The Investigation Stage and the Political Stage

In one line

Removal in India runs in two stages of removal, and the Supreme Court has held that the first is entirely statutory and open to judicial review while only the second is a proceeding of Parliament.

In the wording a student can write in an exam: in Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699, a Constitution Bench held that the entire process of removal is in two parts, the first under article 124(5) from initiation to investigation and proof, covered by an enacted law and with Parliament's role being only legislative, and the second under article 124(4) after proof, which alone is in Parliament; that "the first part is entirely statutory while the second part alone is the parliamentary process"; that the Speaker in admitting the motion and constituting the Committee does not act as part of the House; and that up to the recording of findings by the Committee the matter is not outside the Court's jurisdiction.

Why the question arises at all

Chapter 1550 to chapter 1600 have described a machine. A motion signed by fifty or a hundred members; a Speaker who admits or refuses; a Committee of two judges and a jurist; definite charges; evidence on oath; a report; and a vote on two special majorities.

The constitutional question is: which parts of that machine are proceedings IN PARLIAMENT?

It matters for one reason, and the reason is article 122(1). Chapter 1080 established that "the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure."

So if the whole removal process is a proceeding in Parliament, then the admission of the motion, the constitution of the Committee, its procedure and its findings are ALL beyond a court. A judge could be found guilty by a Committee constituted in breach of the Act and would have no remedy anywhere.

And if none of it is, then the House's vote itself could be examined, which would put a court above Parliament on a matter the Constitution entrusts to two special majorities.

The Court's answer was neither, and the answer is the architecture of the whole subject.

The holding: the process is in two parts

The passage to memorise:

"Accordingly, the scheme is that the entire process of removal is in two parts, the first part under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliament's role being only legislative as in all the laws enacted by it; and the second part only after proof under clause (4) is in Parliament, that process commencing only on proof in accordance with the law enacted under clause (5). Thus the first part is entirely statutory while the second part alone is the parliamentary process."