What a Judicial Inquiry Is

Article 124(5): Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).

Article 218: clauses (4) and (5) of article 124 apply in relation to a High Court as they apply to the Supreme Court, with the substitution of references.

The law made under article 124(5) is the Judges (Inquiry) Act 1968, which came into force on 1 January 1969.

And the inquiry is judicial in two senses at once, which is why the label fits. It is an inquiry into a judge; and it is conducted by a Committee of three, of whom two are judges: section 3(2), chapter 1580, requires one from among the Chief Justice and other Judges of the Supreme Court, one from among the Chief Justices of the High Courts, and one distinguished jurist.

This is the sense the label is principally about, and chapters 1550 to 1720 work it: the ground, the procedure, the two stages, the judge's protections, the cases, the in-house procedure, the criminal route and the reform debate.

Sense two: an inquiry BY a judge

Chapter 430 established the practice. A Commission of Inquiry under section 3 of the Commissions of Inquiry Act 1952 is appointed to inquire into a definite matter of public importance, and in India it is habitually headed by a serving or retired judge.

The Act does not require it. Section 3 says the Commission shall consist of one or more members appointed by the appropriate Government, and prescribes no qualification. The judicial headship is a practice, not a rule, and chapter 1730 works why it arose.

And the practice gives the expression its second meaning. When a newspaper says a matter has been referred to "a judicial inquiry", it ordinarily means a Commission under the 1952 Act headed by a judge, or a magisterial inquiry into a death in custody, chapter 1750.

So the second sense is Module I's subject seen from the judge's side, and chapters 1730 to 1760 are the bridge: why the practice arose, whether a sitting judge should do it, the everyday magisterial inquiry, and what such inquiries are worth.

The two senses set against each other

And the one similarity that matters. Chapter 470 established that a Commission's report is not enforceable proprio vigore; chapter 1660 will establish that no judge has ever been removed under article 124(4). Both senses of judicial inquiry end in a finding that somebody else must act upon, which is the theme of this entire paper.

Why the label sits in this module

It looks misplaced beside financial control, and it is not.

Chapter 1290 set out the three controls: legislative, executive and judicial. This module is about the two institutions that stand outside the executive: the auditor, who is protected as a judge is, and the judge.

And chapter 1370 made the connection explicit. The Comptroller and Auditor-General is removed "in like manner and on the like grounds as a Judge of the Supreme Court", so article 124(4) is a provision this module has already used, and chapter 1560 reads it in full for the first time.

Which gives the module its unity. Both labels are about officers whom the executive cannot remove, and about what happens when such an officer must nonetheless be held to account. The auditor's answer is the report; the judge's is the address of both Houses and, in practice, chapter 1670's in-house procedure.

A worked example

MU sets: "What do you understand by the Judicial Inquiries? Write in detail citing appropriate examples of Judicial Inquiries."

Open with the ambiguity. The expression bears two senses, and name both.

Say which the answer will treat. Since the stem asks what is understood by the expression and for examples, treat both, giving the greater part to the removal machinery.

Sense one, in detail. Article 124(4): removal only by order of the President after an address by each House supported by a majority of the total membership and two-thirds of those present and voting, in the same session, on proved misbehaviour or incapacity; article 124(5) and the Judges (Inquiry) Act 1968; the motion of 100 or 50 members; the Speaker's or Chairman's discretion; the three-member Committee; definite charges; the powers of a civil court; the report; and section 6(3), under which adoption by both Houses makes the misbehaviour deemed to have been proved.

Examples for sense one. Chapters 1650 and 1660: Justice Ramaswami, the only process to reach a finding of guilt; and the other attempts.

Sense two, in a paragraph. A Commission of Inquiry under the 1952 Act headed by a judge; the practice and its justification; and the magisterial inquiry into a custodial death.

Examples for sense two. Chapter 500's great Indian Commissions, each headed by a judge.

Close with what both senses share. A finding that somebody else must act upon, and in the first sense nobody ever has.

What beginners get wrong

That the label has one meaning. It has two, and MU never says which.

That an inquiry into a judge is conducted by Parliament. It is conducted by a Committee of three, two of them judges; Parliament votes afterwards.

That the Commissions of Inquiry Act requires a judge. Section 3 prescribes no qualification; the judicial headship is a practice.

That the label is misplaced in a module about financial control. Both labels concern officers the executive cannot remove, and article 124(4) is the provision by which the auditor himself is protected.

That removal has succeeded. Chapter 1660: no judge has ever been removed under article 124(4).

Quick revision

TWO SENSES.

Sense one, an inquiry INTO a judge: art 124(4) removal by order of the President after an address by each House, a majority of the total membership and two-thirds present and voting, in the same session, on proved misbehaviour or incapacity; art 124(5) empowers Parliament to regulate the procedure; art 218 applies both clauses to a High Court; and the law is the Judges (Inquiry) Act 1968, in force 1 January 1969, under which a Committee of three, being a Supreme Court Judge, a Chief Justice of a High Court and a distinguished jurist, investigates.

Sense two, an inquiry BY a judge: a Commission of Inquiry under s.3 of the 1952 Act into a definite matter of public importance, headed by a judge by practice and not by requirement; and the magisterial inquiry into a custodial death.

What both share: a finding somebody else must act upon; the Commission's report is not enforceable proprio vigore, and no judge has ever been removed.

Why the label is here: this module is about the two officers the executive cannot remove, and art 124(4) is the very provision that protects the Comptroller and Auditor-General under art 148(1).

Test yourself

1. What do you understand by "judicial inquiries"? The expression bears two senses and the syllabus resolves neither. In the first it means an inquiry into a judge: the investigation into the misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court, conducted under the Judges (Inquiry) Act 1968, which Parliament enacted under article 124(5), as a step towards removal by an order of the President under article 124(4), applied to a High Court by article 218. In the second it means an inquiry by a judge: an inquiry into a definite matter of public importance conducted by a Commission of Inquiry appointed under section 3 of the Commissions of Inquiry Act 1952, which in India is habitually headed by a serving or retired judge although that Act prescribes no qualification for a member. The first sense is the one the label is principally about, and it is doubly judicial, since the subject is a judge and the Committee that investigates consists of three persons of whom two are judges.

2. Set the two senses against each other. The subject of the first is a judge's conduct and of the second a definite matter of public importance. The first rests on articles 124(4) and (5) and 218 and on the Act of 1968, the second on the Act of 1952. The first is conducted by a Committee of three consisting of a Judge of the Supreme Court, a Chief Justice of a High Court and a distinguished jurist; the second by a Commission whose judicial headship is practice rather than law. The first is set going by a motion signed by not less than a hundred members of the House of the People or fifty of the Council of States and admitted by the Speaker or Chairman; the second by the appropriate Government, or on a resolution of the House. The first produces a finding of guilt or innocence which is then voted upon and may end in removal by the President; the second produces a report which is recommendatory and enforceable against nobody of its own force. What they share is that each ends in a finding which somebody else must act upon, and in the first sense nobody ever has, no judge having been removed under article 124(4).

3. Why does this label belong in the same module as financial control? Because both labels concern officers whom the executive cannot remove, and what is to be done when such an officer must nevertheless be held to account. The connection is explicit in the text: article 148(1) provides that the Comptroller and Auditor-General shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court, so that article 124(4), the central provision of this label, is the provision by which the officer of the previous label is protected. The auditor's accountability is discharged by a report laid before the legislature under article 151; the judge's by the address of both Houses and, in practice, by the in-house procedure. The module is accordingly about the two institutions standing outside the executive, and about the price each pays in accountability for the independence each is given.