In Ex parte Grossman[1]the U.S. Supreme Court observed that the language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. In Croft v. Dunphy[2], 1933 AC 156, it was held as under :
"When a power is conferred to legislate on a particular topic it is important, in determining the scope of the power, to have regard to what is ordinarily treated as embraced within that topic in legislative practice and particularly in the legislative practice of the State which has conferred the power. Thus in considering what might be appropriately and legitimately enacted in relation to "bankruptcy and insolvency" it was considered relevant to discuss the usual contents of bankruptcy statutes."
Similarly, in Wallace Brothers and Co. Ltd. v. Commissioner of Income-tax, Bombay[3]the Judicial Committee observed that where Parliament has conferred a power to legislate on a particular topic it is permissible and important in determining the scope and meaning of the power to have regard to what is ordinarily treated as embraced within that topic in the legislative practice of the United Kingdom. The object is to ascertain the general conception involved in the words in the enabling Act.
In a federal set-up, the judiciary becomes the guardian of the Constitution. The interpretation of the Constitution as a legal instrument and its obligation is the function of the Courts. It is emphatically the province and duty of the judicial department to say what the law is In interpreting the constitutional provisions concerning the judiciary and its independence the Court should adopt a construction that strengthens the foundational features and the basic structure of the Constitution. Rule of law is a basic feature of the Constitutional fabric and is an integral part of the constitutional structure. Independence of the judiciary is an essential attribute of Rule of law. In construing the Constitutional provisions, the law and procedure for removal of Judges in other countries afford a background and a comparative view. The solution must, of course, be found within our own Constitutional Scheme. But a comparative idea affords a proper perspective for the understanding and interpretation of the Constitutional Scheme[4]. The validity of law enacted by the Parliament under clause(5) of Article 124 and the stage upto conclusion of the inquiry in accordance with that law, being governed entirely by statute, would be open to judicial review.[5]. An allegation of misbehaviour or incapacity of a Judge has tobe made, investigated and found proved in accordance with the law enacted by the Parliament under Article 124 (5) without the Parliament being involved upto that stage; on the misbehaviour or incapacity of a Judge being found proved in the manner provided bythat law a motion for presenting an address to the President for removal of the Judge on that ground would be moved in each House under Article 124(4); on the motion being so moved after the proof of misbehaviour or incapacity and it being for presenting an address to the President praying for removal of the Judge, the bar on discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct of the Judge; and the further consequences would ensue depending on the outcome of the motion in a House of Parliament. If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4).
[1] Ex parte Grossman, (1925) 267 US 87, the U.S
[2] Croft v. Dunphy, 1933 AC 156
[3] Wallace Brothers and Co. Ltd. v. Commissioner of Income-tax, Bombay, AIR 1948 PC 118,
[4] Barringtons Case [1830]; Terrell v. Secretary of Statefor the Colonies and Another, [1953I 2 QB 482, referred to. Constituent Assembly Debates Vols. I to VI @ pp 899,900Vol. VIII @ pp. 243-262, referred to. Halsbury's Laws of England, 4th Ed. Vol. P 1108;Shetreet 'Judges on Trial' (1976); pp. 404-405; Rodney Brazier'Constitutional Texts' (1990) pp. 606-607; Gall 'The Canadian Legal System' (1983); pp. 184-186, 189; Lane's Commentaryon The Australian Constitution (1986) p. 373; Mclelland'Disciplining Australian Judges' (1990) 64 ALJ 388, at p.403; Henry J. Abraham.' The Judicial Process, 3rd Ed. p. 45;RobertJ. Janosik: Encyclopeadia of the American Judicial System, Vol II pp. 575 to 578; "The Impeachment of theFederal Judiciary" Wrisley Brown Harvard Law Review 1912-1913 684 at page 698; 'The Judicial Process in Comparative Perspective(Clarendon Press-Oxford 1989 at page73);(Erskine May's "The Law, Privileges, Proceeding and Usage of Parliament" (Twenty-first Edition London Butterworths 1989);M.N. Kaul and S.L. Shakdher in Practice and Procedure ofParliament", referred to.
[5] SUB-COMMITTEE ON JUDICIAL ACCOUNTABILITY ETC. ETC.Vs.UNION OF INDIA AND ORS., 1992 AIR 320, 1991 SCR Supl. (2)1
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