Holding

The Supreme Court held that the voting on the impeachment motion is a political process, Parliament is sovereign in its conduct, and courts have no jurisdiction to intervene, leading to dismissal of the petition.

Summary

Capt. V. Kumar filed a writ petition under Article 32 challenging the Lok Sabha’s voting on the impeachment motion against Justice V. Ramaswami. He alleged that his nine‑page communication to the Speaker was not circulated, that an oral whip to abstain was illegal, and that the Speaker should have compelled MPs to vote, arguing the proceedings were quasi‑judicial. The Court examined the nature of impeachment proceedings, the statutory role of the Speaker, and the doctrine of parliamentary sovereignty. Relying on the earlier decision in Sub‑Committee on Judicial Accountability and the principle that parliamentary voting is a political process, the Court held that the Parliament is sovereign in conducting its business and courts cannot intervene. Consequently, the petition seeking a fresh vote was dismissed.

Issues considered

Whether the voting on a motion of impeachment of a judge in the Lok Sabha is a political process beyond judicial review
Whether the Speaker of the Lok Sabha has a statutory duty to ensure members' presence and to intervene against an oral whip
Whether a writ under Article 32 can be issued to direct the Parliament to repeat the voting process
What is the nature of impeachment proceedings under the Judges (Inquiry) Act and Article 124(5) – statutory or parliamentary

Legislation cited

Constitution of Indias. Article 105, s. Article 124(5), s. Article 32
Judges (Inquiry) Act, 1968s. 3(2), s. 6

Subjects

impeachmentparliamentary sovereigntyjudicial reviewArticle 32Speaker of Lok Sabhapolitical processJudges (Inquiry) Actoral whipquasi-judicial

Judgment

CAPT. VIRENDRA KUMAR, ADV. A
v.
SH. SHIV RAJ PATIL, SPEAKER LOK SABHA

JULY 29, 1993

(M.N.VENKATACHALIAH, CJ. AND S. MOHAN, J.] B

Constitution of India, 1950: Articles 32, 105, 124(5)-Motion of Im-
peachment-Voting in Parliament-Nature of Process-Held: Political-Par-
liament sovereign in the conduct of its business.

This Writ Petition related to the motion ofimpeachmt11t of Judge of C
this Court. The Petitioner contended that he served on the Speaker of Lok
Sabha, a commnnication addressed to the members of a parliament and
had this communication been circulated, the MPs would have refused to
obey the last minute oral whip issued by certain political parties to abstain ·
from voting. The petitioner also contended that since the proceedings D
before Parliament are quasi judicial in nature, the Speaker of the Lok
. Sabha ought to have intervened and ordered the MPs to be present in the
House and vote, and that the Speaker failed in his duty. The petitioner
therefore urged that the voting process be repeated afresh, after circulat·
ing his commlmication to the MPs. · ·
E
Dismissing the Writ Petition, this Court

HELD: 1. At the stage ofvoting on the motion, the process is political.
The Parliament is sovereign with respect to conduct of its business. This
Court cannot have any say in that political process. If, therefore, members
had chosen to be absent, it entirely depends upon their will. [448-G] F
Sub-Committee on Judicial Accountability v. Union of India & 010-.,
[1991] 4 sec 699; followed.

TRS Allan, "The limits of Partiamenta1y Sovereignty" (1985) Public
Law 614; relied on. G

Taj Kiran v. Sanjiva Reddy, AIR (1970) SC 1573; referred to.

ORIGINAL JURISDICTION : Writ Petition (Crl.) No. 216 of 1993.

,(l)nder Article 32 of the Constitution of India.) H
443
444 SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A Petitioner-in-person.

The Judgment of the Court was delivered by

MOHAN, J. Impelled by a desire to espouse a public cause, so the
petitioner claims, this Writ Petition has come to be preferred. The cause
B relates to the motion of impeachment of Mr. Justice V. Ramaswami, a
Judge of this Court.

Notice was given by 108 members of the Ninth Lok Sabha for
presenting an address to the President for removal of Mr. Justice V.
C Ramaswami. On March 12, 1991 the motion was admitted. The Committee
was constituted in terms of section 3(2) of the Judges (Inquiry) Act.After
the Committee rendered its finding the motion was to be taken up by the
Member of Parliament for consideration on 10th May, 1993.

The Petitioner alleges that he served on the Speaker of the Lok
D Sabha a nine page communication for circulation to the Members of the
Parliament. On 8th May, 1993 the Congress (I) publicly announced the
Members of Parliament to cast "a conscience vote" while the AIADMK
party had announced that it would abstain from voting. The petitioner
coming to know about the non-circulation of the petitioner's papers by the
E Speaker, circulated the sets of the papers to the press and the other media
so that the Members of Parliament might know about these papers and
demand it from the Speaker before casting the censcience vote. The
petitioner urges that the press did not publish and the other media did not
announce the news of the papers presented to the Speaker. The impeach-
ment proceedings were take~ up. After the learned counsel for the Judge
F concluded his arguments, the voting was to take place. The Congress party
issued an oral whip to abstain from voting. It is this abstention, which is
questioned by the petitioner in this writ petition.

The petitioner would urged had the petitioner's papers been circu-
lated, the Members of Parliament would have refused to obey the last
G minute oral whip.

The speaker's permission to allow a counsel to appear for the Judge
and argije the case'before the house was no permitted either by the Judges
(Inquiry) Act of the Constittftion. This possibly helpedfthe Members of
H Parliament to obev the last minute oral whip as there was no counsel
CAPT.V.KUMAR v. S.R.PATIL[MOHAN,J.] 445

appointed to speak on behalf of the House and no debate was allowed. A
Issuance of oral whip was illegal.

The proceedings before the Parliament are quasi judicial in nature.
Therefore, the Speaker of the Lok Sabha ought to have intervened and
ordered the Members of Parliament present in the House to vote. The
· Speaker failed in his duty because the members of Parliament had failed B
to determine the mandate on the motion of impeachment by the illegal oral
whip by Congress I and AIADMK party's earlier decision to abstain. The
Constitutional Process has been set at naught. On these allegations, the
petitioner makers the following prayers:

(i) To circulate the petitioner's papers to all the MPs and then get
c
the voting process only, repeated afresh and anew, to determine and decide
the motion to impeach Mr. Justice V. Ramaswami;

(ii) Or, call only thOse MPs who being pr~sent in the House
abstained to vote, alongwith others, who were ihen absent for One reason D
or the other but now choose to come and vote, to cast their votes. Adding
these fresh votes to those who had already voted for or against should the
result/judgment be announced;

(iii) For either of the above process taking place, the Congress (I)
alongwith AIADMK party and other vote abs\aining MPs be asked to bear E
the expenses in toto for the fresh and/or additional voting processes
proportionately as per the number of abstaining MPs of the concerned
parties to actually spell out practically the measure of austerity which was
commonly announced policy of all the political parties.
F
The petitioner appearing-in-person would reiterate the same points
in-his oral submission.

The short question that arises for consideration is as to the nature
of proceedings relating to impeachment of the Jud~e. We are relieved of
.. the necessity of deciding this question by ourselves because the matter is
concluded by an authoritative ruling by Constitution Bench of this Court.
G

In Sub-Committee on Judicial Accountability v. Union of India & Ors.,
[1991] 4 sec 699 irr relation to the very impeachment motion a contention
was urged with the d~'5olution ()'f the Lok Sabha on 13.3.91 the motion for. H
446 SUPREME COURT REPORTS [1993] SUPP. 1 S.<;:.R.

A impeachment would lapse. In that context, this Court held as to the nature
of impeachment proceedings as follows:-

"Accordingly, the scheme is that the entin; 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
B 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 par-
c liamentary process." (Para 81 @ pp 747-78)

"Similarly, use of word 'motion' to indicate the process of
investigation and proof in the Judges (Inquiry) Act, 1968 because
the allegations have to be presented to the 'Speaker' does not make.
it 'motion in the House' notwithstanding use of that expression in
D
section 6. Otherwise Section 6 would not say that no further step
is to be taken in case of a finding of 'not guilty'. It only means that
when the allegation is not proved, the Speaker need not commence
the process under clause (4) which is started only in case it is
proved. The Speaker is, therefore, a statutory authority under the
E Act chosen because the further process is parliamentary and the
authority to make such a complaint is given to Members of Par-
liament. Moreover, the enactment under Article 124(5) cannot be
a safe guide to determine the scope of Article 124(5). " (Para 91
@pp 750)
F
"Indeed, the Act reflects the constitutional philosophy of goth
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
G 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 reconcil-
ing the concept of accountability of Judges and the values of
H judicial independence." (Para 97 @ pp 751-752)
CAPT.V.KUMAR v.S.R.PATIL[MOHAN,J.j 447

T.R.S. Allan says while talking of Parliamentary Sovereignty:- A
11
No greater testimony exists to the power and resilience of
positivism in modern legal thought than the debate between con-
stitutional lawyers about the nature of parliamentary sovereignty.
At the root of almost all analyses of the nature and scope of the
B
doctrine lies an unquestioned separation of legal from political
principle. The political notion of the ultimate sovereignty of the
electorate must be distinguished from the legal doctrine of legis-
lative supremacy: 11

"Dicey gives implicit support for this view when he considers C
the distinction between legal and political sovereignty in the con-
text of conventions. He observes that, 'if Parliament be in the eye
of the law a .supreme legislature, the essence of representative
government is that the legislature should represent or give effect
to the will of the political sovereign, i.e. of the electoral body, or D
of the nation. ' His examination of a number of important constitu·
tional conventions leads him to the conclusion that they are united
in character by the possession of a single purpose - to secure that
Parliament and government are ultimately subject to the wishes of
the electorate. The right to demand a dissolution is the most
striking example, since it represents an appeal from the legal to E
the political sovereign. 'The conventions of the Constitution now
consist of customs which (whatever their historical origin) are at
the present day maintained for the sake of ensuring the supremacy
of the House of Commons, and ultimately, through the elective
House of Commons, of the nation. Our modern code of constitu- F
tional morality secures, though in a roundabout way, what is called
abroad the 'sovereignty of the people'. Dicey presents conventions
as a means of harmonising legal and political sovereignty, which
remain conceptually distinct." (TRS Allan, "The limits of Par-
liamentary Sovereignty" (1985) Public Law 614)
G
We may also refer to Article 105:-

"(1) Subject to the provisions of this Constitution and to the
rules and standing orders regulating the procedure of Parliament,
there shall be freedom of speech in Parliament. H
448 SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A (2) No member of Parliament shall be liable to any proceedings
in any Court in respect of anything said or any vote given by him .
in Parliament of any committee thereof, and no person shall be so
liable in respect of the publication by or under the authority of
either House of Parliament of any report, paper, votes or proceed_-
ings. (Emphasis supplied)
B
(3) .................................................. .

While construing this Article this Court observed in Tej Kiran v
Sanjiva Reddy, AIR (1970) SC 1573, as under :-
c ".............. ThB article means what it says in language which could
not be plainer. The article confers immunity inter alia in respect
of "anything said ....... in Parliament". The word "anything" is of the
widest import and is equiva1ent to 'everything'. The only limitation·
arises from the words 11 in Parliament" which means during the
D sitting of Parliament and in the course of the business of Parlia-
ment. We are concerned only with speeches in Lok Sabha. Once
it was proved that Parliament was sitting and its business was being
transacted, anything said during the course of that business was
immune from proceedings in any court. This immunity is not only
complete but is as it should be. It is of the essence of parliamentary
E
system of Government that people's representatives should be free
to express themselves without fear of legal consequences. What
they say is only subject to the discipline of the rules of Parliament,
the good sense of the members and the control of proceedings by
the Speaker. The courts have no say in the matter and should really
F have none". (p. 1574)

At the stage of voting on the motion. The· process is political. The
Parliament is sovereign with respect to conduct of its business. This Court
cannot have any say in that political process. If, therefore, members had
G chosen to be absent, it entirely depends upon their will. Accordingly, we
conclude that the prayers of the petitioner cannot be entertained. The Writ
Petition will stand dismissed.

G.N. Petition dismissed.