C. Ravichandran
Iyer Vs. Justice A.M. Bhattacharjee & Ors [1995] INSC 463 (5 September 1995)
Ramaswamy,
K. Ramaswamy, K. Hansaria B.L. (J) K. Ramaswamy, J.
CITATION:
1995 SCC (5) 457 JT 1995 (6) 339 1995 SCALE (5)142
ACT:
HEAD NOTE:
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 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 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 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 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 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 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 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 mis behaviour 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
there under.
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 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 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 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
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 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
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 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 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
there under for a reasonable period.
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 in house
procedure. This in house 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.
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