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Contention C:
Article 124(5) pursuant to which the Judges (Inquiry) Act, 1968, is a mere enabling provi- sion. Prior 'proof of misconduct is not a condition precedent before the bar under Article 121 against the discussion of the conduct of the Judge is lifted.
Contention D:
The action of the Speaker in admitting the notice of motion without reference to the House and constituting a committee for inves- tigation without the support of the decision of the House is ultra vires Articles 100(1), 105, 121 and the rules made under Article 118 of the Constitution.

Dr. Shetreet has suggested a via-media and has favoured the establishment of a Judicial Commission for removal (but not for discipline short of removal) along the lines sug- gested by the Sub-Committee but has expressed the view that the existing process of address should also be preserved. [See: Shetreet 'Judges an Trial', (1976); p. 409]. Similar view has been expressed by Margaret Brazier. (See: Rodney Brazier 'Constitutional Texts' (1990) pp.606-607).

13. In Canada, under section 99(1) of the Constitution Act of 1867, the judges of the superior courts hold office during good behaviour, and are removable by the Governor- General on address of the Senate and House of Commons. On petition for removal submitted in 1868 and 1874 the matter was referred to a Select Committee of the House. In a third case in 1874 the judge died before any action could be taken on motion for appointment of a Select Committee. Recently in 1966-67, a motion for removal of Mr. Justice Leo Landreville of the Supreme Court of Ontario was moved and in that con- nection a Royal Commission consisting of Mr. Justice Ivan C. Rand, a retired judge of the Supreme Court of Canada was appointed under the Inquiries Act R. S. C. 1952 C. 154 to conduct an enquiry. After considering the report of the said Commission, a Joint Committee of the Houses recommended removal but the judge resigned while Parliament was prepar- ing for his removal by joint address. Thereafter, Judges Act was enacted in 1971 whereby Canadian Judicial Council has been created. The functions of the said Council as set out in s. 39(2) include making the enquiries and the investiga- tion of complaints or allegations described in s. 40. Sec- tion 40 provides that the council may conduct an enquiry to determine whether a judge of superior, district or county court should be removed from office and it may recommend to the Minister of Justice of Canada that a Judge should be removed from office. The grounds on which such a recommenda- tion can be made are set out in s. 41(2) of the Act and they are: (a) age or infirmity, Co) having been guilty of misconduct, (c) having failed in the due execution of his office, or (d) having been placed, by his conduct or otherwise, in a position incompatible with the due execution of his office. (Gall 'The Canadian Legal System' ( 1983 ); pp. 184-186).

"The concept of removal by an address of both Houses of Parliament is itself the subject of a good deal of criticism. Curiously, common criticism which are made are contradictory. One criticism is that the necessity for the involvement of the legislature ensures that the procedure will not be used and that the judges therefore have a practical immunity from removal. Removal by this means is cer- tainly extremely tare. That may be, however, because in the countries in which this proce- dure prevails, conditions are such that a judge who commits a serious act of judicial misconduct would certainly resign. That con- sideration, together with the fact that stand- ards of judicial conduct are generally very high in those countries, renders removal by the legislature a rarity. The opposite criti- cism, however, is that there is no established procedure for the trial of a judge whose removal by the legislature is sought. It is assumed that the legislature would itself institute some form of inquiry at which the judge would be able to defend himself against the accusations, but that would be a matter for the legislature in each case. There are some who fear that a parliamentary majority, encouraged by inflamed public feeling about an unpopular judicial decision, might some day act to remove a judge, without due process. It is at least questionable whether the system of removal by an address of both Houses of Parliament accords to a judge the degree of security which is required by the concept of judicial independence.

39. The other view is that clause (4) of Article 124 gives power to the Parliament to act for removal of the Judge on the ground of proved misbehaviour or incapacity in the manner prescribed if the matter is brought before it at this stage; and for reaching that stage the Parliament is required to enact a law under clause (5) regulating the procedure for that purpose. This means that making of the allegation, initiation of the proceedings, investigation and proof of the misbehaviour or incapacity of a Judge are governed entirely by the law enacted by the Parliament under clause (5) and when that stage is reached, the Parliament comes into the picture and the motion for removal of the Judge on the ground of proved misbehaviour or incapacity is moved for presentation of the address to the President in the manner prescribed. The matter not being before the Parliament prior to this stage is also indicated by Article 121 which lifts the bar on discussion in Parliament only upon a motion for presenting an address to the President as provided later in Article 124(4). The bar in Article 121 applies to discussion in Parliament but investi- gation and proof of misconduct or incapacity cannot exclude such discussion. This indicates that the machinery for investigation and proof must necessarily be outside Parlia- ment and not within it. In other words, proof which involves a discussion of the conduct of the Judge must be by a body which is outside the limitation of Article 121. The word 'proved' also denotes proof in the manner understood in our legal system i.e. as a result of a judicial process. The policy appears to be that the entire stage upto proof of misbehaviour or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it. If this be so, it is a clear pointer that the Parliament neither has any role to play till misconduct or incapacity is round proved nor has it any control over the machinery provided in the law enacted under Article 124(5). The Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbehaviour or incapacity has been proved. The Judges (inquiry) Act, 1968 enacted under Article 124(5) itself indicates that the Parliament so understood the integrated scheme of Articles 121, 124(4) and 124(5). The general scheme of the Act conforms to this view. Some ex- pressions used in the Act, particularly sections 3 and 6 to suggest that the motion is initiated in the House or is kept pending in the House during investigation can be reconciled, if this Constitutional Scheme is accepted. Those expressions appear to have been used since the authority tO entertain the complaint is 'Speaker/Chairman', the complaint is de- scribed as 'motion' and the complaint can be made only by the specified number of Members of Parliament. In substance it only means that the specified number of M.Ps. alone can make such a complaint; the complaint must be made to the 'Speaker/Chairman'; on receiving such a complaint if the Speaker/Chairman form the opinion that there is a prima facie case for investigation, he will constitute the judi- cial committee as prescribed; and if the finding reached is 'guilty' then the Speaker/Chairman commences the parliamen- tary process in accordance with Article 124(4) for removal of the Judge and the bar in Article 121 is lifted.