Full Judgment Text
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PETITIONER:
C. RAVICHANDRAN IYER
Vs.
RESPONDENT:
JUSTICE A.M. BHATTACHARJEE & ORS.
DATE OF JUDGMENT05/09/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1995 SCC (5) 457 JT 1995 (6) 339
1995 SCALE (5)142
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
K. Ramaswamy, J.
The petitioner, a practising advocate, has initiated
the public interest litigation under Article 32 of the
Constitution seeking to issue an appropriate writ, order or
direction restraining permanently the Bar Council of
Maharashtra and Goa [BCMG], Bombay Bar Association [BBA] and
the Advocates’ Association of Western India [AAWI],
respondents 2 to 4 respectively, coercing Justice A.M.
Bhattacharjee [the 1st respondent]. Chief Justice of Bombay
High Court, to resign from the office as Judge. He also
sought an investigation by the Central Bureau of
investigation etc. [respondents 8 to 10] into the
allegations made against the 1st respondent and if the same
are found true, to direct the 5th respondent, Speaker Lok
Sabha to initiate action for his removal under Article 124
(4) and (5) read with Article 218 of the Constitution of
India and Judges (Inquiry) Act, 1968 [for short, ‘the Act’].
This Court on March 24, 1995 issued notice to respondents 2
to 4 only and rejected the prayer for interim direction to
the President of India and the Union of India [respondents 6
and 7 respectively] not to give effect to the resignation by
the 1st respondent. We have also issued notice to the
Attorney General for India and the President of the Supreme
Court Bar Association [SCBA]. The BBA filed a counter-
affidavit through its President, Sri Iqbal Mahomedali
Chagla. Though respondents 2 and 4 are represented through
counsel, they did not file any counter-affidavit. The SCBA
informed the Court that its newly elected office bearers
required time to take a decision on the stand to be taken
and we directed them to file their written submissions. Shri
F.S. Nariman, learned senior counsel appeared for the BBA
and Shri Harish N. Salve, learned senior counsel, appeared
for AAWI, the 4th respondent. The learned Attorney General
also assisted the Court. We place on record our deep
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appreciation for their valuable assistance.
The SCBA, instead of filing written submissions sent a
note with proposals to reopen the case; to issue notice to
all the Bar Associations in the country and refer the matter
to a Bench of not less than five, preferably seven, Judges
for decision after hearing them all. We do not think that it
is necessary to accede to this suggestion.
The petitioner in a well-documented petition stated and
argued with commitment that the news published in various
national newspapers do prove that respondents 2 to 4 had
pressurised the 1st respondent to resign from the office as
Judge for his alleged misbehaviour. The Constitution
provides for independence of the Judges of the higher
courts, i.e., the Supreme Court and the High Courts. It also
lays down in proviso [a] to clause (2) of Article 124; so
too in Article 217 (1) proviso (a) and Article 124 (4),
procedure for voluntary resignation by a Judge, as well as
for compulsory removal, respectively from office in the
manner prescribed therein and in accordance with the Act and
the Rules made thereunder. The acts and actions of the
respondents 2 to 4 are unknown to law, i.e., removal by
forced resignation, which is not only unconstitutional but
also deleterious to the independence of the judiciary. The
accusations against the 1st respondent without proper
investigation by an independent agency seriously damage the
image of judiciary and efficacy of judicial adjudication and
thereby undermine credibility of the judicial institution
itself. Judges are not to be judged by the Bar. Allowing
adoption of such demands by collective pressure rudely
shakes the confidence and competence of judges of integrity,
ability, moral vigour and ethical firmness, which in turn,
sadly destroys the very foundation of democratic polity.
Therefore, the pressure tactics by the Bar requires to be
nibbed in the bud. He, therefore, vehemently argued and
requested the Court to adopt such procedure which would
safeguard the independence of the judiciary and protect the
judges from pressure through unconstitutional methods to
demit the office.
Shri Chagla in his affidavit and Shri Nariman appearing
for the BBA explained the circumstances that led the BBA to
pass the resolution requesting the 1st respondent to demit
his office as a Judge in the interest of the institution. It
is stated in the affidavit that though initially he had in
his custody the documents to show that the 1st respondent
had negotiated with Mr. S.S. Musafir, Chief Executive of
Roebuck Publishing, London and the acceptance by the 1st
respondent for publication and sale abroad of a book
authored by him, viz., "Muslim Law and the Constitution" for
two years at a royalty of US$80,000 [Eighty thousand U.S.
Dollars] and an inconclusive negotiation for US$75,000
[Seventy five thousand U.S. Dollars] for overseas publishing
rights of his book "Hindu Law and the Constitution" [2nd
Edn.], he did not divulge the information but kept
confidential. From about late 1994, there was considerable
agitation amongst the members of respondents 3 and 4 that
certain persons whose names were known to all and who were
seen in the court and were being openly talked about, were
bringing influence over the 1st respondent and could
"influence the course of judgments of the former Chief
Justice of Bombay". "The names of such persons though known
are not being mentioned here since the former Chief Justice
of Bombay has resigned as Chief Justice and Judge of the
Bombay High Court". It was also rumoured that "the former
Chief Justice of Bombay has been paid a large sum of money
in foreign exchange purportedly as royalty for a book
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written by him, viz., "Muslim Law and the Constitution". The
amount of royalty appeared to be totally disproportionate to
what a publisher abroad would be willing to pay for foreign
publication of a book which might be of academic interest
within India [since the book was a dissertation of Muslim
Law in relation to the Constitution of India]. There was a
growing suspicion at the Bar that the amount might have been
paid for reasons other than the ostensible reason". He
further stated that the 1st respondent himself had discussed
with the Advocate General on February 14, 1995 impressing
upon the latter that the Chief Justice "had decided to
proceed on leave from the end of February and would resign
in April 1995". The Advocate General had conveyed it to Shri
Chagla and other members of the Bar. By then, the financial
dealings referred to above were neither known to the public
nor found mention in the press reports. Suddenly on February
19, 1995, the advocates found to their surprise a press
interview published in Times of India said to have been
given by the 1st respondent stating that "he had not
seriously checked the antecedents of the publishers and it
was possible that he had made a mistake in accepting the
offer". He was not contemplating to resign from judgship at
that stage and was merely going on medical leave for which
he had already applied for and was granted. The BCMG passed
a resolution on February 19, 1995 seeking "resignation
forthwith" of the 1st respondent. On February 21, 1995, the
BBA received a requisition for holding its General Body
meeting to discuss the financial dealings said to have been
had by the 1st respondent "for a purpose other than the
ostensible purpose thereby raising a serious doubt as to the
integrity of the Chief Justice" The meeting was scheduled to
be held at 2.15 p.m. on February 22, 1995 as per its bye-
laws. The 1st respondent appears to have rung up Shri Chagla
in the evening on February 21, 1995 but he was not
available. Pursuant to a contact by Shri W.Y. Yande, the
President of AAWI, at the desire of Chief Justice to meet
him, Shri Chagla and Shri Yande met the 1st respondent at
his residence at 10.00 a.m. in the presence of two
Secretaries of the 1st respondent, who stated thus to Shri
Chagla as put in his affidavit :
"...The Bar Council of Maharashtra and
Goa had already shot an arrow and that
the wound was still fresh and requested
me to ensure that he would not be hurt
any further by a resolution of the
Bombay Bar Association. The 1st
respondent informed me that he had
already agreed to resign and in fact
called for and showed me a letter dated
17th February, 1995 addressed by him to
the Honourable the Chief Justice of
India in which he proposed to go on
medical leave for a month and that at
the end of the leave or even earlier he
proposed to tender his resignation".
They had reminded the 1st respondent of the assurance
given to the Advocate General expressing his desire to
resign and he conveyed his personal inconveniences to be
encountered etc. The 1st respondent assured them that he
would "resign within a week which resignation would be
effective some 10 or 15 days thereafter and that in the
meanwhile he would not do any judicial work including
delivery of any judgment". Shri Chagla appears to have told
the 1st respondent that though he would not give an
assurance, he would request the members of the Association
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to postpone the meeting and he had seen that the meeting was
adjourned to 5.00 p.m. of March 1, 1995. On enquiry being
made on March 1, 1995 from the Principal Secretary to the
1st respondent whether the 1st respondent had tendered his
resignation, it was replied in negative which showed that
the 1st respondent had not kept his promise. Consequently,
after full discussion, for and against, an overwhelming
majority of 185 out of 207 permanent members resolved in the
meeting held on March 1, 1995 at 5.00 p.m. demanding the
resignation of the 1st respondent.
Since the 1st respondent has already resigned, the
question is whether a Bar Council or Bar Association is
entitled to pass resolution demanding a judge to resign,
what is its effect on the independence of the judiciary and
whether it is constitutionally permissible. Shri Nariman
contended that the Supreme Court and the High Court are two
independent constitutional institutions. A High Court is not
subordinate to the Supreme Court though constitutionally the
Supreme Court has the power to hear appeals from the
decisions or orders or judgments of the High Courts or any
Tribunal or quasi-judicial authority in the country. The
Judges and the Chief Justice of a High Court are not
subordinate to the Chief Justice of India. The
constitutional process of removal of a Judge as provided in
Article 124 (4) of the Constitution is only for proved
misbehaviour or incapacity. The recent impeachment
proceedings against Justice V. Ramaswami and its fall-out do
indicate that the process of impeachment is cumbersome and
the result uncertain. Unless corrective steps are taken
against judges whose conduct is perceived by the Bar to be
detrimental to the independence of the judiciary, people
would lose faith in the efficacy of judicial process. Bar
being a collective voice of the court concerned has
responsibility and owes duty to maintain independence of the
judiciary. It is its obligation to bring it to the notice of
the Judge concerned the perceived misbehaviour or incapacity
and if it is not voluntarily corrected they have to take
appropriate measures to have it corrected. Bar is not aware
of any other procedure than the one under Article 124 (4) of
the Constitution, and the Act. Therefore, the BBA, instead
of proceeding to the press, adopted democratic process to
pass the resolution, in accordance with its bye-laws, when
all attempts made by it proved abortive. The conduct of the
Judge betrayed their confidence in his voluntary
resignation. Consequently, the BBA was constrained to pass
the said resolution. Thereby it had not transgressed its
limits. Its action is in consonance with its bye-laws and in
the best tradition to maintain independence of the
judiciary. Shri Nariman also cited the instance of non-
assignment of work to four Judges of the Bombay High Court
by its former Chief Justice when some allegations of
misbehaviour were imputed to them by the Bar. He, however,
submitted that in the present case the allegations were
against the Chief Justice himself, and so, he could not have
been approached. He urged that if some guidelines could be
laid down by this Court in such cases, the same would be
welcomed.
The counsel appearing for the BCMG, who stated that he
is its member, submitted that when the Bar believes that the
Chief Justice has committed misconduct, as an elected body
it is its duty to pass a resolution after full discussion
demanding the Judge to act in defence of independence of the
judiciary by demitting his office.
Shri Salve argued that independence of the judiciary is
paramount. Judges should not be kept under pressure. Such
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procedure which would be conducive to maintain independence
of the judiciary and at the same time would nib the evil in
the bud, needs to be adopted. The tendencies of unbecoming
conduct on the part of erring Judges would betray the
confidence of the litigant public in the efficacy of the
judicial process. In the light of the previous experience,
it is for the Court to evolve a simple and effective
procedure to meet the exigencies.
The learned Attorney General contended that any
resolution passed by any Bar Association tantamounts to
scandalising the court entailing contempt of the court. It
cannot coerce the Judge to resign. The pressure brought by
the Chief Justice of India upon the Judge would be
constitutional but it should be left to the Chief Justice of
India to impress upon the erring Judge to correct his
conduct. This procedure would yield salutary effect. The
Chief Justice of India would adopt such procedure as is
appropriate to the situation. He cited the advice tendered
by Lord Chancellor of England to Lord Denning, when the
latter was involved in the controversy over his writing on
the jury trial and the composition of the black members of
the jury, to demit the office, which he did in grace.
Rule of Law and Judicial Independence - Why need to be
preserved?
The diverse contentions give rise to the question
whether any Bar Council or Bar Association has the right to
pass resolution against the conduct of a Judge perceived to
have committed misbehaviour and, if so, what is its effect
on independence of the judiciary. With a view to appreciate
the contentions in their proper perspective, it is necessary
to have at the back of our mind the importance of the
independence of the judiciary. In a democracy governed by
rule of law under written Constitution, judiciary is
sentinel on the qui vive to protect the fundamental rights
and to poise even scales of justice between the citizens and
the State or the States inter se. Rule of law and judicial
review are basic features of the Constitution. As its
integral constitutional structure, independence of the
judiciary is an essential attribute of rule of law. In S.P.
Gupta vs. Union of India [(1981) Supp. SCC 87] in paragraph
27, this Court held that if there is one principle which
runs through the entire fabric of the Constitution it is the
principle of the rule of law, and under the Constitution it
is the judiciary which is entrusted with the task of keeping
every organ of the State within the limits of the law and
thereby making the rule of law meaningful and effective.
Judicial review is one of the most potent weapons in the
armoury of law. The judiciary seeks to protect the citizen
against violation of his constitutional or legal rights or
misuse or abuse of power by the State or its officers. The
judiciary stands between the citizen and the State as a
bulwark against executive excesses and misuse or abuse of
power by the executive. It is, therefore, absolutely
essential that the judiciary must be free from executive
pressure or influence which has been secured by making
elaborate provisions in the Constitution with details. The
independence of judiciary is not limited only to the
independence from the executive pressure or influence; it is
a wider concept which takes within its sweep independence
from any other pressure and prejudices. It has many
dimensions, viz., fearlessness of other power centers,
economic or political, and freedom from prejudices acquired
and nourished by the class to which the judges belong.
Judicial individualism - whether needs protection?
Independent judiciary is, therefore, most essential
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when liberty of citizen is in danger. It then becomes the
duty of the judiciary to poise the scales of justice unmoved
by the powers (actual or perceived) undisturbed by the
clamour of the multitude. The heart of judicial independence
is judicial individualism. The judiciary is not a
disembodied abstraction. It is composed of individual men
and women who work primarily on their own. Judicial
individualism, in the language of Justice Powell of the
Supreme Court of United States in his address to the
American Bar Association, Labour Law Section on August 11,
1976, is "perhaps one of the last citadels of jealously
preserved individualism....". Justice Douglas in his
dissenting opinion in Stephen S. Chandler v. Judicial
Council of the Tenth Circuit of the United States [398 US
74:26 L.Ed. 2d 100] stated:
"No matter how strong an individual
judge’s spine, the threat of punishment
- the greatest peril to judicial
independence - would project as dark a
shadow whether cast by political
strangers or by judicial colleagues. A
federal judge must be independent of
every other judge... Neither one alone
nor any number banded together can act
as censor and place sanctions on him. It
is vital to preserve the opportunities
for judicial individualism."
He further opined that to give the administrative
officer any supervision or control over the exercise of
purely judicial function would be to destroy the very
fundamentals of the theory of government. An independent
judiciary is one of the nation’s outstanding
characteristics. Once a federal judge is confirmed by the
Senate and takes his oath, he is independent of every other
judge. He commonly works with other federal judges who are
likewise sovereign. But neither one alone nor any number
banded together can act as censor and place sanctions on
him. Under the Constitution the only leverage that can be
asserted against him is impeachment, where pursuant to a
resolution passed by the House, he is tried by the Senate,
sitting as a jury. The tradition even bars political
impeachments as evidenced by the highly partisan, but
unsuccessful, effort to oust Justice Samuel of that Court in
1805.... There is no power under the Constitution for one
group of federal judges to censor any federal judge and no
power to declare him inefficient and strip him of his power
to act as a judge. At page 139 it was further pointed out
that it is time that an end be put to these efforts of
federal judges to ride herd on other federal judges. This is
a form of ‘hazing’ having no place under the Constitution.
Federal Judges are entitled, like other people, to the full
freedom of the First Amendment. If they break a law, they
can be prosecuted. If they become corrupt or sit in cases in
which they have a personal or family stake, they can be
impeached by Congress. But I search the Constitution in vain
for any power of surveillance which other federal judges
have over those aberrations. Some judges may be displeasing
to those who walk in more measured, conservative steps. But
those idiosyncrasies can be of no possible constitutional
concern to other federal judges. It is time to put an end to
the monstrous practices that seem about to overtake us....".
In Chandler, a United States District Judge had filed a
motion for leave to file a petition for a writ of mandamus
or alternatively a writ of prohibition addressed to the
Judicial Council of the Tenth Circuit. His petition sought
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resolution of questions of first impression concerning,
inter alia, the scope and constitutionality of the powers of
the Judicial Councils under 28 USC 88 137 and 6 332. The
Judicial Council of each federal circuit is under that
statute, composed of the active circuit judges of the
circuit. Petitioner asked the Court to issue an order under
the All Writs Act telling the Council to "cease acting in
violation of its powers and in violation of Judge Chandler’s
rights as a federal judge and an American citizen". Majority
held that in essence, petitioner challenged all orders of
the Judicial Council relating to assignment of cases in the
Western District of Oklahoma and fixing conditions on the
exercise of his constitutional powers as a Judge.
Specifically, petitioner urged that the Council has usurped
the impeachment power, committed by the Constitution to the
Congress exclusively. While conceding that the invoked
statute conferred some powers on the Judicial Council,
petitioner contended that the legitimate administrative
purposes to which it may be turned, do not include stripping
a judge of his judicial functions as, he claimed, was done
there. No writ was issued.
The arch of the Constitution of India pregnant from its
Preamble, Chapter III [Fundamental Rights] and Chapter IV
[Directive Principles] is to establish an egalitarian social
order guaranteeing fundamental freedoms and to secure
justice - social, economic and political - to every citizen
through rule of law. Existing social inequalities need to be
removed and equality in fact is accorded to all people
irrespective of caste, creed, sex, religion or region
subject to protective discrimination only through rule of
law. The Judge cannot retain his earlier passive judicial
rule when he administers the law under the Constitution to
give effect to the constitutional ideals. The extraordinary
complexity of modern litigation requires him not merely to
declare the rights of citizens but also to mould the relief
warranted under given facts and circumstances and often
command the executive and other agencies to enforce and give
effect to the order, writ or direction or prohibit them to
do unconstitutional acts. In this ongoing complex of
adjudicatory process, the role of the Judge is not merely to
interpret the law but also to lay new norms of law and to
mould the law to suit the changing social and economic
scenario to make the ideals enshrined in the Constitution
meaningful and reality. Therefore, the Judge is required to
take judicial notice of the social and economic
ramification, consistent with the theory of law. Thereby,
the society demands active judicial roles which formerly
were considered exceptional but now a routine. The Judge
must act independently, if he is to perform the functions as
expected of him and he must feel secure that such action of
him will not lead to his own downfall. The independence is
not assured for the Judge but to the judged. Independence to
the Judge, therefore, would be both essential and proper.
Considered judgment of the court would guarantee the
Constitutional liberties which would thrive only in an
atmosphere of judicial independence. Every endeavour should
be made to preserve independent judiciary as a citadel of
public justice and public security to fulfil the
constitutional role assigned to the Judges.
The founding fathers of the Constitution advisedly
adopted cumbersome process of impeachment as a mode to
remove a Judge from office for only proved misbehaviour or
incapacity which implies that impeachment process is not
available for minor abrasive behaviour of a Judge. It
reinforces that independence to the Judge is of paramount
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importance to sustain, strengthen and elongate rule of law.
Parliament sparingly resorts to the mechanism of impeachment
designed under the Constitution by political process as the
extreme measure only upon a finding of proved misbehaviour
or incapacity recorded by a committee constituted under
Section 3 of the Act by way of address to the President in
the manner laid down in Article 124 (4) and (5) of the
Constitution, the Act and the Rules made thereunder.
In all common law jurisdictions, removal by way of
impeachment is the accepted norm for serious acts of
judicial misconduct committed by a Judge. Removal of a Judge
by impeachment was designed to produce as little damage as
possible to judicial independence, public confidence in the
efficacy of judicial process and to maintain authority of
courts for its effective operation.
In United States, the Judges appointed under Article
III of the American Constitution could be removed only by
impeachment by the Congress. The Congress enacted the
Judicial Councils Reform and Judicial Conduct and Disability
Act of 1980 [the 1980 Act] by which Judicial Council was
explicitly empowered to receive complaints about the
judicial conduct "prejudicial to the effective and
expeditious administration of the business of the courts, or
alleging that such a judge or magistrate is unable to
discharge all the duties of office by reason of mental or
physical disability".
Jeffrey N. Barr and Thomas E. Willging conducted
research on the administration of the 1980 Act and in their
two research volumes, they concluded that "several chief
judges view the Act as remedial legislation designed not to
punish judges but to correct aberrant behaviour and provide
opportunity for corrective action as a central feature of
the Act". From 1980 to 1992, 2388 complaints were filed. 95
per cent thereof resulted in dismissal. 1.7 per cent of the
complaints ended in either dismissal from service or
corrective action of reprimands - two of public reprimands
and one of private reprimand. Two cases were reported to
Judicial Conference by the judicial councils certifying that
the grounds might exist for impeachment.
Our Constitution permits removal of the Judge only when
the motion was carried out with requisite majority of both
the Houses of the Parliament recommending to the President
for removal. In other words, the Constitution does not
permit any action by any agency other than the initiation of
the action under Article 124(4) by the Parliament. In Sub-
Committee on Judicial Accountability etc. etc. v. Union of
India & Ors. etc. [(1991) Supp. 2 SCR, 1], this Court at
page 54 held that the removal of a Judge culminating in the
presentation of an address by different Houses of Parliament
to the President, is committed to the Parliament alone and
no initiation of any investigation is possible without the
initiative being taken by the Houses themselves. At page 71
it was further held that the constitutional scheme envisages
removal of a Judge on proved misbehaviour or incapacity and
the conduct of the Judge was prohibited to be discussed in
the Parliament by Article 121. Resultantly, discussion of
the conduct of a judge or any evaluation or inferences as to
its merit is not permissible elsewhere except during
investigation before the Inquiry Committee constituted under
the Act for this purpose.
Articles 124 (4) and 121 would thus put the nail
squarely on the projections, prosecutions or attempts by any
other forum or group of individuals or Associations,
statutory or otherwise, either to investigate or enquire
into or discuss the conduct of a Judge or the performance of
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his duties and on/off court behaviour except as per the
procedure provided under Articles 124 (4) and (5) of the
Constitution, and Act and the Rules. Thereby, equally no
other agency or authority like the C.B.I., Ministry of
Finance, the Reserve Bank of India [respondents Nos. 8 to
10] as sought for by the petitioner, would investigate into
the conduct or acts or actions of a Judge. No mandamus or
direction would be issued to the Speaker of Lok Sabha or
Chairman of Rajya Sabha to initiate action for impeachment.
It is true, as contended by the petitioner, that in K.
Veeraswami v. Union of India [(1991) 3 SCC 655], majority of
the Constitution Bench upheld the power of the police to
investigate into the disproportionate assets alleged to be
possessed by a Judge, an offence under Section 5 of the
Prevention of Corruption Act, 1947 subject to prior sanction
of the Chief Justice of India to maintain independence of
the judiciary. By interpretive process, the Court carved out
primacy to the role of the Chief Justice of India, whose
efficacy in a case like one at hand would be considered at a
later stage.
Duty of the Judge to maintain high standard of conduct. Its
judicial individualism - whether protection imperative?
Judicial office is essentially a public trust. Society
is, therefore, entitled to except that a Judge must be a man
of high integrity, honesty and required to have moral
vigour, ethical firmness and impervious to corrupt or venial
influences. He is required to keep most exacting standards
of propriety in judicial conduct. Any conduct which tends to
undermine public confidence in the integrity and
impartiality of the court would be deleterious to the
efficacy of judicial process. Society, therefore, expects
higher standards of conduct and rectitude from a Judge.
Unwritten code of conduct is writ large for judicial
officers to emulate and imbibe high moral or ethical
standards expected of a higher judicial functionary, as
wholesome standard of conduct which would generate public
confidence, accord dignity to the judicial office and
enhance public image, not only of the Judge but the court
itself. It is, therefore, a basic requirement that a Judge’s
official and personal conduct be free from impropriety; the
same must be in tune with the highest standard of propriety
and probity. The standard of conduct is higher than expected
of a layman and also higher than expected of an advocate. In
fact, even his private life must adhere to high standards of
probity and propriety, higher than those deemed acceptable
for others. Therefore, the Judge can ill-afford to seek
shelter from the fallen standard in the society.
In Krishna Swami v. Union of India & Ors. [(1992) 4 SCC
605 at 650-51], one of us (K. Ramaswamy, J). held that the
holder of office of the Judge of the Supreme Court or the
High Court should, therefore, be above the conduct of
ordinary mortals in the society. The standards of judicial
behaviour, both on and off the Bench, are normally high.
There cannot, however, be any fixed or set principles, but
an unwritten code of conduct of well-established traditions
is the guidelines for judicial conduct. The conduct that
tends to undermine the public confidence in the character,
integrity or impartiality of the Judge must be eschewed. It
is expected of him to voluntarily set forth wholesome
standards of conduct reaffirming fitness to higher
responsibilities.
To keep the stream of justice clean and pure, the Judge
must be endowed with sterling character, impeccable
integrity and upright behaviour. Erosion thereof would
undermine the efficacy of the rule of law and the working of
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the Constitution itself. The Judges of higher echelons,
therefore, should not be mere men of clay with all the
frailties and foibles, human failings and weak character
which may be found in those in other walks of life. They
should be men of fighting faith with tough fibre not
susceptible to any pressure, economic, political or any
sort. The actual as well as the apparent independence of
judiciary would be transparent only when the office holders
endow those qualities which would operate as impregnable
fortress against surreptitious attempts to undermine the
independence of the judiciary. In short, the behaviour of
the Judge is the bastion for the people to reap the fruits
of the democracy, liberty and justice and the antithesis
rocks the bottom of the rule of law.
Scope and meaning of "misbehaviour" in Article 124 (4):
Article 124 (4) of the Constitution sanctions action
for removal of a Judge on proved misbehaviour or incapacity.
The word "misbehaviour" was not advisedly defined. It is a
vague and elastic word and embraces within its sweep
different facets of conduct as opposed to good conduct. In
the Law Lexicon by P. Ramanatha Aiyar, 1987 Edn. at page
821, collected from several decisions, the meaning of the
word ‘misconduct’, is stated to be vague and relative term.
Literally, it means wrong conduct or improper conduct. It
has to be construed with reference to the subject matter and
the context wherein the term occurs having regard to the
scope of the Act or the statute under consideration. In the
context of disciplinary proceedings against Solicitor, the
word misconduct was construed as professional misconduct
extending to conduct "which shows him to be unworthy member
of the legal profession." In the context of
misrepresentation made by a pleader, who obtained
adjournment of a case on grounds to his knowledge to be
false a Full Bench of the Madras High Court in Re: A First
Grade Pleader [AIR 1931 Mad. 422 = ILR 54 Mad. 520] held
that if a legal practioner deliberately made, for the
purpose of impeding the course of justice, a statement to
the court which he believed to be untrue and thereby gained
an advantage for his client, he was guilty of gross improper
conduct and as such rendered himself liable to be dealt with
by the High Court in the exercise of its disciplinary
jurisdiction. Misconduct on the part of an arbitrator was
construed to mean that misconduct does not necessarily
comprehend or include misconduct of a fraudulent or improper
character, but it does comprehend and include action on the
part of the arbitrator which is, upon the face of it,
opposed to all rational and reasonable principles that
should govern the procedure of any person who is called upon
to decide upon questions in difference and dispute referred
to him by the parties. Misconduct in office was construed to
mean unlawful behaviour or include negligence by public
officer, by which the rights of the party have been
affected. In Krishna Swami’s case (supra), one of us, K.
Ramaswamy, J., considered the scope of ‘misbehaviour’ in
Article 124 (4) and held in paragraph 71 that "every act or
conduct or even error of judgment or negligent acts by
higher judiciary perse does not amount to misbehaviour.
Willful abuse of judicial office, Willful misconduct in the
office, corruption, lack of integrity, or any other offence
involving moral turpitude would be misbehaviour. Misconduct
implies actuation of some degree of mens rea by the doer.
Judicial finding of guilt of grave crime is misconduct.
Persistent failure to perform the judicial duties of the
Judge or Willful abuse of the office dolus malus would be
misbehaviour. Misbehaviour would extend to conduct of the
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Judge in or beyond the execution of judicial office. Even
administrative actions or omissions too need accompaniment
of mens rea."
Guarantee of tenure and its protection by the
Constitution would not, however, accord sanctuary for
corruption or grave misbehaviour. Yet every action or
omission by a judicial officer in the performance of his
duties which is not a good conduct necessarily, may not be
misbehaviour indictable by impeachment, but its insidious
effect may be pervasive and may produce deleterious effect
on the integrity and impartiality of the Judge. Every
misbehaviour in juxtaposition to good behaviour, as a
constitutional tautology, will not support impeachment but a
misbehaviour which is not a good behaviour may be improper
conduct not befitting to the standard expected of a Judge.
Threat of impeachment process itself may swerve a Judge to
fall prey to misconduct but it serves disgrace to use
impeachment process for minor offences or abrasive conduct
on the part of a Judge. The bad behaviour of one Judge has a
rippling effect on the reputation of the judiciary as a
whole. When the edifice of judiciary is built heavily on
public confidence and respect, the damage by an obstinate
Judge would rip apart the entire judicial structure built in
the Constitution.
Bad conduct or bad behaviour of a Judge, therefore,
needs correction to prevent erosion of public confidence in
the efficacy of judicial process or dignity of the
institution or credibility to the judicial office held by
the obstinate Judge. When the Judge cannot be removed by
impeachment process for such conduct but generates
widespread feeling of dissatisfaction among the general
public, the question would be who would stamp out the rot
and judge the Judge or who would impress upon the Judge
either to desist from repetition or to demit the office in
grace? Who would be the appropriate authority? Who would be
the principal mover in that behalf? The hiatus between bad
behaviour and impeachable misbehaviour needs to be filled in
to stem erosion of public confidence in the efficacy of
judicial process. Whether the Bar of that Court has any role
to play either in an attempt to correct the perceived fallen
standard or is entitled to make a demand by a resolution or
a group action to pressurize the Judge to resign his office
as a Judge? The resolution to these question involves
delicate but pragmatic approach to the questions of
constitutional law.
Role of the Bar Council or Bar Associations - whether
unconstitutional?
The Advocates Act, 1961 gave autonomy to a Bar Council
of a State or Bar Council of India and Section 6 (1)
empowers them to make such action deemed necessary to set
their house in order, to prevent fall in professional
conduct and to punish the incorrigible as not befitting to
the noble profession apart from admission of the advocates
on its roll. Section 6 (1) (c) and rules made in that
behalf, Sections 9, 35, 36, 36B and 37 enjoin it to
entertain and determine cases of misconduct against
advocates on its roll. The members of the judiciary are
drawn primarily and invariably from the Bar at different
levels. The high moral, ethical and professional standards
among the members of the Bar are pre-conditions even for
high ethical standard of the Bench. Degeneration thereof
inevitably has its eruption and tends to reflect the other
side of the coin. The Bar Council, therefore, is enjoined by
the Advocates Act to maintain high moral, ethical and
professional standards. which of late is far from
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satisfactory. Their power under the Act ends thereat and
extends no further. Article 121 of the Constitution
prohibits discussion by the members of the Parliament of the
conduct of any Judge of the Supreme Court or of High Court
in the discharge of his duties except upon a motion for
presenting an address to the President praying for the
removal of the Judge as provided under Article 124 (4) and
(5) and in the manner laid down under the Act, the Rules and
the rules of business of the Parliament consistent
therewith. By necessary implication, no other forum or fora
or platform is available for discussion of the conduct of a
Judge in the discharge of his duties as a Judge of the
Supreme Court or the High Court, much less a Bar Council or
group of practising advocates. They are prohibited to
discuss the conduct of a Judge in the discharge of his
duties or to pass any resolution in that behalf.
Section 2 (c) of the Contempt of Courts Act, 1971,
defines "criminal contempt" to mean publication whether by
words spoken or written, signs, visible representations or
otherwise of any matter or the doing of any act whatsoever
which scandalises or tends to scandalise, lower or tends to
lower the authority of any court or prejudices or interferes
or tends to interfere with the due course of any judicial
proceedings, or interferes or tends to interfere with or
obstructs or tends to obstruct the administration of justice
in any other manner.
In Halsbury’s Laws of England [4th Ed.] Volume 9 in
para 27 at page 21, it is stated that scandalising the court
would mean any act done or writing published which is
calculated to bring a court or a Judge into contempt, or to
lower his authority, or to interfere with the due course of
justice or the lawful process of the court. Scurrilous abuse
of a Judge or court, or attacks on the personal character of
a Judge, are punishable contempts. Punishment is inflicted,
not for the purpose of protecting either the court as a
whole or the individual Judges of the court from repetition
of the attack, but for protecting the public, and especially
those who either voluntarily or by compulsion are subject to
the jurisdiction of the court, from the mischief they will
incur if the authority of the tribunal is undermined or
impaired. In consequence, the court has regarded with
particular seriousness allegations of partiality or bias on
the part of a Judge or a court. Criticism of a Judge’s
conduct or of the conduct of a court even if strongly
worded, is, however, not contempt, provided that the
criticism is fair, temperate and made in good faith and is
not directed to the personal character of a Judge or to the
impartiality of a Judge or court.
In Oswald’s Contempt of Court [3rd Edn.] 1993 at page
50 it is stated that libel upon courts is made contempt "to
keep a blaze of glory around them, and to deter people from
attempting to render them contemptible in the eyes of the
public.... A libel upon a court is a reflection upon the
King, and telling the people that the administration of
justice is in week or corrupt hands, that the fountain of
justice itself is tainted, and consequently that judgments
which stream out of that fountain must be impure and
contaminated". A libel upon a Judge in his judicial capacity
is a contempt, whether it concerns what he did in court, or
what he did judicially out of it. At page 91, it is stated
that all publications which offend against the dignity of
the court, or are calculated to prejudice the course of
justice, will constitute contempt. One of the natures of
offences is scandalising the courts. In Contempt of Court
[2nd Edn.] by C.J. Millar at page 366, Lord Diplock is
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quoted from Chokolingo v. AG of Trinidaad and Tobago [(1981)
1 All ER 244 at 248], who spoke for the Judicial Committee
summarising the position thus: "‘Scandalising the court’ is
a convenient way of describing a publication which, although
it does not relate to any specific case either past or
pending or any specific Judge, is a scurrilous attack on the
judiciary as a whole, which is calculated to undermine the
authority of the courts and public confidence in the
administration of justice." In Borrie and Lowe’s Law of
Contempt [2nd Edn.] at page 226 it is stated that the
necessity for this branch of contempt lies in the idea that
without well-regulated laws a civilised community cannot
survive. It is therefore thought important to maintain the
respect and dignity of the court and its officers, whose
task it is to uphold and enforce the law, because without
such respect, public faith in the administration of justice
would be undermined and the law itself would fall into
disrepute. Even in the latest Report on Contempt of Court by
Phillimore Committee to revise the penal enforcement of
contempt, adverting to Lord Atkin’s dictum that courts are
satisfied to leave to public opinion attacks or comments
derogatory or scandalous to them, in paragraph 162, the
Committee had stated that at one stage "we considered
whether such conduct should be subject to penal sanctions at
all. It was argued that any judge who was attacked would
have the protection of the law of defamation, and that no
further protection is necessary. We have concluded, however,
that some restraints are still required, for two reasons.
First, this branch of the law of contempt is concerned with
the protection of the administration of justice, and
especially the preservation of public confidence in its
honesty and impartiality; it is only incidentally, if at
all, concerned with the personal reputations of Judges.
Moreover, some damaging attacks, for example upon an
unspecified group of judges, may not be capable of being
made the subject of libel proceedings at all. Secondly,
Judges commonly feel constrained by their position not to
take action in reply to criticism, and they have no proper
forum in which to do so such as other public figures may
have. These considerations lead us to the conclusion that
there is need for an effective remedy.....against
imputations of improper or corrupt judicial conduct." The
Contempt of Courts Act, 1971 engrafted suitable amendments
accordingly.
Freedom of expression and duty of Advocate:
It is true that freedom of speech and expression
guaranteed by Article 19 [1] (a) of the Constitution is one
of the most precious liberties in any democracy. But equally
important is the maintenance of respect for judicial
independence which alone would protect the life, liberty and
reputation of the citizen. So the nation’s interest requires
that criticism of the judiciary must be measured, strictly
rational, sober and proceed from the highest motives without
being coloured by partisan spirit or pressure tactics or
intimidatory attitude. The Court must, therefore, harmonise
constitutional values of free criticism and the need for a
fearless curial process and its presiding functionary, the
Judge. If freedom of expression subserves public interest in
reasonable measure, public justice cannot gag it or manacle
it; but if the court considered the attack on the Judge or
Judges scurrilous, offensive, intimidatory or malicious,
beyond condonable limits, the strong arm of the law must
strike a blow on him who challenges the supremacy of the
rule of the law by fouling its source and stream. The power
to punish the contemner is, therefore, granted to the court
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not because Judges need the protection but because the
citizens need an impartial and strong judiciary.
It is enough if all of us bear this in mind while
expressing opinions on courts and Judges. But the question
that still remains is when the Bar of the Court, in which
the Judge occupies the seat of office, honestly believes
that the conduct of the Judge or of the Bench fouls the
fountain of justice, or undermines or tends to undermine the
dignity expected of a Judge and the people are tending to
disbelieve the impartiality or integrity of the Judge, who
should bear the duty and responsibility to have it/them
corrected so as to restore the respect for judiciary?
In Brahma Prakash Sharma & Ors. vs. The State of Uttar
Pradesh [AIR 1954 SC 10] the Bar Association passed
resolutions and communicated to the superior authorities
that certain judicial officers were incompetent due to their
conduct in the court and High Court took action for contempt
of the court. The question was whether the members of the
Executive Committee of the Bar Association had committed
contempt of the court? This Court held that the attack on a
Judge is a wrong done to the public and if it tends to
create apprehension in the minds of the people regarding the
integrity, ability or fairness of the Judge and to deter
actual and prospective litigants from placing complete
reliance upon the court’s administration of justice, or if
it is likely to cause embarrassment in the mind of the Judge
himself in the discharge of his judicial duties, it would be
scandalising the court and be dealt with accordingly.
The threat of action on vague grounds of
dissatisfaction would create a dragnet that would inevitably
sweep into its grasp the maverick, the dissenter, the
innovator, the reformer - in one word the unpopular.
Insidious attampts pave way for removing the inconvenient.
Therefore, proper care should be taken by the Bar
Association concerned. First it should gather specific,
authentic and acceptable material which would show or tend
to show that conduct on the part of a Judge creating a
feeling in the mind of a reasonable person doubting the
honesty, integrity, impartiality or act which lowers the
dignity of the office but necessarily, is not impeachable
misbehaviour. In all fairness to the Judge, the responsible
office bearers should meet him in camera after securing
interview and apprise the Judge of the information they had
with them. If there is truth in it, there is every
possibility that the Judge would mend himself. Or to avoid
embarrassment to the Judge, the office bearers can approach
the Chief Justice of that High Court and apprise him of the
situation with material they have in their possession and
impress upon the Chief Justice to deal with the matter
appropriately.
Primacy of the Chief Justice of India
It is true that this Court has neither administrative
control over the High Court nor power on the judicial side
to enquire into the misbehaviour of a Chief Justice or Judge
of a High Court. When the Bar of the High Court concerned
reasonably and honestly doubts the conduct of the Chief
Justice of that court, necessarily the only authority under
the Constitution that could be tapped is the Chief Justice
of India, who in common parlance is known as the head of the
judiciary of the country. It is of importance to emphasise
here that impeachment is meant to be a drastic remedy and
needs to be used in serious cases. But there must exist some
other means to ensure that Judges do not abuse the trust the
society has in them. It seems to us that self-regulation by
the judiciary is the only method which can be tried and
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adopted. Chief Justice of India is the first among the
Judges. Under Articles 124(2) and 217(1), the President of
India always consults the Chief Justice of India for
appointment of the Judges in the Supreme Court and High
Courts. Under Article 222, the President transfers Judges of
High Courts in consultation with the Chief Justice of India.
In Supreme Court Advocates-on-Record Association vs. Union
of India [(1993) 4 SCC 441] it was reinforced and the Chief
Justice of India was given center stage position. The
primacy and importance of the office of the Chief Justice
was recognised judicially by this Court in Veeraswami’s case
[supra] in para 60 at page 709. This Court, while upholding
power to register case against a retired Chief Justice of
the High Court, permitted to proceed with the investigation
for the alleged offence under Section 5 of the Prevention of
Corruption Act. The Constitution Bench per majority,
however, held that the saction and approval of the Chief
Justice of India is a condition precedent to register a case
and investigate into the matter and sanction for prosecution
of the said Judge by the President after consultation with
the Chief Justice of India.
In Sub-Committee on Judicial Accountability [2nd case]
[supra] also the same primacy had been accorded to the Chief
Justice at page 72 thus:
"It would also be reasonable to assume
that the Chief Justice of India is
expected to find a desirable solution in
such a situation to avoid embarrassment
to the learned Judge and to the
Institution in a manner which is
conducive to the independence of
judiciary and should the Chief Justice
of India be of the view that in the
interests of the institution of
judiciary it is desirable for the
learned Judge to abstrain from judicial
work till the final outcome under
Article 124 (4), he would advise the
learned Judge accordingly. It is further
reasonable to assume that the concerned
learned Judge would ordinarily abide by
the advice of the Chief Justice of
India."
International Bar Association at its 19th Biennial
Conference held at New Delhi in October 1982 had adopted
minimum standards for judicial conduct. Paras 27 to 72
relate to judicial removal and discipline. Para 31 says that
"the head of the Court may legitimately have supervisory
powers to control judges on administrative matters."
In "Chilling Judicial Independence", Irving R. Kaufman,
Chief Judge, U.S. Court of Appeals for the Second Circuit
[See: Yale Law Journal [Vol.88] 1978-79 p.681 at page 712]
stated that it seems unwise to allow bureaucrats, whether
lawyers or not, to determine, even in part, the fate of
Judges. The sheer magnitude of the disciplinary engine would
be a major nuisance. Judges frequently receive hostile or
threatening correspondence from disappointed litigants.
Creation of a new disciplinary scheme would transform a
minor annoyance into a constant threat of official action.
At the very least, it would require time-consuming responses
by the Judge. Even if the Judge were not eventually
condemned, the mere invocation of the statutory provisions
might taint him with a devastating stigma. The vestment of
authority might remain but the aura of respect and
confidence so essential to the judicial function would be
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forever dissipated. He, therefore, suggested that pressure
by the peers would yield salutary effect on the erring judge
and, therefore, judicial system can better survive by
pressure of the peers instead of disciplinary actions. At
page 709 he stated: "Peer pressure is a potent tool. It
should not be underestimated because it is neither exposed
to public view nor enshrined in law".
Harry T. Edwards, Chief Judge, U.S. Courts of Appeal
for the District of Columbia Circuit [See: Michigan Law
Review (Vol.87) 765] in his article "Regulating Judicial
Misconduct and Divining "Good Behaviour" for Federal
Judges", after the 1980 Act, suggested that "I believe that
federal judges are subject to some measure of control by
peers with respect to behaviour or intimidation that
adversely affects the work of the court and that does not
rise to the level of impeachable misconduct". "I would
submit that the ideal of judicial independence is not
compromised when judges are monitored and are regulated by
their own peers". This limited system of judicial self-
regulation resists no constitutional dilemma as long as
removal power remains with Congress. "I argue that judiciary
alone should monitor this bad behaviour through a system of
self-regulation." He opined that self-regulation would
bridge the hiatus between bad behaviour and impeachable
conduct to yield salutary effect.
Bearing all the above in mind, we are of the considered
view that where the complaint relates to the Judge of the
High Court, the Chief Justice of that High Court, after
verification, and if necessary, after confidential enquiry
from his independent source, should satisfy himself about
the truth of the imputation made by the Bar Association
through its office bearers against the Judge and consult the
Chief Justice of India, where deemed necessary, by placing
all the information with him. When the Chief Justice of
India is seized of the matter, to avoid embarrassment to him
and to allow fairness in the procedure to be adopted in
furtherance thereof, the Bar should suspend all further
actions to enable the Chief Justice of India to
appropriately deal with the matter. This is necessary
because any action he may take must not only be just but
must also appear to be just to all concerned, i.e., it must
not even appear to have been taken under pressure from any
quarter. The Chief Justice of India, on receipt of the
information from the Chief Justice of the High Court, after
being satisfied about the correctness and truth touching the
conduct of the Judge, may tender such advice either directly
or may initiate such action, as is deemed necessary or
warranted under given facts and circumstances. If
circumstances permit, it may be salutary to take the Judge
into confidence before initiating action. On the decision
being taken by the Chief Justice of India, the matter should
rest at that. This procedure would not only facilitate
nibbing in the bud the conduct of a Judge leading to loss of
public confidence in the courts and sustain public faith in
the efficacy of the rule of law and respect for the
judiciary, but would also avoid needless embarrassment of
contempt proceedings against the office bearers of the Bar
Association and group libel against all concerned. The
independence of judiciary and the stream of public justice
would remain pure and unsullied. The Bar Association could
remain a useful arm of the judiciary and in the case of
sagging reputation of the particular Judge, the Bar
Association could take up the matter with the Chief Justice
of the High Court and await his response for the action
taken thereunder for a reasonable period.
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In case the allegations are against Chief Justice of a
High Court, the Bar should bring them directly to the notice
of the Chief Justice of India. On receipt of such complaint,
the Chief Justice of India would in the same way act as
stated above qua complaint against a Judge of the High
Court, and the Bar would await for a reasonable period the
response of the Chief Justice of India.
It would thus be seen that yawning gap between proved
misbehaviour and bad conduct in consistent with the high
office on the part of a non cooperating Judge/Chief Justice
of a High Court could be disciplined by self-regulation
through inhouse procedure. This inhouse procedure would fill
in the constitutional gap and would yield salutary effect.
Unfortunately, recourse to this procedure was not taken in
the case at hand, may be, because of absence of legal
sanction to such a procedure.
Since the 1st respondent has already demitted the
office, we have stated as above so that it would form a
precedent for future.
The writ petition is accordingly disposed of.