M. Krishna Swami v Union of India (1992)

A judge of the Supreme Court can be removed only for "proved misbehaviour or incapacity" (Article 124(4)), yet neither the Constitution nor the Judges (Inquiry) Act defines misbehaviour. This case arose out of the removal proceedings against Mr. Justice V. Ramaswami, and it produced two things students need:

1. The majority's rule on standing: relief concerning a judge facing removal must be sought by the judge himself; outsiders — even an MP or an advocate — cannot litigate it for him without making him a party, and cannot use a fresh writ petition to reopen a Constitution Bench decision.
2. K. Ramaswamy J's description of misbehaviour and of the high standard of conduct expected of judges on and off the Bench — the passage later drawn on in discussions of judicial ethics, including C. Ravichandran Iyer v Justice A.M. Bhattacharjee.

A notice of motion signed by 108 members of the Ninth Lok Sabha was given to the Speaker for the removal of Mr. Justice V. Ramaswami of the Supreme Court. The Speaker admitted it and constituted an Inquiry Committee under s. 3(2) of the Judges (Inquiry) Act 1968. In Sub-Committee on Judicial Accountability v Union of India (1991) 4 SCC 699 a Constitution Bench had earlier upheld the continuance of those proceedings.

Two writ petitions under Article 32 followed, both filed "in public interest":

• M. Krishna Swami, a member of the Tenth Lok Sabha and an advocate of Madras who had known the judge for long, sought to quash the motion, its admission and the charges framed, and alternatively to quash the Committee's proceedings for illegality of procedure.
• Raj Kanwar, an advocate of Karnal, Haryana, sought to quash the motion, its admission and the constitution of the Committee as violating Article 124(4), and claimed that the Sub-Committee judgment was itself void.

In substance both sought reconsideration of Sub-Committee on Judicial Accountability. Mr. Justice V. Ramaswami was not a party to either petition. At the hearing, counsel for Krishna Swami (Shri Kapil Sibal) was given time to consider impleading the judge and, on instructions, declined.

The majority identified two preliminary points:

1. Can these petitioners seek reconsideration of the Constitution Bench decision in Sub-Committee on Judicial Accountability?
2. Are petitions for reliefs meant for the benefit of Mr. Justice V. Ramaswami maintainable without impleading him?

The minority went further and addressed the merits, including the Speaker's role, the Committee's procedure and the meaning of "misbehaviour" in Article 124(4).

The majority (Verma J for four judges): petitions dismissed on preliminary grounds

"We have reached the conclusion that both these petitions must be dismissed on this preliminary ground and, therefore, the question of hearing these petitions further does not arise."

The judge must seek relief himself. A decision on the merits would directly affect Mr. Justice V. Ramaswami, and if adverse he could say he was not bound by it. "Anyone facing such a proceeding and wanting to challenge it has to do it himself." The Court put the general rule this way: "Ordinarily, it is the person aggrieved and directly affected who must seek the relief himself unless disabled from doing so for a good reason which permits someone else to seek the relief on his behalf." It rejected the argument that the dignity of his office prevented the judge from being a party, noting that Justice Murphy of the High Court of Australia had sued in his own name when facing removal (Murphy v Lush).

No reconsideration of the earlier decision. A.R. Antulay v R.S. Nayak did not help: there Antulay himself had challenged a decision against him. Interest of public good must guide reconsideration, and the Court did not find "any good much less public good being served in reopening those questions which are concluded by a decision of the Constitution Bench in Sub-Committee on Judicial Accountability". Since the petitioners were not parties to that decision and could not seek review, they could not claim a larger right to reopen it.

The busybody advocate. The majority was sharp about Raj Kanwar: he "appears to be a busy body who has filed the petition for no ostensible public purpose." Mere membership of the Bar gives no right to file a separate petition and insist on being heard: "It is necessary that this tendency is curbed in public interest to avoid wastage of courts' time and abuse of its process." Relying on S.P. Gupta v Union of India, the Court reiterated that public-interest standing is widened for bona fide petitioners, but relief cannot be thrust on a person who does not seek it.

Merits left open. The majority said that, having read K. Ramaswamy J's opinion, "we regret our inability to concur with him in the area of his disagreement", and reserved its opinion on the remaining questions, "preferring to follow the salutary practice of not deciding any question, much less a constitutional one, unless it is necessary to do so". Both petitions were dismissed with no costs.

The minority (K. Ramaswamy J): what "misbehaviour" means

K. Ramaswamy J said he chose "to plough my lone furrow" and dealt with the merits. On judicial character: "To keep the stream of justice clean and pure, the judge must be endowed with sterling character, impeccable integrity and upright behaviour." Judges of the higher judiciary "should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or any sort."

On the meaning of misbehaviour: "Every act or conduct or even error of judgment or negligent acts by higher judiciary per se does not amount to misbehaviour. Wilful abuse of judicial office, wilful misconduct in the office, corruption, lack of integrity, or any other offence involving moral turpitude would be misbehaviour." He added that "Misconduct implies actuation of some degree of mens rea by the doer" and that "Misbehaviour would extend to conduct of the Judge in or beyond the execution of judicial office."

On standards: "The standards of judicial behaviour both on and off the Bench are normally high." And: "Even the private life of a judge must adhere to standards of probity and propriety, acceptable to others."

He too held that the grievances about the Committee's procedure were personal to the judge — "He alone should seek and none else be permitted to assail" — but he would have allowed the petition to the extent of his declarations of law, with a request to the Committee to exclude certain adverse material placed before it by third parties. As the majority disagreed, the order of the Court was that the writ petition "is dismissed in accordance with the majority opinion."

Majority (binding): where a judge faces removal proceedings under Article 124(4) and the Judges (Inquiry) Act, a challenge to those proceedings must be brought by the judge himself or on his behalf with his acceptance; a third party — even a Member of Parliament or an advocate claiming public interest — cannot obtain relief for his benefit without impleading him, and cannot use an Article 32 petition to reopen a Constitution Bench decision that concluded the same points. Mere membership of the Bar confers no standing to maintain such a petition.

The account of "misbehaviour" — wilful abuse of office, wilful misconduct, corruption, lack of integrity or an offence involving moral turpitude, but not mere error of judgment or negligence — is from the minority opinion and is not the ratio of the Court.

• Direct question: What is "proved misbehaviour" under Article 124(4)? Discuss the standards of conduct expected of judges. Use K. Ramaswamy J's passage — and say clearly that it is a minority opinion.
• Ethics angle (Bench–Bar relations): Discuss judicial accountability and the standards of conduct expected of judges on and off the Bench. Pair with C. Ravichandran Iyer v Justice A.M. Bhattacharjee and Sub-Committee on Judicial Accountability.
• Standing / advocate's conduct: the majority's treatment of Raj Kanwar is a good illustration that an advocate's membership of the Bar does not give him a right to litigate every matter concerning judges, and that public-interest litigation must be bona fide.
• Precision marks: name the bench correctly — five judges, 4:1 — and note that the case was heard with Raj Kanwar v Union of India and decided the same day as Sarojini Ramaswami v Union of India.