JUDGMENT

R.M. SAHAI, J.—The petitioner, a practising advocate of this Court, has filed this petition under Article 32 of the Constitution seeking declaration that the Motion of Impeachment against Mr Justice V. Ramaswami, a sitting Judge of this Court moved in the Lok Sabha seeking to remove him from the office of Judge, should be deemed to have been carried by construing the expression, support of the majority in Article 124(4) in such a manner that any member who abstained from voting should be deemed to have supported the Motion. It was also claimed that this Court may recommend for repeal of Article 124(4) of the Constitution as it has been rendered unworkable and non-functional and that it be substituted by an appropriate provision. Reliance was placed on Halsburys Laws of England, Vol. 10 and it was urged that although the Parliament was not strictly speaking a judicial body but its jurisdiction while exercising the right of vote on an Impeachment Motion is judicial, and, therefore, the refusal of the members or their abstaining from voting was an abdication of exercise of judicial power which may be set right judicially by assuming that those who abstained from voting should be deemed to have voted in favour of the Motion. The petitioner urged that silence or acquiescence amounts to acceptance or approval, therefore, a member of Parliament who under the procedure did not cast his vote obviously was not against the Motion, and, therefore, he should be deemed to have supported it. She urged that in United States there is specific provision permitting such abstention but in absence of any such power a member of the Parliament is constitutionally obliged either to support or oppose a Motion. Once he did not oppose it he should be deemed to have supported it.

2. Article 124(4) is extracted below:

"124. (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity."

In Sub-Committee on Judicial Accountability v. Union of India {(1991) 4 SCC 699} the Constitution Bench after detailed discussions of analogous provisions in other Constitutions and practice prevalent in different countries observed at page 731 that the constitutional scheme for removal of a judge, "seeks to achieve a judicious blend of the political and judicial processes". The Bench held that the constitutional process up to the point of admission of Motion, constitution of Committee and recording of findings by the Committee were not proceedings in the Houses of Parliament. In our opinion proceedings for impeachment partake of judicial character because it is removal after inquiry and investigation. The statutory process appears to start when the Speaker exercises duty under the Judges Enquiry Act and comes to an end once the Committee appointed by the Speaker submits the report. The debate on the Motion thereafter in the Parliament, the discussion and the voting appear more to be political in nature. Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question. In Blacks Law Dictionary it is explained as, "the expression of ones will, preference, or choice, formally manifested by a member of a legislative or deliberative body, or of a constituency or a body of qualified electors, in regard to the decision to be made by the body as a whole upon any proposed measure or proceeding or in passing laws, rules or regulations, or the selection of an officer or representative". Right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well. Neutral me