORT OF THE JOINT COMMITTEE

1. the Chairman of the Joint Committee to which the Bill* to regulate the procedure for the investigation and proof of the mis- behaviour or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President was referred, having been authorised to submit the Report on their behalf, present their Report, with the Bill as amended by the Committee, annexed thereto.

2. The Bill was introduced in Lok Sabha on the 14th February, 1964. The motion for consideration of the Bill was moved by Shri Jaganath Rao, the then Deputy Minister in the Ministry of Law, on the 21st September, 1965. On the 22nd September, 1965, Shri Jaganath Rao moved a motion for reference of the Bill to a Joint Committee which was adopted on the same day.

3. Rajya Sabha discussed the motion on the 29th and 30th Novem- ber, 1965 and concurred in the said motion on the 30th November, 1965.

4. The message from Rajya Sabha was reported to Lok Sabha on the 2nd December, 1965.

5. The Committee held nine sittings in all.

6. The first sitting of the Committee was held on the 4th Decem- ber, 1965, to draw up their programme of work. The Committee at this sitting decided to hear evidence from associations etc., desirous of presenting their views before the Committee and to issue a press communique inviting memoranda for the purpose. The Com- mittee also decided to invite the views of the Supreme Court, all High Courts, all Bar Councils, the Indian Law Institute, the Indian Institute of Public Administration and the Institute of Constitutional and Parliamentary Studies, on the provisions of the Bill and to in- form them that they could also give oral evidence before the Com- mittee if they so desired.

7. Eighteen memoranda/representations/suggestions were re- ceived by the Committee from the Supreme Court, different High Courts/associations/individuals.

8. The second sitting of the Committee, held on the 13th January, 1966, was adjourned immediately after adopting a condolence resolu-

•Published in the Gazette of India, Extraordinary, Part II, Section a, dated the 14th February, 1964.

tion on the passing away of the late Prime Minister Lai Bahadur Shastri.

9. The Committee at their third sitting held on the 14th January, 1966, formulated their programme of hearing oral evidence of wit- nesses.

10. At their fourth to sixth sittings held on the 15th and 17th January and 14th February, 1966, respectively, the Committee heard the evidence given by four associations/individuals.

11. The Report of the Committee was to be presented by the 28th February, 1966. As this could not be done, the Committee, at their sixth sitting held on the 14th February, 1966, decided to ask for ewtewsfon Of time for presentation of their Report upto the 31st MaTch, H&66¹. Necessary motion was brought before the House and adopted on the 23rd February, 1966- At their seventh sitting hold Ml the ffth March, 1966, the Committee decided to ask for further ttrtftniion of time upto the last day of the current (Fourteenth) Session which was granted by the House on the 24th March, 1966.

12. The Committee have decided that the evidence given before them should be printed and laid on the Tables of both the Houses in. extensa.

13. The Committee considered the Bill clause-by-elause at their eighth sitting held on the 9th May, 1966.

14. The Committee considered and adopted the Report on the 13th May, 1966.

15. The observations of the Committee with regard to the prin- cipal Changes proposed in the Bill are detailed in the succeeding paragraphs.

16. Clause 1 and enacting formula.—The changes made therein are of a consequential nature.

17. Clause 2.—In view of the amendments made in clauses 3, 4 and 7, the definitions of the terms "Speaker" and "Chairman" have been inserted in the clause and for the expression "Special Tribunal", the expression "Committee" has been substituted with a view to en- suring that the Committee may not be subject to writ jurisdiction of the Supreme Court & the High Courts.

Consequential changes have accordingly been made in other clauses of the Bill.

18. Clause 3.—The Committee are of the view that to ensure and maintain the independence of the judiciary, the Executive should be excluded from every stage of the procedure for investigation of the alleged misbehaviour or incapacity of a Judge and that the initia- tion of any proceeding against a Judge should be made in Parlia- ment by a notice of a motion. The Committee also feel that no motion for presenting an address to the President praying for the removal of a Judge should be admitted unless the notice of such motion is signed in the case of a motion in the Lok Sabha, by not less than one hundred members of that House and in the case of a motion in Rajya Sabha, by not less than fifty members of that House. Further, the Committee are of the opinion that the Speaker or the Chairman or both, as the case may be, may, after consulting such persons as they think fit, and after considering such materials, as may be available, either admit or reject the motion and that if they admit the motion, then they should keep the motion pending and constitute a Committee consisting of three members, one each to be chosen from amongst the Chief Justice and other Judges of the Supreme Court, Chief Justices of the High Courts and dis- tinguished Jurists, respectively.

Sub-clauses (1) and (2) of the clause have been redrafted accord- ingly to provide for these matters and also to provide for the manner of disposal of notices of such motions when tabled in either House or in both Houses of Parliament.

The amendments made in sub-clauses (5) and (8) are conse- quential and clariflcatory in nature.

19. Clause 4.—Consequent on the amendments made in clause 3, sub-clauses (2) and (3) of the clause have been substituted to pro- vide for the submission of the report of the investigating Committee to the Speaker or the Chairman, or both, as the case may be, and its being caused to be laid before both the Houses of Parliament.

20. Clause 6.—The Committee feel that if the investigating Com- mittee exonerates the Judge, no further action should be taken on the motion. If, however, the report of the investigating Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then the motion, together with the re- port of the investigating Committee, should be taken up for considera- tion by the House or Houses in which it is pending. If the motion i3 adopted by each House in accordance with the provisions of clause

(4) of article 124 or, as the case may be, in accordance with that claure read with article 218, of the Constitution, then the mis- behaviour or incapacity of the Judge should be deemed to have been proved and an address for the removal of that Judge should be presented to the President by each House in the prescribed manner.

The clause has been substituted accordingly.

21. Clause 7.—The Committee are of the view that instead of the Central Government, a Joint Committee of Parliament, consisting of fifteen members'of whom five to be nominated by the Chairman and ten to be nominated by the Speaker, should be constituted and that Committee should have the power to make rules for carrying out the purposes of the Act. The rules so made should be published in the Gazette after their approval by the Chairman and the Speaker.

The clause has been substituted accordingly.

22. The Committee recommend that the Bill, as amended, be

passed.

NEW DELHI;

S. V. KRISHNAMOORTHY RAO, Chairman,

Joint Committee.

The 13th May, 1966.

MINUTES OF DISSENT

I

I am constrained to append this minute of dissent because in spite of certain fundamental changes on which I and some other esteemad colleagues in the Committee had insisted and which have been accepted, the Bill as it emerges from the Joint Select Committee Is a somewhat inelegant and cumbersome piece of legislation. In parti- cular, my dissociation and dissent is directed against clause 3(1) of the Bill which sets forth the procedure for notifying a motion for presenting an address to the President praying for the removal of a Judge and against clause 3(2) which provides for the constitution of a Committee which would make an investigation into the grounds on which the removal of a Judge is prayed for.

2. When the Judges (Inquiry) Bill, 1964 was discussed in the Lok Sabha, some of us had strenuously opposed clause 3 (1) of the Bill as Introduced in Lok Sabha on 14th February, 1964. Clause 3 (1) of the Bill was in the following terms:

"If the President, on receipt of a report or otherwise, Is of opinion that there are g6od grounds for making an investi- gation into the misbehaviour or incapacity of a Judge, he may constitute a Special Tribunal for the purpose of mak- ing such an investigation and forward the grounds of sucR investigation to the Special Tribunal."

Clauses 4 and 6 of the original Bill were as follows: —

"4.(1) Subject to any rules that may be made in this behalf, the Special Tribunal shall have power to regulate its own procedure in making the investigation and shall give a reasonable opportunity to the Judge of cross-examining witnesses, adducing evidence on behalf of the defence and of being heard.

(2) After the close of the investigation, the Special Tribunal shall submit its report to the President stating therein its findings on each of the charges separately with such ob- servations on the whole case as it may think fit.

(3) The President shall cause the report submitted under sub- section (2) to be laid before each House of Parliament."

"6. Each Hou.se of Parliament may take into consideration the report of the Special Tribunal in relation to the misbe- haviour or incapacity of a Judge and if the Judge is to be removed from his office on the ground of proved misbe- haviour or incapacity, it shall present an address to the President for such removal through the Speaker of the House of the People, or the Chairman of the Council of States, as the case may be."

3. The main objection to clause 3(1) and the sequence of steps adumbrated in clauses 4 and 6 of the original Bill was that it would not be in consonance with our Constitution to divest the Parliament of its powers under Article 124 and that the vesting of powers of initiating investigation and of constituting the Special Tribunal in the President (and through him in the Council of Ministers) would be repugnant to the independence of the judiciary. In repelling and rejecting the idea of executive initiative and Intervention In instituting investigation into the conduct of judges and by preserving the parliamentary power in respect of impeachment of judges, the Joint Select Committee has made a contribution of enduring signifi- cance to the institutional framework of our Constitution.

4. My regret and disappointment, however, arise from the fact that the substitute procedures embodied in the present Bill are un- gainly, inelegant and pointless and savour somewhat of a lack of confidence in the Parliament.

5. Clause 3 (1) in the present Bill requires that an impeachment motion should, in the case of a notice given in the House of the Peo- ple, be signed by one hundred members of that House. In the case of a notice given in the Council of States, the prescribed number of signatories is fifty. If I may ray so with respect, the provision Is in conception and in effect an institutional excess. It means that even a preliminary notice would necessitate a kind of a campaign among Members of Parliament, who may themselves want to hold a preli- minary investigation of their own before subscribing to such a no- tice. To secure the sponsorship of one hundred members of Lok Sabha or of fifty members of Rajya Sabha, a member, left to his own individual resources, would perhaps have to circulate memoranda and statements and other evidence. He would have to conva^s and to pamphleteer. He would have to repeat his grounds of impeach- ment from member to member, inside as well as outside Parliament House, resulting in a distasteful din of whispers and other unseemly complications. And this, most certainly will not add to the dignity of the Parliament or that of the judiciary.

6. I, for one, fail to comprehend the rationale of the proposed re- quirement of one hundred or fifty signatories (as the case may be) for a notice of motion. It puts an inordinate measure of faith in a signature campaign and does not consider the intrinsic persuasivenesi or otherwise of the allegations to be a sufficient basis. The procedure extinguishes private members' rights to raise and initiate such issues, and in that context it is alien to parliamentary procedure. More- over the requirement is plainly redundant in view of the fact that clause 3(1) itself provides that-after a notice of a motion is given,

..then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same."

1 would have thought that this power of the Speaker to admit the motion or to refuse to admit the same should suffice as a safeguard. As Shri M. N. Kaul pointed out in his illuminating testimony: "Speaker Patel put it in those early days when he laid the foundation of parliamentary procedure in India that the most fundamental power of the Speaker is to admit a motion. Nothing can come before Parliament unless the Speaker admits it. That power is final and cannot be questioned. You can remove the Speaker but you cannot question his decision whether a motion should be admitted or not. Until a Member gives notice, the Speaker has no powers, but the moment a member gives notice, all the powers of the Speaker come into play and then he has to exercise those powers with great skill and caution and for the public good." The present Bill provides both tor a specified number of sponsoring signatories and for the Speaker's final discretion to admit or to refuse to admit a motion. I personally think that the Speaker's power to admit or refuse to admit provides an adequate and satisfactory safeguard, and to seek to fortify it any further is like wearing (obsessively and pessimistically) a pair or suspenders in addition to a belt round the waist. Even if a specified number were considered a pre-requisite safeguard, the requirement of one hundred sponsoring signatories in the case of Lok Sabha and of fifty in the case of Rajya Sabha is excessive. As I have pointed out earlier, the requirement, in the proress of its operation, would be embarrassing and unseemly. Once there are a hundred (in the ease of Lok Sabha) or fifty (in the case of Rajya Sabha) sponsoring sig- natures, the exercise of the Speaker's power to admit or to refuse to admit will be vulnerable, because the considerations of the intrinsic merit of the motion and the materials on which it is based will tend to recede into the background against the not inconsiderable weight

of nearly one-fifth of the total membership of the House subscribing to a notice of a motion.

7. I may mention here that this excessive concern for providing impregnable safeguards is not justified by past experience. As Shri Kaul told the Committee, no more than three cases under Article 124 of the Constitution came to Lok Sabha in all these years, and only one motion ever succeeded in gaining admission. As one who sponsored that motion which was admitted and inscribed on the order paper, I am intimately familiar with the difficult and prolong- ed precautionary mechanics* preceding the admission of the motion by the Speaker. Every word of the motion, every syllable and comma, was carefully put in; the grounds mentioned in the motion had been closely and critically studied. Only after the Speaker was fully satisfied was the motion admitted. Describing the concatena- tion of events in that particular case, Shri Kaul observed:

". . . .One of your colleagues will be able to give all the facts; I am concerned only with the procedural aspects and what happened eo far as the Speaker is concerned. We showed all the precedents and advised him as to how the matter stood. We said that if a motion in regard to this is put on the order paper, we have to see that every word, every comma, every syllable of that motion is prima facie slfown to have a basis. Otherwise the Speaker will not put it down on the order paper, it will not see the light of day, it will not come before Parliament. I should like to cor- rect the Impression ..-.-• that the moment a Member ihootg a Notice the whole thing may be made public. There is the able screening activity by the Speaker in this matter and he looks into it personally So far as the judiciary is concerned, Parliament has been most careful, and very few notices have come; and those that have been given have been absolutely clear notices In this particular case the Member concerned was In the fortu- nate position of citing chapter and verse. Because he tried every recourse, he was in long and continuous cor- respondence with the Minister concerned, and everything he put down in his motion was authenticated by a minis- terial statement- . .. Or It was public knowledge and about which he was prepared to satisfy the Speaker."

Clearly, the apprehensions and the anxiety which are invoked or conjured to justify the battlements of an impregnable fortress in this

case are not founded in past experience. In fact Parliament has itself been a bastion of the independence of the judiciary and this is as it should be.

8. Indeed, if precaution is to be interposed between a notice by a Member and the admission of the motion by the Speaker, it could be done more appropriately by a referral of the matter to a Judiciary Committee of one or both Houses. Such a Committee could ecreen and scrutinise the grounds of a motion praying for the removal of a judge and could report to the Speaker if, prima facie, the motion is admissible. This would secure closer and more considered scrutiny than the fanfare of one hundred (in the case of Lok Sabha) or fifty signatures (in the case of Rajya Sabha). Alternatively, the requir- ed number of sponsoring signatories should be considerably reduced. I may make it clear that this second alternative meets only with my reluctant concurrence and not with my wholehearted support.

9. Regarding the constitution of the investigating Committee, I may tSte'Shri M. C. Setalvad who pointed out that in the U.K., the U.S.A., Australia and Canada] the task of investigation is entrusted either to the House as a whole or to its Committee. In this connec- tion, Shri Setalvad had this to say in his evidence before the Com- mittee: —

"The main matter is, even if the Tribunal" is to be appointed and if legislation is thought necessary for that purpose, the legislation should provide that the Tribunal should come in at the option of the House after a motion has been initiated in the House and the House considers an Investi- gation necessary. It must be the House which must primarily decide whether an investigation should take place and if so by what agency. It may be that a case may be so clear on a motion in the House, on investigation by the Speaker, that no investigation may be necessary. Or the charge may be so frivolous that the House may at once form the view that . . .. it is a frivolous charge, It need not be investigated at all. All these functions are functions of the House . . .. If it chooses to take the course of making an inquiry, again it should be open to it to choose the method of the enquiry. It may mak* an enquiry by a Committee of both the Houses or it may make the enquiry by a Committee of the whole House a" has been done in some countries or in some other manner; and if the legislature may well provide that in the event

of the House choosing to make an enquiry by a tribunal— the tribunal may consist of X, Y, Z,—fluch a provision would be an optional provision of which the House may take advantage if it so desires, but not necessarily."

10. The present Bill seeks to provide only the modality of a tri- bunal clothed in the nomenclature of a Committee. The Committee contemplated in the Bill may well be considered a tribunal or an "authority" within the meaning of Articles 226 and 227 of the Con- stitution, rendering its work subject to judicial review and supervi- sion. What is more, the Parliament is not left with any choice in the matter and the procedure of parliamentary committee has been wholly excluded. With this I am not in agreement.

11. In both these matters in respect of which I have dissented from my esteemed colleagues in the Joint Select Committee, there appears to be an imprint on the provisions of the Bill of the now defunct Burmese Constitution, which provided that a notice of such resolution should be signed by not less than one-fourth of the total membership of either Chamber of Parliament and fwt^bjgr^jth^j the charge would be investigated by a special tribunal (S. 143 of the Burmese Constitution). In the Burmese case, the special tribunal was to consist of the President or his nominee and the Speakers of the Chamber of Nationalities and the Chamber of Deputies. I feel that the Burmese analogue is neither inspiring nor instructive, and that the more highly evolved procedures of other democratic consti- tutions which have been tried and tested for centuries would have served us better.

12. Before I conclude, I would like to emphasize that I yield to none in my profound respect for our judiciary and in my concern for the preservation of its independence and its exalted status. I feel that the suggestions I have made would be far more conducive to judicial integrity and independence and to the evolution of a more consistent and harmonious framework of institutions and procedures under the Constitution.

NEW DELHI;

L. M. STNGHVI.

The l&th May, 1966

11

I agree with the dissent note of Dr. L. M. Singhvi on clause 8 of the Judges (Inquiry) Bill, 1964, for the same reasons.

NEW DELHI;

HOMI F. DAJI.

The 16th May, 1966.

m

Clause 3 (1) (a) and (b)

I do not agree with the numbers 100 and 50, respectively, men- tioned in the above sub-clauses. They are too excessive and will defeat the very purpose of the Bill. The number of members of Lok Sabha and Rajya Sabha according to me should be 50 and 25, respectively.

NEW DELHI;

R. S. KHANDEKAR.

The lGth May, 1968.

IV

The Bill, as originally introduced In the Lok Sabha in 1964, and moved for consideration in 1965 after having been in cold storage for over eighteen months, was marked by several undesirable fea- tures, ^The most Obnoxious being the power sought to be vested in the Executive to initiate an inquiry into the alleged misbehaviour or incapacity of a Judge. When, after resurrecting, or rather, defreezing the Bill, I moved that, constitutionally and otherwise important as it was, It be referred to a Select Committee, my motion was at first resisted by Government; it is however a matter for gratification that mounting pressure in the House compelled Gov- ernment to accept it, and subsequently the Minister moved a motion for reference of the Bill to a Joint Committee.

2. I am glad to state that the Committee has transformed the Bill beyond recognition, and rightly so: the Executive is no longer in the picture, except at the very last stage of the Presidential imprimatur on the address by Parliament which has now been reinvested with necessary and adequate powers in conformity with the spirit and letter of the Constitution. This metamorphosis of the Bill reinforces, once again, the plea which I have often made in the House that all Bills, other than those of a routine or minor character, should as a rule be referred to a Select or Joint Committee.

3. Nevertheless there is scope for improvement or amendment. Clause 3 provides that the notice of a motion for presenting an address to the President praying for the removal of a Judge shall be signed by not less than one hundred members of the Lok Sabha, or not less than fifty members of the Rajya Sabha. In view of this stringent stipulation which will serve to safeguard a member of the higher Judiciary, the last bastion of democracy, against any unfair proceeding or an unseemly smear-campaign in Parliament, it should be provided that the Speaker or Chairman, as the case may be, shall