Justice Subhash B. Adi Vs. The Secretary, Karnataka Legislative Assembly and Another - Court Judgment

Excerpt:
constitution of india, 1950 article 226, article 227 judges (inquiry) act, 1968 karnataka lokayukta act, 1984 quashing of communication maintainability of petition petitioner sought to quash communication issued by first respondent and to restrain respondents from conducting any enquiry or seeking any information with regard to conduct of petitioner after motion was admitted court held right to invoke power of judicial review would be available only to concerned judge that, too, after order of removal has been passed once notice of motion is moved, and once matter has been referred by speaker to chief justice, petitioner would not be entitled to invoke writ jurisdiction until order of his removal has been passed thus, writ petition is not maintainable and it would be improper to express any opinion with regard to conduct of respondents petition dismissed. (paras 10, 15, 16) cases referred: sarojini ramaswami (mrs) v. union of india and others [(1992) 4 scc 506] sub-committee of judicial accountability v. union of india and others [air 1992 sc 320] comparative citation: 2016 (3) kantlj 571, 2016 (3) kccr 258 (sn), (prayer: this writ petition is filed under articles 226 and 227 of the constitution of india praying to quash the communication bearing no.d.o.no.klas/sec/lok/31/2015-16 dated 03.12.2015 issued by the first respondent vide annexure-'a' and etc.) 1. this case was listed today in the category of orders for dealing with five interlocutory applications, out of which, four have been filed the by the petitioner, and i.a.-4/2016, for impleadment, has been filed by mr.k.v.dhananjay, the learned counsel for petitioner. 2. but even before this court could deal with these interlocutory applications, mr.madhusudhan r. naik, the learned advocate general, has raised a preliminary objection about the maintainability of the writ petition itself before this court. therefore, before dealing with the interlocutory applications, with the consent of the learned counsel for parties, this court proceeds to deal with the preliminary objection raised by the advocate general. 3. mr.madhusudhan r. naik, the learned advocate general has relied on the case of sarojini ramaswami (mrs) v. union of india and others [(1992) 4 scc 506] in order to plead that once a proceeding is initiated for removing upa lokayukta, under the karnataka lokayukta act, 1984, the power of judicial review is no longer available. according to the learned advocate general, the procedure prescribed for removal of a judge of the supreme court, or of the high court under article 124 of the constitution of india, read with judges (inquiry) act, 1968 are mutatis mutandis to section 6 of the lokayukta act. furthermore, once a notice of motion has been submitted before the speaker of the karnataka state legislative assembly, and once the speaker has referred the matter to the hon'ble chief justice of the karnataka high court, this court does not have the power to interfere. relying on the case of sarojini ramaswami (supra) the learned advocate general has contended that the petitioner could challenge and invoke the writ jurisdiction only after an order of removal has been passed by his excellency the governor of karnataka. but, prior to reaching the said stage, the petitioner is not justified in filing the present writ petition. therefore, the writ petition should be dismissed as not maintainable before this court. secondly, the petitioner had challenged the communication dated 03.12.2015 issued by the secretary, karnataka legislative assembly, and had prayed that the respondents be restrained from conducting any enquiry or seeking any information with regard to the conduct of the petitioner after a motion was admitted on 27.11.2015. according to the learned advocate general, the impugned correspondence dated 03.12.2015 has already been withdrawn by the respondents. moreover, since the matter has already been referred by the speaker to the hon'ble chief justice, the second prayer made by the petitioner has become infructuous. therefore, according to the learned advocate general, the entire case, in fact, has become infructuous as of today. 4. on the other hand, mr. b. v. acharya, the learned senior counsel for petitioner, has relied on the case of sub-committee of judicial accountability v. union of india and others [air 1992 sc 320] in order to plead that the proceeding for removal of a judge can be divided into two parts: the first part, according to him, deals with the notice of motion submitted by the legislature and extends to the point of reference made by the speaker to the hon'ble chief justice. the second part deals with the motion for address to be made to the governor. according to the learned senior counsel, while the first part is statutory in nature, the second part is a legislative process. therefore, while the first part is amenable to judicial review, the second part is beyond the scope of judicial review. therefore, the learned senior counsel pleads that the writ petition is maintainable, and the petitioner has a right to challenge even the reference made by the speaker to the hon'ble chief justice. 5. in rejoinder, the learned advocate general submits that the case of sub-committee of judicial accountability (supra) was not only noticed by the supreme court in the case of sarojini ramaswami (supra), but was also dealt with by the hon'ble supreme court. therefore, the issue whether this court has the power to invoke writ jurisdiction to exercise the power of review would squarely be covered by the case of sarojini ramaswami (supra). 6. heard the learned counsel for parties. 7. a bare perusal of the judgment of sub-committee of judicial accountability (supra) reveals that the hon'ble supreme court had clearly opined that the scheme with regard to process of removal of a supreme court or high court judge is in two parts. "the first part under clause (5) from initiation to investigation and proof of misbehavior 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 party only after proof under clause (4) is in parliament, that process commencing only on proof in accordance with law enacted under clause (5)." thus, the first part is entirely statutory while the second part alone is the parliamentary process. the hon'ble supreme court went on to observe that "the constitution intended a clear provision for the first part covered fully by the enacted law, the validity of which and the process there under being subject to judicial review, ... and after proof it was intended to be a parliamentary process." 8. however, in the case of sarojini ramaswami (supra), in para 96, the hon'ble supreme court has observed as under: the question of the stage and the situation in which the remedy of judicial review becomes available and by whom it can be availed did not arise for consideration in the earlier case (in the case of sub-committee of judicial accountability (supra) ) and, therefore, this further question which now arises before us was not dealt with therein. the real controversy in the earlier decision was whether the entire process of removal of a judge in our constitutional scheme is parliamentary to attract the doctrine of lapse to the motion for removal of the learned judge on dissolution of the ninth lok sabha or a part thereof was statutory to which the doctrine of lapse of motions in the parliament could have not application. it was in this context that the majority in that decision took the view that the process was statutory till the parliament takes up the motion for consideration on a finding of 'guilty' being made by the inquiry committee in its report which is submitted to the parliament; and the ninth lok sabha having been dissolved before commencement of the parliamentary process, there was no question of the motion lapsing at that stage which was statutory. 9. the hon'ble supreme court went on to observe in para 97 as under: on a careful reading of the earlier decision in sub-committee on judicial accountability, we are unable to accept the submission that the only logical corollary of the earlier decision is that the judge concerned has a right to obtain a copy of the report of the inquiry committee before commencement of the parliamentary process to enable him at this stage to avail the remedy of judicial review in case the committee has recorded a finding of 'guilty' against the learned judge. we have adequately indicated how the right of the learned judge are fully protected on the construction we have made of the relevant provisions and the manner in which we have read the constitutional scheme adopted in india for the removal of a superior judge in accordance with clauses (4) and (5) of article 124. while summing up its reasoning, in para 95 of the judgment, the hon'ble supreme court has clearly held as under: the statutory part of the process, by which a finding of guilty is made by the inquiry committee, is subject to judicial review as held in sub-committee on judicial accountability but in the manner indicated herein, that is, only in the event of an order of removal being made and then at the instance of the aggrieved judge alone (emphasis added). 10. thus, having considered the decision of the hon'ble supreme court in the case of sub-committee of judicial accountability (supra)) in the case of sarojini ramaswami (supra) the hon'ble apex court has clearly held that the right to invoke power of judicial review would be available only to the concerned judge that, too, after the order of removal has been passed. therefore, once a notice of motion is moved, and once the matter has been referred by the speaker to the hon'ble chief justice, the petitioner would not be entitled to invoke the writ jurisdiction until the order of his removal has been passed. 11. the constitutional scheme also envisages that there should be checks and balance between the three wings of the state. the parliament is granted the power of checking the conduct of a judge under article 124 of the constitution of india read with judges (inquiry) act, 1968. therefore, it is in the logic of things that once the legislature is seized with the removal of a judge, the judiciary should keep its hands off. if the judiciary is permitted to interfere at every step of the proceedings pending before the legislature, the judiciary may be accused of protecting its brethren. therefore, in order to strike a fine balance between the different pillars of the state, this high court cannot exercise its power of judicial review while the matter is pending before the state legislature. therefore, in the opinion of this court, the writ petition is clearly not maintainable as during the process, this court does not have the power of judicial review as held by the hon'ble supreme court in the case of sarojini ramaswami (supra), 12. mr. b. v. acharya, the learned senior counsel for petitioner, has also prayed that this court should examine the conduct of the respondents. he had filed a transcript of the proceedings of the legislative assembly which had taken place on 27.11.2015 with regard to the motion moved by mr.tanwir set for removing the petitioner from the post of upa lokayukta. according to him, the transcript submitted by him clearly revealed that the motion was "admitted by the speaker on 27.11.2015." on the other hand, the respondents had taken a position that the transcript submitted by the petitioner was not a correct copy. for, according to the respondents, the transcript submitted by them was the corrected copy which clearly revealed that the speaker had "not admitted the motion." 13. the submission made by the learned senior counsel today was also noted by this court in its order dated 05.02.2016. by order dated 05.02.2016, this court had directed the respondent no.1, the secretary of the legislative assembly, to submit a certificate from the server which would clearly show the hash number of the document uploaded on 27.11.2015. for, this court felt that in case the server indicates that two different documents were uploaded, first on 27.11.2015 and the second document thereafter, then hash numbers of the two documents would be different. in pursuance of the said order, on 09.02.2016, the learned advocate general has submitted a certificate issued by the server before this court. 14. the learned advocate general has also pleaded that on 27.11.2015, there was not only commotions, but also slogan shouting in the house. initially, the proceedings of the house were uploaded on 02.12.2015. however, the initial uploading of the proceedings of the house always bears the superscription "uncorrected copy". thus, what was uploaded on 02.12.2015 was an "uncorrected copy". but, subsequently when it was discovered that inadvertently, it was shown that "the motion was admitted", it was duly corrected; the corrected copy was uploaded on 21.12.2015. therefore, the copy submitted by the respondents clearly indicate that the motion had not been admitted. it was duly indicated that "the speaker shall take necessary steps in accordance with the lokayukta act." moreover, the learned advocate general has profusely apologized both to this court, and to mr. b. v. acharya, the learned senior counsel, for the inconvenience caused by the fact that two different documents were submitted before this court. 15. although mr. b. v. acharya, learned senior counsel would like this court to comment on the conduct of the respondents, but the same would be a rather futile exercise. for, once this court has held that the writ petition is not maintainable, it would be improper for this court to express any opinion with regard to the conduct of the respondents. therefore, this court refrains itself from expressing any opinion on the prayer made by mr. acharya, the learned senior counsel. 16. as opined earlier, this writ petition is not maintainable. therefore, the writ petition is hereby dismissed. since the writ petition has been dismissed, no order needs to be passed on the five interlocutory applications listed before this court today.