The Investigation Stage and the Political Stage

Then the sentence that explains WHY the Constitution was drafted that way:

"The Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process. It is this synthesis made in our Constitutional Scheme for removal of a Judge."

Note the four words "independent of any political colour." They are the reason for the whole design. The finding of misbehaviour is made by judges under a statute so that it does not depend on who commands the House; the removal is voted by the House so that no body of three can end a judge's tenure.

The three consequences

First, the Speaker acts as a statutory authority, not as a part of the House.

"The constitutional process for removal of a Judge upto the point of admission of the motion, constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament. The Speaker is a statutory authority under the Act. Upto that point the matter cannot be said to remain outside the Court's jurisdiction."

That is the sentence a court needs. Because the Speaker acts under the Act and not as the House, the admission of the motion and the constitution of the Committee are justiciable. Chapter 1640 is a decision setting aside a member of a Committee on that footing, and chapter 1630 is the right that follows from it.

Second, article 124(5) is not article 118, so the rules of the House do not govern this field.

"Article 124(5) does not, therefore, operate in the same field as Article 118 relating to procedure and conduct of business in Parliament." And "Rules made under Article 118 have no application in this field."

The Court had to deal with an obvious objection: article 119 SAYS that a law made under it prevails over article 118 rules, and article 124(5) says no such thing. The answer was that articles 118 and 119 operate in the same field, the normal business of the House, so an express override was necessary there; articles 118 and 124(5) operate in DIFFERENT fields, so no such provision was needed. A law under article 124(5) therefore overrides the rules made under article 118 and binds both Houses, and a violation of such a law would constitute illegality and could not be immune from judicial scrutiny under article 122(1).

Read that last clause slowly, because it is the whole of chapter 1080's exception at work. Article 122(1) protects against irregularity of procedure; it does not protect illegality; and a breach of the Judges (Inquiry) Act is an illegality, not an irregularity of the House's procedure. The bar simply does not apply.

Third, article 124(4) is meaningless without a law under article 124(5).

"Prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for the lifting of the bar under Article 121 against discussing the conduct of a Judge in the Parliament. Article 124(4) really becomes meaningful only with a law made under Article 124(5). Without such a law the constitutional scheme and process for removal of a Judge remains inchoate."

So between 1950 and 1968 there was no operative removal procedure at all, and chapter 1720 shows what article 121 does when no such proof exists.

The Court's own summary of the reconciliation

"The Judges (Inquiry) Act, 1968 reflects the constitutional philosophy of both the judicial and political elements of the process of removal. The ultimate authority remains with the Parliament in the sense that even if the Committee for investigation records a finding that the Judge is guilty of the charges, it is yet open to the Parliament to decide not to present an address to the President for removal. But if the Committee records a finding that the Judge is not guilty then the political element in the process of removal has no further option. The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial independence."

That paragraph is chapter 1600's section 6 in the Court's own words, and it is the best single answer to a question on the asymmetry: a finding of guilt does not bind Parliament, a finding of innocence does.

How this differs from an American impeachment

Students reach for the word "impeachment" and it is the wrong word. Chapter 1550 said so; this chapter gives the reason.

In the United States the House of Representatives impeaches and the Senate tries. Both the accusation and the trial are legislative acts, conducted by legislators, and the Constitution there provides that the Senate shall have the sole power to try all impeachments.

In India the trial is not legislative at all. The charges are framed and the evidence is taken by two judges and a distinguished jurist under a statute, and the House votes on a finding it did not make. This is the investigation stage and the political stage, in that order, and the separation is the reason the Indian Constitution does not use the word "impeach" for a judge anywhere. Chapter 1550 noted that the only place the Constitution uses it is article 61, for the President, where the process really is legislative throughout.

The practical difference is judicial review. A United States Senate's verdict on an impeachment is not examinable by a court; an Indian Committee's proceedings up to its findings are.

A worked example

A Judge says the Speaker admitted the motion without giving him a hearing and that the Committee then framed charges he never saw. He petitions the High Court, and the Union objects that article 122(1) bars the petition.

Is the objection good? No, not as a blanket bar. The admission of the motion, the constitution of the Committee and the recording of its findings are "not, strictly, proceedings in the Houses of Parliament", and "the Speaker is a statutory authority under the Act." So the matter is not outside the Court's jurisdiction.

Does he succeed on the first complaint, the absence of a hearing before admission? No. The Court held that at the stage of admission "a Judge is not, as a matter of right, entitled to a notice", the scheme of the statute and the rules excluding such a right by necessary implication; the Speaker may hear him if the circumstances make it appropriate, but a decision to admit without a hearing does not by itself vitiate the decision.

Does he succeed on the second, charges he never saw? On the pleading, yes, because section 3(3) requires the Committee to frame definite charges and communicate them to the Judge together with the grounds, chapter 1590; a breach of that is illegality, not irregularity, and "a violation of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1)."

And if instead his complaint were that the House debated the motion for two hours when its rules require three? Barred. That is the second part, the parliamentary process, and it is a complaint of irregularity of procedure in a proceeding in Parliament, squarely within article 122(1).

What beginners get wrong

Calling the whole thing an impeachment. The investigation stage is judicial and statutory; only the address stage is parliamentary.

Thinking article 122(1) covers the Committee. It does not: up to the recording of findings the process is not, strictly, proceedings in the Houses of Parliament.

Thinking the Speaker acts for the House when he admits a motion. He is a statutory authority under the Act, and the House does not come into the picture at this stage.

Thinking article 124(5) is just another version of article 118. They operate in different fields, and a law under article 124(5) overrides article 118 rules without needing an express provision like article 119.

Thinking article 124(4) works on its own. Without a law under clause (5) the scheme remains inchoate, so there was no operative removal machinery until 1968.

Quick revision

Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699 (Constitution Bench): the entire process of removal is in two parts, the first under clause (5) from initiation to investigation and proof, covered by enacted law with Parliament's role "only legislative"; the second under clause (4) only after proof, and "the first part is entirely statutory while the second part alone is the parliamentary process."

The reason: the first part was to be "subject to judicial review independent of any political colour", and only after proof was it "intended to be a parliamentary process."

The Speaker "is a statutory authority under the Act"; admission, constitution of the Committee and the recording of findings are "not, strictly, proceedings in the Houses of Parliament" and are not outside the Court's jurisdiction.

Article 118 rules "have no application in this field"; article 118 and article 124(5) operate in different fields, so no article 119 style override was needed; a violation of a law under article 124(5) is ILLEGALITY, not irregularity, and is not immune under article 122(1).

Article 124(4) "really becomes meaningful only with a law made under Article 124(5)"; prior proof under that law is a condition precedent to lifting the article 121 bar.

The reconciliation: a finding of guilt leaves Parliament free to decide not to present an address; a finding of not guilty leaves the political element "no further option."

Test yourself

1. State the two-part scheme. 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), runs from initiation to investigation and proof of misbehaviour or incapacity and is covered by an enacted law, Parliament's role in it being only legislative as in all laws enacted by it. The second, under article 124(4), begins only after proof and is in Parliament. In the Court's words, the first part is entirely statutory while the second part alone is the parliamentary process. The purpose of the division was that the first part, and the validity of the process under it, should be subject to judicial review independent of any political colour, and that only after proof should the matter become a parliamentary process.

2. Why does the division matter for judicial review? Because article 122(1) protects proceedings in Parliament from being called in question on the ground of an alleged irregularity of procedure. If the whole removal process were a proceeding in Parliament, a judge found guilty by a Committee constituted in breach of the Act would have no remedy in any court. The Court held instead that the constitutional process up to the point of admission of the motion, constitution of the Committee and the recording of findings by the Committee is not, strictly, proceedings in the Houses of Parliament, that the Speaker is a statutory authority under the Act, and that up to that point the matter cannot be said to remain outside the Court's jurisdiction. It also held that rules made under article 118 have no application in this field, that articles 118 and 124(5) operate in different fields so that no provision on the model of article 119 was necessary, and that a violation of a law made under article 124(5) would constitute illegality and could not be immune from judicial scrutiny under article 122(1).

3. How does Indian removal differ from an American impeachment? In the United States both the accusation and the trial are legislative acts: the House impeaches and the Senate tries. In India the trial is not legislative at all. The charges are framed and the evidence taken by a Committee of two judges and a distinguished jurist under a statute, and the House votes on a finding it did not itself make. The Constitution accordingly uses the word impeachment only in article 61, for the President, where the process is legislative throughout, and never for a judge. The practical consequence is that an American Senate's verdict is not examinable in a court, whereas an Indian Committee's proceedings up to its findings are.

4. Is the Judges (Inquiry) Act consistent with the powers and privileges of the House? Yes. The Court held that the Speaker, in admitting a motion and constituting a Committee to investigate the alleged grounds of misbehaviour or incapacity, does not act as part of the House, and that the House does not come into the picture at that stage, so the Act does not abridge the powers and privileges of the House and is constitutional and intra vires. It described the Act as reflecting the constitutional philosophy of both the judicial and political elements of the process: the ultimate authority remains with Parliament, because even on a finding of guilt it may decide not to present an address, while a finding of not guilty leaves the political element with no further option. The Court called it a civilised piece of legislation reconciling the accountability of judges with the values of judicial independence.