Justice P.D.
Dinakaran Vs. Hon'ble Judges Inquiry Committee and others
J U D G M E N T
G.S. Singhvi, J.
1.
Although,
the prayers made in this petition filed under Article 32 of the Constitution are
for quashing order dated 24.4.2011 passed by the Committee constituted by the Chairman
of the Council of States (Rajya Sabha) under Section 3(2) of the Judges
(Inquiry) Act, 1968 (for short, "the Act") and for grant of a
declaration that the proceedings conducted by the Committee on 24.4.2011 are null
and void, the tenor of the grounds on which these prayers are founded shows
that the petitioner is also aggrieved by the inclusion of respondent No.3-Shri P.P.
Rao, Senior Advocate, Supreme Court of India in the Committee under Section
3(2)(c) of the Act.
2.
Fifty
members of the Rajya Sabha submitted a notice of motion for presenting an
address to the President of India for removal of the petitioner, who was then
posted as Chief Justice of the Karnataka High Court, under Article 217 read
with Article 124(4) of the Constitution of India. The notice enumerated the
acts of misbehaviour allegedly committed by the petitioner and was accompanied
by an explanatory note and documents in support of the allegations. After the
motion was admitted, the Chairman of the Rajya Sabha (hereinafter referred to
as, "the Chairman") constituted a Committee comprising Mr. Justice
V.S. Sirpurkar, Judge, Supreme Court of India, Mr. Justice A.R. Dave, the then
Chief Justice of Andhra Pradesh High Court and respondent No.3.
3.
Immediately
after issue of notification dated 15.1.2010 under Section 3(2) of the Act, the
newspapers carried reports suggesting that there was an objection to the inclusion
of respondent No.3 in the Committee on the ground that he had given legal
opinion to the petitioner in December, 2009. On reading the newspaper reports, respondent
No.3 sent letter dated 19.1.2010 to the Chairman with the request that he may
be relieved from the Committee. Paragraph 2 of that letter reads as under: "Although,
there is no conflict of duty and interest, as I did not render any professional
service to him, there is a demand from certain quarters for my recusal which
you might have noticed in today's Hindustan Times. I am sure you will appreciate
that justice should not only be done but also seen to be done. Even though I have
no official communication as yet about my nomination, it will not be proper for
me to function as a member of the Committee in the fact of such objection. I request
you to kindly relieve me forthwith and nominate another jurist in my place and
oblige."
4.
After
due consideration, the Chairman declined to accept the request of respondent
No.3 and asked him to continue as member of the Committee. Thereupon,
respondent No.3 sent letter dated 21.1.2010 and agreed to accept the
assignment. On that very day, Convenor of the Campaign for Judicial
Accountability and Reform sent a letter to the Vice-President wherein a demand
was made in the garb of making suggestion that Mr. Justice V.S. Sirpurkar should
recuse from the Committee because he had association with the petitioner as a
Judge of the Madras High Court from 1997 to 2003. Similar suggestion-cum-demand
was made qua respondent No.3 by stating that the petitioner had consulted
respondent No.3 and the latter had advised him to get a commission of inquiry
appointed to go into the charges.
5.
On
being instructed by the Chairman, the Secretary General of the Rajya Sabha
forwarded a copy of the aforesaid letter to respondent No.3. In 4his response dated
27.1.2010, respondent No.3 detailed the background in which the petitioner had
met him on 6.12.2009 and what transpired between them. The relevant paragraphs
of that letter read as under: "I would like to place on record as to why Chief
Justice Dinakaran met me at my residence with prior appointment on Sunday, the
6th December, 2009 at 02:30 p.m. On Saturday, 28 Nov '09, there was a day-long
National Seminar organized by
The Bar Association of
India under the Presidentship of Shri F.S. Nariman to discuss the problems of
the Judiciary, in which the Hon'ble Law Minister also participated briefly in the
inaugural session. I am one of the Vice-Presidents. In the course of my speech,
I demanded that the Collegium should not proceed further with the
recommendation to bring Chief Justice P.D. Dinakaran to the Supreme Court and there
should be a public inquiry in which Chief Justice Dinkaran should clear himself
of the charges levelled against by senior members of the Bar and during the
inquiry, he should step down from his office and remain on leave. Many eminent
members of the Bar including two former Attorney Generals for India namely,
Shri Soli J. Sorabjee and Shri Ashok Desai, a former President of International
Bar Association namely Shri RKP Shankar Dass and a former President of Law Asia
namely, Shri Anil Divan, who participated in the seminar expressed the same view.
Finally, on the request
of the President of Bar Association of India, I drafted the Resolution which was
touched up by him before it was passed unanimously by the members present. The speeches
made at the seminar, including mine, were reported in the media. In the following
week, Chief Justice Dinakaran visited Delhi, presumably to meet the Chief
Justice of India, members of the Collegium and others. While in Delhi, he telephoned
to me saying that he was surprised that I too believed that he was guilty of
the charges levelled against him and he would like to meet me personally.
When the Chief Justice
of a High Court seeks appointment, it would be improper for any member of the legal
profession to refuse it. When he met me on December 06, 2009 I told him that
when 5 serious allegations had been made against him by senior members of the Bar
practicing at Chennai, Bangalore and Delhi, it was proper that there should be a
public inquiry. When he said that he was totally innocent and he could convince
me about it, I told him politely that he has to convince those who made the
allegations on some basis and that will be possible only in a public inquiry. It
was then I suggested that if he was innocent, he should himself invite an
inquiry under the Commissions of Inquiry Act, 1952 and offer to proceed on leave
during the Inquiry.
There was neither
consultation on the merits of the charges nor any opinion sought or given. He
did not seek my professional services for his case. The matter ended there. What
I told him in private when he met me at my residence was nothing but what I had
earlier demanded in public at the seminar. There is absolutely no question of conflict
of interest and duty in such a case. When the Hon'ble Chairman of Rajya Sabha,
after due consideration of my offer to quit, requested me to continue, I
accepted the request most respectfully as it is a call to public duty from no
less a person than the Vice-President of India, which I shall not shirk."
6.
On
12.5.2010, the petitioner suo moto sent a letter to the Vice-President of India
and Chairman, Rajya Sabha stating therein that through print and electronic media
he had come to know about constitution of the Committee under Section 3(2) of
the Act. The petitioner claimed that the allegations levelled against him were false
and baseless. He expressed anguish on being prevented from performing his
judicial work and prayed that the inquiry initiated against him may be completed
expeditiously and his grievance be redressed at the earliest. For the sake of
reference, letter dated 12.5.2010 is reproduced below: 6" 12th May, 2010
The Hon'ble Vice
President of Indiaand Chairman, Rajya Sabha Parliament New Delhi Your
Excellency, May I take this opportunity to present this supplication for kind
consideration of Your Excellency.2. Even though I have learnt through print and
electronic media that an impeachment motion has been moved against me under
Article 217 read with 124(4) of the Constitution of India before the Rajya
Sabha by 75 Hon'ble Members of Parliament, as on date, I have not received any official
communication whatsoever in this regard till date.3. I have also learnt through
print and electronic media that a Committee, as contemplated under Section 3(b)
of The Judges (Inquiry) Act, 1968, has been constituted by Your Excellency
consisting of Hon'ble Mr. Justice V.S. Sirpurkar, Judge, Supreme Court of India;
Hon'ble Mr. Justice A.R. Dave, the then Chief Justice, Andhra Pradesh High Court
and Mr. P.P. Rao,
Senior Advocate, Jurist,
in January, 2010, but till date I have not officially heard anything in this
connection to enable me to explain my case. Now that Mr. Justice A.R. Dave is
elevated to the Supreme Court of India, the Committee requires to be
reconstituted.4. In the meanwhile, the print and electronic media had given wild
publicity about the allegations made against me, causing irreparable damage to
me and to my family personally and to the constitutional position I am holding.
All the allegations are made with an ulterior motive to stall my elevation to
the Supreme Court, when the Hon'ble collegium of the Supreme Court recommended
my name for elevating me to Supreme Court.
It appears that
Hon'ble Rajya Sabha Members have been misled by the reports of the District Collector,
Thiruvallur, State of Tamil Nadu dated 8th, 10th and 15th October, 2009 stating
that myself and my wife have encroached 199.53 acres of lands at Kaverirajapuram,
Tiruttani Taluk, Thiruvallur District, State of Tamil Nadu. As the said reports
of the District Collector were specifically denied by me as baseless, the
matter was referred to a Committee under the Chairmanship of Major General (Dr.)
Siva Kumar, Survey of India, Department of Science and Technology, who, ultimately
on 15th February, 2010, produced a survey map to my wife, Dr. K.M. Vinodhini
Dinakaran, holding that there is no encroachment of any government/public lands
either by me or by my wife.
All the allegations leveled
against me are false and baseless. Myself and my family members are humiliated and
put into great hardship by the vested interest persons; and I have been prevented
to discharge my obligations under the constitution to perform the judicial work,
pending enquiry by the Committee. But, the enquiry is yet to commence. Your
Excellency may kindly appreciate that the enquiry initiated against me cannot
be an endless wait. Having patiently waited all these days for an opportunity
to explain my case that the allegations are baseless and there is no material and
merit whatsoever, I earnestly request Your Excellency to do the needful, so that,
my genuine grievance may kindly be redressed at the earliest and justice be
rendered to me expeditiously. With kind regards, Yours sincerely, Sd/- [P.D.
Dinakaran]" (emphasis supplied)
7.
In
the meanwhile, Mr. Justice A.R. Dave, Chief Justice of the Andhra Pradesh High Court,
was transferred to the Bombay High Court and was then elevated as Judge of this
Court and in his place Mr. Justice J.S. Khehar, Chief Justice of the
Uttarakhand High Court was included in the Committee. In September, 2010, Mr.
Justice Aftab Alam, Judge, Supreme Court of India was appointed as Presiding Officer
because Mr. Justice V.S. Sirpurkar recused from the Committee.
8.
After
about two months of the aforesaid development, the petitioner's wife, Dr.
(Mrs.) K.M. Vinodhini Dinakaran, sent letter dated 27.11.2010 to the Presiding Officer
and the members of the Committee with the request that investigation into the
allegations levelled against her husband should be got done through unbiased
officials. This request was made in the context of some inquiry having been made
by Mr. Govindswamy, Village Administrative Officer, Kaverirajapuram Village, Tiruttani
Taluk and Mr. Veeraraghavan, former Tahasildar Tiruttani. She claimed that both
the officials were in collusion with the then District Collector, Mr. Palani
Kumar IAS, who was inimical to the petitioner. She requested that the
investigating agency should not engage Mr. Govindswamy and Mr. Veeraraghavan because
they had already acted with mala fides and bias against her family.
9.
After
preliminary scrutiny of the material placed before it, which included documents
summoned from Government departments and agencies/instrumentalities of the State,
the Committee issued notice dated 16.3.2011, which was served upon the petitioner
on 23.3.2011, requiring him to appear on 9.4.2011 to answer the charges. The notice
was accompanied by a statement of charges and lists of the documents and
witnesses.
10.
Upon
receiving the notice, the petitioner submitted representation dated 8.4.2011 to
the Vice-President of India and the Chairman, Rajya Sabha with the prayer that the
order admitting notice of motion may be withdrawn, the order constituting the
Inquiry Committee be rescinded and notice issued by the Committee may be
annulled. In that representation, the petitioner, for the first time, raised an
objection against the inclusion of respondent No.3 in the Committee by alleging
that the latter had already expressed views in the matter and declared him guilty
of certain charges.
The petitioner claimed
that respondent No.3 had led a delegation of the advocates to meet the then
Chief Justice of India and was a signatory to the representation made by the senior
advocates against his elevation to the Supreme Court. The petitioner further
claimed that he felt agitated by the attitude of respondent No.3 because
earlier the said respondent had not only appreciated his work but even called upon
him to communicate his appreciation and also sent congratulatory message on his
name being cleared for elevation to the Supreme Court. The petitioner also
stated that he along with his wife and one K. Venkatasubbaraju met respondent No.3
at his residence and, during the meeting, respondent No.3 admitted that he was
misled by certain vested interest in signing the representation. Paragraphs 6,
7 and 8 of the letter written by the petitioner are reproduced below: "
Once I came to know that
Shri P.P. Rao has led the delegation against me demanding that I should not be
elevated, I was agitated by this attitude of Shri P.P. Rao. Earlier Shri P.P. Rao
had always appreciated my work on the bench and even called on me to
communicate the same. When I was a judge of the High Court of Judicature at
Madras, Shri P.P. Rao called on me and appreciated my work as Judge. He also
paid encomiums for my bold and independent approach. Soon after my name was considered
and cleared for elevation to the Supreme Court of India Shri P.P. Rao
congratulated me in writing.
Therefore, I I was aghast
when I learnt about his opposition to my elevation. Shri K. Venkatasubbaraju,
an Advocate who is a common friend of both of us spoke to Shri P.P. Rao and
arranged for a meeting between us. Accordingly, I along with Shri K.
Venkatasubbaraju accompanied by my wife called on Shri P.P. Rao at his
residence and confronted him with the newspaper reports. Shri P.P. Rao admitted
that he was misled by certain vested interests in signing the petition against
me he even went to the extent of saying that 11 he was forced to sign the petition
as an office bearer of the Association. In the light of the said explanation I
though it fit to leave the matter at that.
In the meanwhile I was
shocked to see Shri P.P. Rao's name included in the Committee constituted under
the Chairmanship of Hon'ble Mr. Justice V.S. Sirpurkar. Even before I could
react to that the very same vested interests, who are instrumental in engineering
false allegations against me, opposed the constitution of the said Committee. They
took specific objection to the inclusion of Shri P.P. Rao in the Committee
while objecting to the appointment of the Chairman. It was on such opposition
that Hon'ble Mr. Justice V.S. Sirpurkar resigned as the Chairman of the Committee.
Following suit, I expected, keeping in mind Shri P.P. Rao's standing and reputation,
that Shri P.P. Rao would also quit the Committee.
In this background, it
is clear that Shri P.P. Rao has already declared me guilty of certain charges on
the basis of which he opposed my elevation to Apex Court tooth and nail. It is a
travesty of justice that the Judges Inquiry Committee has been so constituted with
the same Shri P.P. Rao as a sitting member of the said Committee. This is
opposed to all principles of justice and rule of law. It is, in these circumstances,
this petition is presented on the following amongst the other grounds." (emphasis
supplied)
11.
On
the next day, i.e., 9.4.2011, the petitioner sent a letter to the Presiding Officer
of the Committee enclosing a copy of the representation submitted to the Chairman
and requested that decision on the same be awaited. On 20.4.2011, the
petitioner made an application to the Committee and raised several objections against
notice dated 16.3.2011 including the 12one that respondent No.3 was biased against
him. After two days, respondent No.3 sent letter dated 22.4.2011 to the
Presiding Officer of the Committee and reiterated all that he had said in
letter dated 27.1.2010 but, at the same time, respondent No.3 specifically
denied that he had pronounced upon the guilt of the petitioner.
He also denied that the
petitioner had consulted him or that any opinion was sought and given. Respondent
No.3 acknowledged that when news appeared about the petitioner's name having
been cleared for elevation to the Supreme Court, he had congratulated him vide
e-mail dated 30.8.2009, referred to letter dated 19.1.2010 addressed to the Chairman
and indicated that it was his duty to recuse from the membership of the Committee
once again. Respondent No.3 prepared a similar letter for being sent to the Chairman,
but on being advised by the Presiding Officer of the Committee, he held back
the same.
12.
After
considering the objections of the petitioner, the Committee (respondent No.3
did not take part in the proceedings) passed detailed order dated 24.4.2011,
the relevant portions of which are extracted below: "According to the applicant,
earlier when his name was recommended for appointment as a Judge of the Supreme
Court, Mr. P.P. Rao had led a delegation of lawyers to the then Chief Justice of
India to hand over a petition opposing his elevation to the Supreme Court. He
was one of the signatories to the representation handed over to the then Chief Justice
of India urging him not to elevate the applicant as a Judge of the Supreme Court.
He was one of the speakers
in a seminar organized by the Bar Council of India urging the authorities
against the elevation of the applicant as a Judge of the Supreme Court. Mr. Rao
was one of the leading personalities spearheading the campaign against his
elevation to the Supreme Court. On those allegations, the applicant states that
he does not expect a just and fair inquiry with Mr. P.P. Rao, being a member of
the Committee.Mr. P.P. Rao has the distinction that his presence on the
Committee has been, at one time or the other, objected to by both sides and
perhaps this alone, apart from anything, else is sufficient to confirm his
impartiality.It may be recalled that at the very inception of the Committee,
Shri Prashant Bhushan, on behalf of one of the groups that were agitating against
the recommendation for Justice Dinakaran's appointment as a judge of the
Supreme Court and were demanding an enquiry for his removal as a judge of the
High Court addressed a letter to the Chairman, Rajya Sabha objecting to the inclusion
of Mr. P.P. Rao on the Committee.
The objection was based
on the ground that even before the notice of motion was presented in the Rajya
Sabha, leading to the formation of the Committee, and while the demand to hold
an enquiry against the judge was still gaining ground Mr. Justice P.D.
Dinakaran had met and consulted Mr. Rao in the matter. On that occasion Mr. Rao
had made an offer to quit the Committee but his offer was not accepted by the
Chairman. As the Committee proceeded with its work, with Mr. Rao as one of its members,
there was no complaint or objection from any quarter. All the misgivings were satisfied
and the groups and organizations that might be called as the initial
whistle-blowers appear to be quite comfortable with Mr. Rao on the
Committee.Now the objection has come from the side of the Judge whose conduct
is the subject of enquiry.The earlier objection was completely misconceived and
without basis but it did not have any ulterior motive. Unfortunately the same
can not be said about the present objection.
It is clearly an
after thought and has an oblique motive. The applicant was aware that Mr. Rao is
a member of the Committee from the day one. As early as on May 12, 2010, he had
addressed a letter to the Chairman, Rajya Sabha urging him to have the
proceedings before the Committee expedited. In the letter, he mentioned the
names of each of the three members of the Committee, as it was in existence at
that time, including Mr. P.P. Rao, Senior Advocate but there is not a whisper
of protest against Mr. Rao's inclusion in the Committee. Paragraph 3 of the
letter reads as follows:- "I have also learnt through print and electronic
media that a Committee, as contemplated under Section 3(b) of [The] Judges
(Inquiry) Act, 1968, has been constituted by Your Excellency consisting of
Hon'ble Mr. Justice V.S. Sirpurkar, Judge, Supreme Count of India; Hon'ble Mr. Justice
A.R. Dave, the then Chief Justice, Andhra Pradesh High Court and Mr. P.P. Rao,
Senior Advocate, jurist, in January, 2010, but till date I have not officially heard
anything in this connection to enable me to explain my case.
Now that Mr. Justice
A.R. Dave is elevated to the Supreme Court of India, the Committee requires to
be reconstituted."Mr. Justice P.D. Dinakaran was given reply by Shri K.D.
Singh, Secretary to the Committee by his letter dated August 4, 2010. From the letter
it was evident that following Justice Dave's elevation, the Committee was re-constituted
and Justice J.S. Khehar, who at that time was Chief Justice of the Uttarakhand
High Court was brought on the Committee in his place. The letter went on to say
that the Committee consisting of Hon'ble Mr. Justice V.S. Sirpurkar, Judge, Supreme
Court of India, Hon'ble Mr. Justice J.S. Khehar, Chief Justice of Uttarakhand
High Court and Shri P.P. Rao, Senior Advocate, was examining the Notice of
Motion. Mr. Justice Dinakaran did not get back raising any objection against Mr.
Rao's presence on the Committee.
On November 27, 2010,
Dr. Mrs. K.M. Vinodhini Dinakaram, wife of Mr. Justice P.D. Dinakaran sent a
letter addressed to the three members of the Committee urging that in
connection with the enquiry her aged relatives might not be harassed and further
that the Committee should not rely upon the statements of certain persons, named
in the letter, who were inimically disposed of towards them. This letter was
sent separately to all the three members, including Mr. P.P. Rao. This letter
too, does not even suggest any reservation about the inclusion of Mr. Rao in
the Committee. The objection is raised for the first time only after a notice along
with the charges and the list of witnesses and documents in support of the
charges were served upon the Judge. The stage and the time at which the
objection is raised make it clear that the object is to somehow scuttle the enquiry
by causing delay in the Committee's proceedings." (emphasis supplied)
13.
Shri
Amarendra Sharan, learned senior counsel for the petitioner argued that inclusion
of respondent No.3 in the Committee constituted by the Chairman has the effect
of vitiating the proceedings held so far because the said respondent is biased
against the petitioner. Shri Sharan emphasized that by virtue of his active
participation in the seminar organized by the Bar Association of India on 28.11.2009,
respondent No.3 had disqualified himself from being a member of the Committee
and on being apprised of the relevant facts, the Chairman should have changed the
Committee by accepting the recusal of respondent No.3.
Learned senior counsel
argued that a fair, impartial and unbiased investigation into the allegations
levelled 16against him is an integral part of fundamental right to life
guaranteed to the petitioner under Articles 14 and 21 of the Constitution and he
cannot be deprived of that right by invoking the doctrine of waiver. In support
of his arguments, Shri Amarendra Sharan relied upon the judgments of this Court
in Maneka Gandhi v. Union of India (1978) 1 SCC 248, M.H. Hoskot v. State of Maharashtra
(1978) 3 SCC 544, Ranjit Thakur v. Union of India (1987) 4 SCC 611, Triveniben v.
State of Gujarat (1989) 1 SCC 678, R v. Bow Street Metropolitan Stipendiary
Magistrate and others, ex parte Pinochet Ugarte (No.2) (1999) 1 All ER 577 and In
re: Medicaments and Related Classes of Goods (No.2) 2001 (1) WLR 700. Learned
senior counsel extensively referred to the dissenting view expressed by K. Ramaswamy,
J. in Krishna Swami v. Union of India and others (1992) 4 SCC 605 and argued
that the propositions laid down by the learned Judge on the issues not decided by
the majority should be treated as declaration of law by this Court for the purpose
of Article 141 of the Constitution and the same is binding.
14.
Shri
U.U. Lalit, learned senior counsel appearing for respondent No.1 invited the Court's
attention to letter dated 12.5.2010 written by the petitioner to the
Vice-President and Chairman of the Rajya Sabha to show that even before receiving
official communication, the petitioner had 17become aware of the fact that respondent
No.3 was a member of the Committee constituted under Section 3(2) of the Act. Shri
Lalit then argued that the Court should not entertain objection to the
inclusion of respondent No.3 in the Committee on the ground that he is biased
against the petitioner because the latter did not raise any objection in that
regard till the receipt of notice dated 16.3.2011, despite the fact that he
knew that respondent No.3 had participated in the seminar organized on 28.11.2009,
gave a speech opposing his elevation to this Court and also drafted a resolution
to that effect.
Learned senior
counsel then submitted that after meeting respondent No.3 on 6.12.2009 at the
latter's residence, the petitioner was fully satisfied that the said respondent
had nothing against him. Learned senior counsel also pointed out that even in
the letter written by the petitioner's wife there was no objection against
respondent No.3 being a member of the Committee on the ground that he had pre-judged
the guilt of her husband. Learned senior counsel submitted that after reading
the representations made by the petitioner and his wife, no person of reasonable
prudence can carry an impression that the Committee of which respondent No.3 is
a member will not be able to objectively investigate into the charges framed against
the petitioner.
Learned senior
counsel relied upon the judgments of this Court in Manak Lal v. Dr.Prem Chand Singhvi
AIR 1957 SC 425, Dr. G. Sarana v. University of Lucknow (1976) 3 SCC 585 and R.K.
Anand v. 18Delhi High Court (2009) 8 SCC 106 and argued that by maintaining
silence for over one year against the appointment of respondent No.3 as member
of the Committee, the petitioner will be deemed to have waived his right to
question the constitution of the Committee.
15.
Shri
Prashant Bhushan, learned counsel for the intervenor also referred to letter dated
12.5.2010 and submitted that the petitioner did not harbour any apprehension of
bias of respondent No.3, whose participation in the seminar was known to him as
early as in November 1999 and this was the reason he sought appointment from
the said respondent and argued that belated objection raised by the petitioner against
the constitution of the Committee should not be entertained.
16.
We
have thoughtfully considered the entire matter. Two questions which arise for
consideration are whether by virtue of his active participation in the seminar
organised by the Bar Association of India on 28.11.2009 and his opposition to
the elevation of the petitioner to this Court are sufficient to disqualify respondent
No.3 from being included in the Committee constituted under Section 3(2) of the
Act and whether by his conduct the petitioner will be deemed to have waived his
right to object to the appointment of respondent No.3 as a member of the
Committee.
17.
Since
a good deal of arguments were advanced by the learned counsel on the scope of
Articles 121 and 124 of the Constitution, it may be useful to notice these
Articles. Article 121 declares that no discussion shall take place in
Parliament with respect to the conduct of any Judge of the Supreme Court or of a
High Court in the discharge of his duties except upon a motion presenting an
address to the President for the removal of the Judge. Article 124(4) lays down
that a Judge of the Supreme Court shall not be removed from his office except
by an order of the President passed after an address by each House of
Parliament supported by a majority of the total membership of that House and by
a majority of not less than two-thirds of the members of that House present and
voting has been presented to the President in the same session for such removal
on the ground of proved misbehaviour or incapacity. Article 124(5) lays down
that Parliament may by law regulate the procedure for the presentation of an
address and for the investigation and proof of the misbehaviour or incapacity of
a Judge under clause (4). By virtue of Article 217(1)(b), the provision contained
in Article 124(4) has been made applicable in the matter of removal of a Judge
of the High Court.
18.
18.
Articles 121 and 124 were interpreted by the Constitution Bench in
Sub-Committee on Judicial Accountability vs. Union of India (1991) 4 20SCC 699.
In that case, the Court considered four writ petitions filed in the backdrop of
an Inquiry Committee constituted by the then Speaker of the Lok Sabha to
inquire into the allegations made by 108 Members of the Ninth Lok Sabha who had
prayed for removal of Mr.Justice V. Ramaswami of this Court. In two of the writ
petitions filed by the organizations of advocates, prayer was made for issue of
a mandamus to the Union of India to take immediate steps to enable the Inquiry
Committee to discharge its functions under the Act and to restrain the learned Judge
from performing judicial functions and from exercising judicial powers. In the
third writ petition filed by an advocate, it was prayed that the learned Judge
should not be restrained from discharging his judicial functions till motion for
the presentation of address for his removal was disposed of by both the Houses
of Parliament.
The fourth writ
petition was also filed by an advocate for striking down the Act on the ground
that the same was ultra vires the provisions of Articles 100, 105, 118, 121 and
124(5) of the Constitution. He had also sought a declaration that the motion
presented by 108 Members of the Parliament for the removal of the Judge had
lapsed with the dissolution of the Ninth Lok Sabha. Along with the four writ petitions,
the Court also transferred and disposed of Writ Petition (C) No.1061 of 1991
which was pending before the Delhi High Court with prayer similar to those made
in one of the four writ petitions. The majority judgment was delivered by B.C.
Ray, J. on his behalf and on behalf of M.N. Venkatachaliah, J.S. Verma and S.C.
Agrawal, JJ.
The learned Judge
noticed the procedure prevalent in England as also the provisions contained in Canadian,
Australian and United States Constitutions for removal of judges of Superior Courts,
referred to the resolutions passed in 19th Biennial Conference of the International
Bar Association held at New Delhi in October, 1982, the First World Conference
on the Independence of Justice held at Montreal on 10.6.1983, Seventh United
Nations Congress on the Prevention of Crime and the Treatment of Offenders held
at Milan in August-September, 1985, debate in the Constituent Assembly and
observed: "But the constitutional scheme in India seeks to achieve a judicious
blend of the political and judicial processes for the removal of Judges.
Though it appears at
the first sight that the proceedings of the Constituent Assembly relating to the
adoption of clauses (4) and (5) of Article 124 seem to point to the contrary and
evince an intention to exclude determination by a judicial process of the correctness
of the allegations of misbehaviour or incapacity on a more careful examination
this is not the correct conclusion." The learned Judge then referred to
the scheme of Articles 121 and 124 and observed: "Accordingly, the scheme
is that the entire process of removal is in two parts -- the first part under
clause (5) from initiation to investigation and proof of misbehaviour or incapacity
is covered by an enacted law, Parliament's role being only legislative as in
all the laws enacted by it; and the second part 22only after proof under clause
(4) is in Parliament, that process commencing only on proof in accordance with
the law enacted under clause (5).
Thus the first part
is entirely statutory while the second part alone is the parliamentary
process.The Constitution intended a clear provision for the first part covered fully
by enacted law, the validity of which and the process thereunder being subject
to judicial review independent of any political colour and after proof it was
intended to be a parliamentary process. It is this synthesis made in our
Constitutional Scheme for removal of a Judge.If the motion for presenting an
address for removal is envisaged by Articles 121 and 124(4) `on ground of
proved misbehaviour or incapacity' it presupposes that misbehaviour or incapacity
has been proved earlier. This is more so on account of the expression `investigation
and proof' used in clause (5) with specific reference to clause (4).
This indicates that
`investigation and proof' of misbehaviour or incapacity is not within clause (4)
but within clause (5). Use of the expression `same session' in clause (4)
without any reference to session in clause (5) also indicates that session of House
has no significance for clause (5) i.e., `investigation and proof' which is to be
entirely governed by the enacted law and not the parliamentary practice which may
be altered by each Lok Sabha.The significance of the word `proved' before the expression
`misbehaviour or incapacity' in clause (4) of Article 124 is also indicated when
the provision is compared with Article 317 providing for removal of a member of
the Public Service Commission.
The expression in
clause (1) of Article 317 used for describing the ground of removal is `the ground
of misbehaviour' while in clause (4) of Article 124, it is, `the ground of proved
misbehaviour or incapacity'. The procedure for removal of a member of the
Public Service Commission is also prescribed in clause (1) which provides for
an inquiry by the Supreme Court on a reference made for this purpose. In the 23
case of a Judge, the procedure for investigation and proof is to be in
accordance with the law enacted by the Parliament under clause (5) of Article 124.
In view of the fact that the adjudication of the ground of misbehaviour under Article
317(1) is to be by the Supreme Court, in the case of a Judge who is a higher constitutional
functionary, the requirement of judicial determination of the ground is reinforced
by the addition of the word `proved' in Article 124(4) and the requirement of
law for this purpose under Article 124(5).
Indeed, the Act reflects
the constitutional philosophy of both the judicial and political elements of the
process of removal. The ultimate authority remains with the Parliament in the sense
that even if the committee for investigation records a finding that the Judge is
guilty of the charges it is yet open to the Parliament to decide not to present
an address to the President for removal. But if the committee records a finding
that the Judge is not guilty, then the political element in the process of removal
has no further option. The law is, indeed, a civilised piece of legislation
reconciling the concept of accountability of Judges and the values of judicial
independence."
19.
19.
We may also notice Sections 3 to 6 of the Act which was enacted by Parliament under
Article 124(5) of the Constitution. The same read as under: "3. Investigation
into misbehaviour or incapacity of Judge by Committee.-
(1) If notice is
given of a motion for presenting an address to the President praying for the
removal of a Judge signed,- (a) in the case of a notice given in the House of
the People, by not less than one hundred members of that House; (b) in the case
of a notice given in the Council of States, by not less than fifty members of
that Council, then, the Speaker or, as the case may be, the Chairman may, after
consulting such persons, if any, as he thinks fit and after considering such
materials, if any, as may be available to him , either admit the motion or
refuse to admit the same.
(2) If the motion
referred to in sub- section (1) is admitted, the Speaker or, as the case may be,
the Chairman shall keep the motion pending and constitute, as soon as may be, for
the purpose of making an investigation into the grounds on which the removal of
a Judge is prayed for, a Committee consisting of three members of whom- (a) one
shall be chosen from among the Chief Justices and other Judges of the Supreme
Court; (b) one shall be chosen from among the Chief Justices of the High
Courts; and (c) one shall be a person who is, in the opinion of the Speaker or,
as the case may be, the Chairman, a distinguished jurist: Provided that where notices
of a motion referred to in sub- section (1) are given on the same day in both Houses
of Parliament, no Committee shall be constituted unless the motion has been admitted
in both Houses and where such motion has been admitted in both Houses, the
Committee shall be constituted jointly by the Speaker and the Chairman:
Provided further that
where notices of a motion as aforesaid are given in the Houses of Parliament on
different dates, the notice which is given later shall stand rejected. (3) The Committee
shall frame definite charges against the Judge on the basis of which the
investigation is proposed to be held. (4) Such charges together with a statement
of the grounds on which each such charge is based shall be communicated to the 25Judge
and he shall be given a reasonable opportunity of presenting a written statement
of defence within such time as may be specified in this behalf by the
Committee.
(8) The Committee
may, after considering the written statement of the Judge and the medical
report, if any, amend the charges framed under sub-section (3) and in such
case, the Judge shall be given a reasonable opportunity of presenting a fresh
written statement of defence. (9) The Central Government may, if required by
the Speaker or the Chairman, or both, as the case may be, appoint an advocate
to conduct the case against the Judge. 4. Report of Committee.-(1) Subject to
any rules that may be made in this behalf, the Committee shall have power to
regulate its own procedure in making the investigation and shall give a
reasonable opportunity to the Judge of cross-examining witness, adducing evidence
and of being heard in his defence.
(2) At the conclusion
of the investigation, the Committee shall submit its report to the Speaker or,
as the case may be, to the Chairman, or where the Committee has been
constituted jointly by the Speaker and the Chairman, to both of them, stating
therein its findings on each of the charges separately with such observation on
the whole case as it thinks fit. (3) The Speaker or the Chairman, or, where the
Committee has been constituted jointly by the Speaker and the Chairman, both of
them, shall cause the report submitted under sub-section (2) to be laid, as
soon as may be, respectively before the House of the People and the Council of
States.5. Powers of Committee.-
For the purpose of making
any investigation under this Act, the Committee shall have the powers of a
civil court, while trying a suit, under the Code of Civil Procedure, 1908, in respect
of the following matters, namely:- 26 (a) summoning and enforcing the attendance
of any person and examining him on oath; (b) requiring the discovery and
production of documents; (c) receiving evidence on oath; (d) issuing
commissions for the examination of witnesses or documents; (e) such other
matters as may be prescribed. 6. Consideration of report and procedure for presentation
of an address for removal of Judge.-(1) If the report of the Committee contains
a finding that the Judge is not guilty of any misbehaviour or does not suffer
from any incapacity, then, no further steps shall be taken in either House of Parliament
in relation to the report and the motion pending in the House or the Houses of
Parliament shall not be proceeded with.
(2) If the report of the
Committee contains a finding that the Judge is guilty of any misbehaviour or suffers
from any incapacity, then, the motion referred to in sub-section (1) of section
3 shall, together with the report of the Committee, be taken up for consideration
by the House or the Houses of Parliament in which it is pending. (3) If the motion
is adopted by each House of Parliament in accordance with the provision of
clause (4) of article 124 or, as the case may be, in accordance with that
clause read with article 218 of the Constitution, then, the misbehaviour or
incapacity of the Judge shall be deemed to have been proved and an address praying
for the removal of the Judge shall be presented in the prescribed manner to the
President by each House of Parliament in the same session in which the motion
has been adopted. "
20.
An
analysis of the above reproduced provisions shows that Section 3(1) of the Act
provides for admission of motion by the Speaker or, as the case may be, the
Chairman provided it is supported by 100 members of the House of the People or
50 members of the Council of States, as the case may be. The Speaker or, as the
case may be, the Chairman, is entitled to consult such person, if any, as he
thinks fit and to consider such material, if any, as may be available to him. If
the motion is admitted, the Speaker or, as the case may be, the Chairman has to
keep the motion pending and to constitute a Committee for the purpose of making
an investigation into the grounds on which the removal of a Judge is prayed for
[Section 3(2)].
The Committee
constituted for the purpose of investigation shall consist of three members of
whom - (a) one shall be chosen from among the Chief Justice and other Judges of
the Supreme Court, (b) one shall be chosen from among the Chief Justices of the
High Courts and (c) one shall be a person who is in the opinion of the Speaker
or, as the case may be, the Chairman, a distinguished jurist. In terms of
Section 3(3), the Committee is required to frame definite charges against the
Judge on the basis of which the investigation is proposed to be held. Section
3(4) requires that the charges together with a statement of the grounds on
which each charge is based shall be communicated to the Judge and he shall be
given a reasonable opportunity of presenting a written statement of defence. Section
3(8) deals with the situation where the Committee, after considering the
written statement of the Judge, decides to amend the charges. In that event, the
Judge is required to be given a reasonable opportunity of presenting a fresh
written statement of defence.
In terms of Section
3(9), the Central Government is empowered to appoint an advocate to conduct a case
against the Judge. Section 4(1) declares that subject to any rules made in that
behalf, the Committee shall have power to regulate its own procedure in making
the investigation. It also lays down that the Committee shall give a reasonable
opportunity to the Judge to cross-examine the witnesses, adduce evidence and be
heard in his defence. Section 4(2) provides for submission of report by the Committee
to the Speaker or, as the case may be, to the Chairman. It also provides for
submission of report both to the Speaker and the Chairman where the Committee
has been jointly constituted by them.
In terms of Section
4(3), the report of the Committee is required to be placed before both the
Houses of Parliament where the Committee has been constituted jointly by the
Speaker and the Chairman. Section 5 lays down that for the purpose of making
investigation under the Act, the Committee shall have powers of a Civil Court
while trying a suit under the Code of Civil Procedure, 1908 in matters relating
to summoning of witnesses etc. Section 6(1) lays down that if the Committee
finds that the Judge is not guilty of any misbehaviour or does not suffer from any
incapacity, no further steps should be taken in either
House of Parliament. Section
6(2) provides that if the report of the 29Committee contains a finding that the
Judge is guilty of any misbehaviour or suffers from any incapacity, then the
motion together with the report shall be taken up for consideration by the House
in which the motion is pending. Section 6(3) provides that if the motion is adopted
by each House of Parliament in accordance with the provisions of Article 124(4)
or, as the case may be, in accordance with that clause read with Article 218,
then the misbehaviour or incapacity of the Judge shall be deemed to have been
proved and an address praying for the removal of the Judge shall be presented in
the prescribed manner to the President by each House of Parliament in the same
session in which the motion has been adopted.
21.
In
the backdrop of the relevant constitutional and statutory provisions, we shall now
consider whether participation of respondent No.3 in the seminar organised by the
Bar Association of India where he made speech opposing the petitioner's elevation
to this Court and also drafted a resolution to that effect can lead to an inference
that he was biased against the petitioner and he ought not to have been appointed
as a member of the Committee in terms of Section 3(2)(c) of the Act.
22.
The
consideration of the aforesaid question needs to be prefaced by a brief
reference to the nature and scope of the rule against bias and how the same has
been applied by the Courts of common-law jurisdiction in India for invalidating
judicial and administrative actions/orders. Natural justice is a branch of public
law. It is a formidable weapon which can be wielded to secure justice to
citizens. Rules of natural justice are `basic values' which a man has cherished
throughout the ages. Principles of natural justice control all actions of
public authorities by applying rules relating to reasonableness, good faith and
justice, equity and good conscience. Natural justice is a part of law which
relates to administration of justice. Rules of natural justice are indeed great
assurances of justice and fairness. The underlying object of rules of natural justice
is to ensure fundamental liberties and rights of subjects. They thus serve public
interest. The golden rule which stands firmly established is that the doctrine
of natural justice is not only to secure justice but to prevent miscarriage of
justice.
23.
The
traditional English Law recognised the following two principles of natural
justice: "(a) "Nemo debet esse judex in propria causa: No man shall
be a judge in his own cause, or no man can act as both at the one and the same
time - a party or a suitor and also as a judge, or the deciding authority must be
impartial and 31 without bias; and (b) Audi alteram partem: Hear the other side,
or both the sides must be heard, or no man should be condemned unheard, or that
there must be fairness on the part of the deciding authority."However,
over the years, the Courts through out the world have discovered new facets of
the rules of natural justice and applied them to judicial, quasi-judicial and
even administrative actions/decisions. At the same time, the Courts have repeatedly
emphasized that the rules of natural justice are flexible and their application
depends upon the facts of a given case and the statutory provisions, if any, applicable,
nature of the right which may be affected and the consequences which may follow
due to violation of the rules of natural justice.
24.
24.
In Russel v. Duke of Norfolk (1949) 1 All ER 108, Tucker, L.J. observed: "There
are, in my view, no words which are of universal application to every kind of
inquiry and every kind of domestic tribunal. The requirements of natural
justice must depend on the circumstances of the case, the nature of the inquiry,
the rules under which the tribunal is acting, the subject-matter that is being
dealt with, and so forth." In Byrne v. Kinematograph Renters Society
Limited (1958) 2 All ER 579, Lord Harman made the following observations: "What,
then, are the requirements of natural justice in a case of this kind? First, I
think that the person accused should know the nature of the accusation made; secondly,
that he should be given an opportunity to state his case; and thirdly, of course,
that the tribunal should act in good faith. I do not think that there really is
anything more."
In Union of India v. P.K.
Roy AIR 1968 SC 850, Ramaswami, J. observed: "The extent and application of
the doctrine of natural justice cannot be imprisoned within the strait-jacket
of a rigid formula. The application of the doctrine depends upon the nature of
the jurisdiction conferred on the administrative authority, upon the character
of the rights of the persons affected, the scheme and policy of the statute and
other relevant circumstances disclosed in the particular case." In Suresh
Koshy George v. University of Kerala AIR 1969 SC 198, K.S. Hegde, J. observed: "..........The
rules of natural justice are not embodied rules. The question whether the
requirements of natural justice have been met by the procedure adopted in a
given case must depend to a great extent on the facts and circumstances of the
case in point, the constitution of the Tribunal and the rules under which it
functions." A.K. Kraipak v. Union of India (1969) 2 SCC 262 represents an
important milestone in the field of administrative law. The question which came
up for consideration by the Constitution Bench was whether Naqishbund who was a
candidate seeking selection for appointment to the
All India Forest Service
was disqualified from being a member of the selection board. One of the issues
considered by the Court was whether the rules of natural justice were
applicable to purely administrative action. After noticing some precedents on
the subject, the Court held: "The dividing line between an administrative power
and a quasi-judicial power is quite thin and is being gradually obliterated. For
determining whether a power is an administrative power or a quasi-judicial power
one has to look to the nature of the power conferred, the person or persons on whom
it is conferred, the framework of the law conferring that power, the consequences
ensuing from the exercise of that power and the manner in which that power is expected
to be exercised. Under our Constitution the rule of law pervades over the
entire field of administration. Every organ of the State under our Constitution
is regulated and controlled by the rule of law. In a welfare State like ours it
is inevitable that the jurisdiction of the administrative bodies is increasing at
a rapid rate.
The concept of rule of
law would lose its vitality if the instrumentalities of the State are not
charged with the duty of discharging their functions in a fair and just manner.
The requirement of acting judicially in essence is nothing but a requirement to
act justly and fairly and not arbitrarily or capriciously. The procedures which
are considered inherent in the exercise of a judicial power are merely those which
facilitate if not ensure a just and fair decision. In recent years the concept of
quasi-judicial power has been undergoing a radical change. What was considered as
an administrative power some years back is now being considered as a quasi- judicial
power."
The Court then
considered whether the rules of natural justice were applicable to a case involving
selection for appointment to a particular service. The learned Attorney General
argued that the rules of natural justice were not applicable to the process of selection.
The Constitution Bench referred to the judgments of the Queen's Bench in re H.K.
(An infant) (1967) 2 QB 617 and of this Court in State of Orissa v. Dr.(Miss)
Binapani Dei (1967) 2 SCR 625 and observed: "The aim of the rules of
natural justice is to secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate only in areas not covered by
any law validly made.
In other words they do
not supplant the law of the land but supplement it. The concept of natural justice
has undergone a great deal of change in recent years. In the past it was
thought that it included just two rules namely: (1 ) no one shall be a judge in
his own case (Nemo debet esse judex propria causa) and (2 ) no decision shall be
given against a party without affording him a reasonable hearing (audi alteram
partem) . Ver y soon thereafter a third rule was envisaged and that is that
quasi- judicial enquiries must be held in good faith, without bias and not
arbitrarily or unreasonably. But in the course of years many more subsidiary
rules came to be added to the rules of natural justice. Till very recently it
was the opinion of the courts that unless the authority concerned was required by
the law under which it functioned to act judicially there was no room for the application
of the rules of natural justice.
The validity of that limitation
is now questioned. If the purpose of the rules of natural justice is to prevent
miscarriage of justice one fails to see why those rules should be made inapplicable
to administrative enquiries. Often times it is not easy to draw the line that demarcates
administrative enquiries from quasi- judicial enquiries. Enquiries which were considered
administrative at one time are now being considered as quasi- judicial in character.
Arriving at a just decision is the aim of both quasi-judicial enquiries as well
as administrative enquiries. An unjust decision in an administrative enquiry
may have more far reaching effect than a decision in a quasi-judicial enquiry.
As observed by this Court
in Suresh Koshy George v. University of Kerala the rules of natural justice are
not 35 embodied rules. What particular rule of natural justice should apply to
a given case must depend to a great extent on the facts and circumstances of
that case, the framework of the law under which the enquiry is held and the
constitution of the Tribunal or body of persons appointed for that purpose. Whenever
a complaint is made before a court that some principle of natural justice had been
contravened the court has to decide whether the observance of that rule was
necessary for a just decision on the facts of that case." (emphasis supplied)
In Maneka Gandhi v. Union of India (supra), a larger Bench of seven Judges considered
whether passport of the petitioner could be impounded without giving her notice
and opportunity of hearing. Bhagwati, J, speaking for himself and for Untwalia and
Fazal Ali, JJ, gave a new dimension to the rule of audi alteram partem and declared
that an action taken in violation of that rule is arbitrary and violative of
Articles 14 and 21 of the Constitution.
The learned Judge
referred to Ridge v. Baldwin (1964) AC 40, State of Orissa v. Dr.(Miss) Binapani
Dei (supra), re H.K.(An Infant) (supra) and A.K. Kraipak v. Union of India
(supra) and observed: "The audi alteram partem rule is intended to inject
justice into the law and it cannot be applied to defeat the ends of justice, or
to make the law "lifeless, absurd, stultifying, self-defeating or plainly contrary
to the common sense of the situation". Since the life of the law is not
logic but experience and every legal proposition must, in the ultimate analysis,
be tested on the touchstone of pragmatic realism, the audi alteram partem rule would,
by the experiential test, be excluded, if importing the right to be heard has
the effect of paralysing the administrative process or the need for promptitude
or the urgency of the situation so demands. But at the same time it must be
remembered that this is a rule of vital importance in the field of
administrative law and it must not be jettisoned save in very exceptional circumstances
where compulsive necessity so demands. It is a wholesome rule designed to
secure the rule of law and the court should not be too ready to eschew it in its
application to a given case.
True it is that in
questions of this kind a fanatical or doctrinaire approach should be avoided,
but that does not mean that merely because the traditional methodology of a formalised
hearing may have the effect of stultifying the exercise of the statutory power,
the audi alteram partem should be wholly excluded. The court must make every
effort to salvage this cardinal rule to the maximum extent permissible in a given
case. It must not be forgotten that "natural justice is pragmatically flexible
and is amenable to capsulation under the compulsive pressure of circumstances".
The audi alteram partem rule is not cast in a rigid mould and judicial decisions
establish that it may suffer situational modifications. The core of it must, however,
remain, namely, that the person affected must have a reasonable opportunity of
being heard and the hearing must be a genuine hearing and not an empty public
relations exercise.
A fair opportunity of
being heard following immediately upon the order impounding the passport would
satisfy the mandate of natural justice and a provision requiring giving of such
opportunity to the person concerned can and should be read by implication in
the Passports Act, 1967. If such a provision were held to be incorporated in
the Passports Act, 1967 by necessary implication, as we hold it must be, the
procedure prescribed by the Act for impounding a passport would be right, fair
and just and it would not suffer from the vice of arbitrariness or
unreasonableness. We must, therefore, hold that the procedure
"established" by the Passports Act, 1967 for impounding a passport is
in conformity with the requirement of Article 21 and does not fall foul of that
article."
In Olga Tellis v. Bombay
Municipal Corporation (1985) 3 SCC 545, the Constitution Bench dealt with the
question whether pavement and slum dwellers could be evicted without being heard.
After adverting to various precedents on the subject, Chief Justice Chandrachud
observed: "Just as a mala fide act has no existence in the eye of law,
even so, unreasonableness vitiates law and procedure alike. It is therefore essential
that the procedure prescribed by law for depriving a person of his fundamental right,
in this case the right to life, must conform to the norms of justice and
fairplay. Procedure, which is unjust or unfair in the circumstances of a case,
attracts the vice of unreasonableness, thereby vitiating the law which prescribes
that procedure and consequently, the action taken under it.
Any action taken by a
public authority which is invested with statutory powers has, therefore, to be tested
by the application of two standards: the action must be within the scope of the
authority conferred by law and secondly, it must be reasonable. If any action,
within the scope of the authority conferred by law, is found to be
unreasonable, it must mean that the procedure established by law under which that
action is taken is itself unreasonable. The substance of the law cannot be
divorced from the procedure which it prescribes for, how reasonable the law is,
depends upon how fair is the procedure prescribed by it. Sir Raymond Evershed says
that, "from the point of view of the ordinary citizen, it is the procedure
that will most strongly weigh with him. He will tend to form his judgment of
the excellence or otherwise of the legal system from his personal knowledge and
experience in seeing the legal machine at work". Therefore, "He that takes
the procedural sword shall perish with the sword."
25.
In
this case, we are concerned with the application of first of the two principles
of natural justice recognized by the traditional English Law, i.e., 38Nemo
debet esse judex in propria causa. This principle consists of the rule against
bias or interest and is based on three maxims: (i) No man shall be a judge in
his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly
be seen to be done; and (iii) Judges, like Caesar's wife should be above
suspicion. The first requirement of natural justice is that the Judge should be
impartial and neutral and must be free from bias. He is supposed to be
indifferent to the parties to the controversy.
He cannot act as
Judge of a cause in which he himself has some interest either pecuniary or
otherwise as it affords the strongest proof against neutrality. He must be in a
position to act judicially and to decide the matter objectively. A Judge must
be of sterner stuff. His mental equipoise must always remain firm and
undetected. He should not allow his personal prejudice to go into the
decision-making. The object is not merely that the scales be held even; it is
also that they may not appear to be inclined. If the Judge is subject to bias
in favour of or against either party to the dispute or is in a position that a
bias can be assumed, he is disqualified to act as a Judge, and the proceedings
will be vitiated. This rule applies to the judicial and administrative authorities
required to act judicially or quasi-judicially.
26.
A
pecuniary (bias) interest, however small it may be, disqualifies a person from
acting as a Judge. Other types of bias, however, do not stand on the same
footing and the Courts have, from time to time, evolved different rules for deciding
whether personal or official bias or bias as to subject matter or judicial
obstinacy would vitiate the ultimate action/order/decision.
27.
In
The Queen v. Rand (1866) LR 1 (Q.B.D.) 230, the Queen's Bench was called upon to
consider whether the factum of two justices being trustees of a hospital and a
friendly society respectively, each of which had lent money to the Bradford Corporation
on bonds charging the corporate fund were disqualified from participating in
the proceedings which resulted in issue of certificate in favour of the
corporation to take water of certain streams without permission of the mill owners.
While answering the question in negative, Blackburn, J. evolved the following
rule: "................
There is no doubt that
any direct pecuniary interest, however small, in the subject of inquiry, does disqualify
a person from acting as a judge in the matter; and if by any possibility these
gentlemen, though mere trustees, could have been liable to costs, or to other
pecuniary loss or gain, in consequence of their being so, we should think the question
different from what it is: for that might be held an interest. But the only way
in which the facts could affect their impartiality, would be that they might
have a tendency to favour those for whom they were trustees; and that is an objection
not in the nature of interest, but of a challenge to the favour.
Wherever there is a
real likelihood that the judge would, from kindred or 40 any other cause, have
a bias in favour of one of the parties, it would be very wrong in him to act; and
we are not to be understood to say, that where there is a real bias of this
sort this Court would not interfere; but in the present case there is no ground
for doubting that the justices acted perfectly bona fide; and the only question
is, whether in strict law, under such circumstances, the certificate of such justices
is void, as it would be if they had a pecuniary interest; and we think that Reg.
v. Dean of Rochester (1) is an authority, that circumstances, from which a
suspicion of favour may arise, do not produce the same effect as a pecuniary
interest............"
28.
In
Rex v. Sussex Justices, Ex Parte McCarthy (1924) 1 KB 256, Lord Hewart, CJ.,
evolved the rule that justice should not only be done, but manifestly and
undoubtedly be seen to be done. The facts of that case were that on August 21,
1923, a collision took place between a motor cycle driven by the applicant and
a motor cycle and side-car driven by one Whitworth, and it was alleged that the
latter and his wife sustained injuries in the collision. In respect of those injuries
Messrs Langham, Son & Douglas, solicitors, Hastings, by a letter dated August
28, 1923, made a claim on behalf of Whitworth against the applicant for
damages, and the police, after making inquiries into the circumstances of the collision,
applied for and obtained a summon against the applicant for driving his motor cycle
in a manner dangerous to the public.
At the hearing of that
summon on September 22, 1923, the applicant's solicitor, who stated in his
affidavit that he had no knowledge of the officials of the court, inquired
whether Mr. F.G. 41Langham, the clerk to the justices and a member of the said firm
of Langham, Son & Douglas, was then sitting as clerk, and was informed that
he was not, but had appointed a deputy for that day. The case was then heard,
and at the conclusion of the evidence the justices retired to consider their decision,
the deputy clerk retiring with them. When the justices returned into court they
intimated that they had decided to convict the applicant, and they imposed a fine
of 10 lakh and costs.
Thereupon, the
applicant's solicitor brought to the notice of the justices the fact, of which
he said he had only become aware when the justices retired, that the deputy
clerk was a brother of Mr. F.G. Langham, and was himself a partner in the firm of
Langham, Son & Douglas, and so was interested as solicitor for Whitworth in
the civil proceedings arising out of the collision in respect of which they had
convicted the applicant. The solicitor in his affidavit stated that had he
known the above facts he would have taken the objection before the case began. This
rule was thereafter obtained on the ground that it was irregular for the deputy
clerk in the circumstances to retire with the justices when considering their
decision. The King's Bench quashed the conviction on the ground of bias. Lord
Hewart C.J., posed the following question: "..............
The question therefore
is not whether in this case the deputy clerk made any observation or offered
any criticism which he might not properly have made or offered; the question is
whether he was so related to the case in its civil aspect as to 42 be unfit to
act as clerk to the justices in the criminal matter...... ......." He then
proceeded to observe: "......................The answer to that question depends
not upon what actually was done but upon what might appear to be done.
Nothing is to be done
which creates even a suspicion that there has been an improper interference with
the course of justice. Speaking for myself, I accept the statements contained in
the justices' affidavit, but they show very clearly that the deputy clerk was
connected with the case in a capacity which made it right that he should
scrupulously abstain from referring to the matter in any way, although he
retired with the justices; in other words, his one position was such that he
could not, if he had been required to do so, discharge the duties which his other
position involved. His twofold position was a manifest contradiction. In those circumstances
I am satisfied that this conviction must be quashed, unless it can be shown that
the applicant or his solicitor was aware of the point that might be taken, refrained
from taking it, and took his chance of an acquittal on the facts, and then, on
a conviction being recorded, decided to take the point............"
29.
29.
In Regina v. Camborne Justices Ex parte Pearce (1955) 1 QB 41, the Divisional Court
of Queen's Bench Division after reviewing large number of authorities including
Rex v. Sussex Justices, Ex parte McCarthy (supra) and held that " real
likelihood was the proper test, and that a real likelihood of bias had to be made
to appear not only from the materials in fact ascertained by the party
complaining, but from such further facts as he might readily have ascertained
and easily verified in the course of 43his inquiries."
The issue which arose
for consideration in that case was whether the conviction of Henry Pearce was vitiated
on four grounds including the one that throughout the hearing Mr. Donald Woodroffe
Thomas, solicitor, acted as clerk to the justices and was called into their
private room for the purpose of advising them, although he was at the time a
councilor member of the council. The facts of that case were as follows: "On
January 27, 1948, the Public
Health and Housing Committee
(later known as the Health Committee) of the council recommended that the authority
of the council should be given to its sampling officers to institute
proceedings under the Food and Drugs Act, 1938. On February 24, 1948, the council
adopted this recommendation. Since that date each of the council's sampling officers,
including Rundle, had from time to time been given authorities under the seal of
the council appointing them inspectors and authorized officers of the council under
the Food and Drugs Acts and expressly authorizing them to institute, on behalf of
the council, proceedings under the Acts before any court of summary jurisdiction.
On June 20, 1952, a fresh sealed authority was given to Rundle and the other sampling
officers, being an extension of the earlier authorities, and this sealed authority
was in force at all material times.
This authority
empowered the sampling officers to institute proceedings under, inter alia, the
Food and Drugs Acts in their own discretion and without seeking any specific
authority from the council to do so, and it became the practice for the chief
sampling officer to report to the Health Committee the action his subordinates had
in fact taken. On January 4, 1954, Rundle laid the two informations against the
applicant. On January 19, 1954, the chief sampling officer reported to the
Health Committee that such proceedings were pending against the applicant. On February
23, 1954, the council received and adopted the report of its Health Committee dated
January 19, 1954. On 44April 13, 1954, the chief sampling officer reported to
the Health Committee the result of the proceedings against the applicant. On
May 11, 1954, the council received and adopted the report of its Health
Committee dated April 13, 1954. Mr. Thomas was not present at any of the above-mentioned
four meetings and indeed was never a member of the Health Committee or its
predecessor, the Public Health and Housing Committee. Rundle laid the two
informations in the exercise of his own discretion and upon his own responsibility
in pursuance of the power conferred upon him by his sealed authority. Mr. Thomas
was appointed clerk to the justices for the East Penwith Division of Cornwall
on December 30, 1931.
He was elected a
member of Cornwall County Council on April 22, 1937. He acted as clerk to the justices
during the trial of the applicant upon the informations at the Camborne Magistrates'
Court on January 26, 1954. He did not retire with the justices while they were
considering their verdict, but was later sent for by the chairman, who
requested him to advise the justices upon a point of law. During the short time
that he was with them the justices did not discuss the facts of the case at
all, and having given his advice on the point of law he returned to court. Some
appreciable time later the justices returned and gave their decision. At the
hearing the applicant pleaded "Not Guilty." The prosecution was
conducted by a solicitor in the full-time employment of the Cornwall County Council.
The applicant was represented
by counsel, instructed by his solicitors, Messrs. Stephens & Scown of St.
Austell. An articled clerk, Mr. Philip Stephens (who was not related to any partner
in the firm) attended counsel at the hearing on behalf of that firm. Neither the
applicant, nor counsel, nor the articled clerk was aware at that time that the
clerk to the justices was a member of the Cornwall County Council though that fact
was well known to Mr. William Garfield Scown, the partner in the firm who had
the conduct of the applicant's defence.During the six years from 1948 to 1953 inclusive
some 660 prosecutions by the Cornwall County Council were heard and determined by
the East Penwith Magistrates' Court at which either Mr. Thomas or the deputy clerk
to the justices, Mr. Garfield Uren, acted as clerk to the justices; yet so far
as was 45 known no previous objection had ever been made because Mr. Thomas
acted as clerk to the justices during the hearing of an information by or on behalf
of the Cornwall County Council. There was no allegation that Mr. Thomas
attempted in any way improperly to influence the justices in their decision on
January 26, 1954." The question posed in that case was "what interest
in "a judicial or quasi-judicial proceeding does the law regard as
"sufficient to incapacitate a person from adjudicating or assisting
"in adjudicating on it upon the ground of bias or appearance of "bias?"
It is, of course, clear
that any direct pecuniary or proprietary interest in the subject-matter of a proceeding,
however small, operates as an automatic disqualification. In such a case the
law assumes bias. What interest short of that will suffice? The Divisional
Court referred to judgment of Blackburn, J. in The Queen v. Rand (supra), in
which the test of real likelihood of bias was evolved, Lord Esher M.R. in
Eckersley v. Mersey Docks and Harbour Board (1894) 2 QB 667, Rex v. Justices of
County Cork (1910) 2 IR 271, Rex v. Sussex Justices, Ex parte McCarthy (supra),
Frome United Breweries Company v. Bath Justices, (1926) AC 586, Rex v. Essex
Justices, Ex parte Perkins (1927) 2 KB 475 and held: "In the judgment of
this court the right test is that prescribed by Blackburn J., namely, that to
disqualify a person from acting in a judicial or quasi-judicial capacity upon
the ground of interest (other than pecuniary or proprietary) in the
subject-matter of the 46 proceeding, a real likelihood of bias must be shown.
This court is further
of opinion that a real likelihood of bias must be made to appear not only from
the materials in fact ascertained by the party complaining, but from such further
facts as he might readily have ascertained and easily verified in the course of
his inquiries. In the present case, for example, the facts relied on in the applicant's
statement under R.S.C., Ord. 59, r. 3 (2), might create a more sinister
impression than the full facts as found by this court, all or most of which
would have been available to the applicant had he pursued his inquiries upon learning
that Mr. Thomas was a member of the Cornwall County Council, and none of these
further facts was disputed at the hearing of this motion.
The frequency with
which allegations of bias have come before the courts in recent times seems to
indicate that Lord Hewart's reminder in the Sussex Justices case that it
"is of fundamental " importance that justice should not only be done,
but should "manifestly and undoubtedly be seen to be done "is being
urged as a warrant for quashing convictions or invalidating orders upon quite unsubstantial
grounds and, indeed, in some cases upon the flimsiest pretexts of bias. Whilst indorsing
and fully maintaining the integrity of the principle reasserted by Lord Hewart,
this court feels that the continued citation of it in cases to which it is not applicable
may lead to the erroneous impression that it is more important that justice
should appear to be done than that it should in fact be done." (emphasis
supplied)
30.
In
Metropolitan Properties (FGC) Ltd. v. Lannon (1969) 1 QB 577, the Court of
Appeal applied suspicion test and reasserted `justice must be seen to be done'
as the operative principle.
31.
In
R v. Gough (1993) AC 646, the House of Lords applied the `real likelihood' test
by using the expression `real danger'. Two portions of the leading speech given
by Lord Goff are extracted below: "In my opinion, if the circumstances of
the case (as ascertained by the court), it appears that there was a real
likelihood, in the sense of a real possibility, of bias on the part of a justice
or other member of an inferior tribunal, justice requires that the decision should
not be allowed to stand. I am by no means persuaded that, in its original form,
the real likelihood test required that any more rigorous criterion should be applied.
Furthermore the test
as so stated gives sufficient effect, in cases of apparent bias, to the
principle that justice must manifestly be seen to be done, and it is
unnecessary, in my opinion, to have recourse to a test based on mere suspicion,
or even reasonable suspicion, for that purpose" "In conclusion, I
wish to express my understanding of the law as follows. I think it possible,
and desirable, that the same test should be applicable in all cases of apparent
bias, whether concerned with justices or members of other inferior tribunals, or
with jurors, or with arbitrators. Likewise I consider that, in cases concerned
with jurors, the same test should be applied by a judge to whose attention the
possibility of bias on the part of a juror has been drawn in the course of a
trial, and by the Court of Appeal when it considers such a question on appeal.
Furthermore, I think it
unnecessary, in formulating the appropriate test, to require that the court should
look at the matter through the eyes of a reasonable man, because the court in cases
such as these personifies the reasonable man; and in any event the court has first
to ascertain the relevant circumstances from the available evidence, knowledge
of which would not necessarily be available to an observer in court at the relevant
time. Finally, for the avoidance of doubt, I prefer to state the test in terms
of real danger rather than real likelihood, to ensure that the court is
thinking in terms of possibility rather than probability of bias. Accordingly, having
ascertained the relevant circumstances, the court should ask itself whether, 48
having regard to those circumstances, there was a real danger of bias on the part
of the relevant member of the tribunal in question, in the sense that he might unfairly
regard (or have unfairly regarded) with favour, or disfavour, the case of a
party to the issue under consideration by him...." (emphasis supplied)
32.
32.
In R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet
Ugarte (No.2) (supra), the House of Lords considered the question whether the
factum of one of the Law Lords, who was a director and chairperson of Amnesty International
Charity Limited, was disqualified from being a party in the proceedings of an
appeal in which Amnesty International was granted leave to intervene. In that
case, Senator Augusto Pinochet Ugarte applied for setting aside the decision of
the House of Lords whereby the appeal of the Commissioner of Police of the
Metropolis and the Government of Spain was allowed and the decision of the
Queen's Bench Divisional Court quashing the provisional warrant issued for the
arrest of the petitioner was set aside. The ground on which review of the decision
was sought was that Lord Hoffmann, who constituted the majority of the House of
Lords, was biased because he was a director and chairperson of Amnesty International
Charity Limited.
Lord Browne-Wilkinson,
with whom other members of the Bench agreed, noted that neither Senator
Pinochet nor his legal advisors were aware of any connection 49between Lord
Hoffmann and Amnesty International until after the judgment was delivered on
25.11.1998 in the main case and the appeal filed against the judgment of the Queen's
Bench Divisional Court was allowed by a majority of three to two. After the
judgment, relationship of Lord Hoffmann and his wife with Amnesty International
and its constituents were revealed. Lord Browne-Wilkinson noted that there was no
allegation that Lord Hoffmann was in fact biased but the argument was that there
was a real danger or reasonable apprehension or suspicion that Lord Hoffmann
might have been biased and proceeded to observe: "The fundamental
principle is that a man may not be a judge in his on cause. This principle, as
developed by the courts, has two very similar but not identical implications.
First it may be applied
literally: if a judge is in fact a party to the litigation or has a financial
or proprietary interest in its outcome then he is indeed sitting as a judge in
his own cause. In that case, the mere fact that he is a party to the action or has
a financial or proprietary interest in its outcome is sufficient to cause his automatic
disqualification. The second application of the principle is where a judge is
not a party to the suit and does not have a financial interest in its outcome,
but in some other way his conduct or behaviour may give rise to a suspicion
that he is not impartial, for example because of his friendship with a party. This
second type of case is not strictly speaking an application of the principle
that a man must not be judge in his own cause, since the judge will not normally
be himself benefiting, but providing a benefit for another by failing to be impartial.
In my judgment, this case falls within the first category of case, viz where
the judge is disqualified because he is a judge in his own cause.
In such a case, once it
is shown that the judge is 50himself a party to the cause, or has a relevant interest
in its subject matter, he is disqualified without any investigation into
whether there was a likelihood or suspicion of bias. The mere fact of his
interest is sufficient to disqualify him unless he has made sufficient
disclosure: see Shetreet Judges on Trial (1976) p 303 and De Smith, Woolf and Jowell
Judicial Review of Administrative Action (5th edn, 1995) p 525. I will call this
'automatic disqualification'. xxx xxx xxx xxx
The importance of
this point in the present case is this. Neither AI, nor AICL, have any
financial interest in the outcome of this litigation. We are here confronted,
as was Lord Hoffmann, with a novel situation where the outcome of the litigation
did not lead to financial benefit to anyone. The interest of AI in the
litigation was not financial; it was its interest in achieving the trial and possible
conviction of Senator Pinochet for crimes against humanity.By seeking to
intervene in this appeal and being allowed so to intervene, in practice AI became
a party to the appeal. Therefore if, in the circumstances, it is right to treat
Lord Hoffmann as being the alter ego of AI and therefore a judge in his own cause,
then he must have been automatically disqualified on the grounds that he was a party
to the appeal. Alternatively, even if it be not right to say that Lord Hoffmann
was a party to the appeal as such, the question then arises whether, in non-financial
litigation, anything other than a financial or proprietary interest in the outcome
is sufficient automatically to disqualify a man from sitting as judge in the
cause.
Are the facts such as
to require Lord Hoffmann to be treated as being himself a party to this appeal?
The facts are striking and unusual. One of the parties to the appeal is an
unincorporated association, AI. One of the constituent parts of that
unincorporated association is AICL. AICL was established, for tax purposes, to carry
out part of the functions of AI--those parts which were charitable--which had previously
been 51carried on either by AI itself or by AIL. Lord Hoffmann is a director
and chairman of AICL, which is wholly controlled by AI, since its members (who ultimately
control it) are all the members of the international executive committee of AI.
A large part of the work of AI is, as a matter of strict law, carried on by
AICL which instructs AIL to do the work on its behalf. In reality, AI, AICL and
AIL are a close-knit group carrying on the work of AI.However, close as these links
are, I do not think it would be right to identify Lord Hoffmann personally as
being a party to the appeal.
He is closely linked
to AI but he is not in fact AI. Although this is an area in which legal technicality
is particularly to be avoided, it cannot be ignored that Lord Hoffmann took no
part in running AI. Lord Hoffmann, AICL and the executive committee of AI are
in law separate people. Then is this a case in which it can be said that Lord
Hoffmann had an `interest' which must lead to his automatic disqualification? Hitherto
only pecuniary and proprietary interests have led to automatic disqualification.
But, as I have indicated, this litigation is most unusual. It is not civil
litigation but criminal litigation. Most unusually, by allowing AI to
intervene, there is a party to a criminal cause or matter who is neither
prosecutor nor accused. That party, AI, shares with the government of Spain and
the CPS, not a financial interest but an interest to establish that there is no
immunity for ex-heads of state in relation to crimes against humanity.
The interest of these
parties is to procure Senator Pinochet's extradition and trial--a non-pecuniary
interest. So far as AICL is concerned, cl (c) of its memorandum provides that one
of its objects is 'to procure the abolition of torture, extra-judicial execution
and disappearance'. AI has, amongst other objects, the same objects. Although AICL,
as a charity, cannot campaign to change the law, it is concerned by other means
to procure the abolition of these crimes against humanity. In my opinion,
therefore, AICL plainly had a non-pecuniary interest, to establish that Senator
Pinochet was not immune. 52That being the case, the question is whether in the
very unusual circumstances of this case a non-pecuniary interest to achieve a
particular result is sufficient to give rise to automatic disqualification and,
if so, whether the fact that AICL had such an interest necessarily leads to the
conclusion that Lord Hoffmann, as a director of AICL, was automatically
disqualified from sitting on the appeal?
My Lords, in my
judgment, although the cases have all dealt with automatic disqualification on
the grounds of pecuniary interest, there is no good reason in principle for so limiting
automatic disqualification. The rationale of the whole rule is that a man
cannot be a judge in his own cause. In civil litigation the matters in issue will
normally have an economic impact; therefore a judge is automatically disqualified
if he stands to make a financial gain as a consequence of his own decision of
the case. But if, as in the present case, the matter at issue does not relate to
money or economic advantage but is concerned with the promotion of the cause, the
rationale disqualifying a judge applies just as much if the judge's decision will
lead to the promotion of a cause in which the judge is involved together with one
of the parties.
Thus in my opinion if
Lord Hoffmann had been a member of AI he would have been automatically
disqualified because of his non-pecuniary interest in establishing that Senator
Pinochet was not entitled to Immunity. Indeed, so much I understood to have
been conceded by Mr Duffy.Can it make any difference that, instead of being a direct
member of AI, Lord Hoffmann is a director of AICL, that is of a company which
is wholly controlled by AI and is carrying on much of its work? Surely not. The
substance of the matter is that AI, AIL and AICL are all various parts of an entity
or movement working in different fields towards the same goals.
If the absolute
impartiality of the judiciary is to be maintained, there must be a rule which
automatically" disqualifies a judge who is involved, whether personally or
as a director of a company, in promoting the same causes in the same
organisation as is a party to the suit. There is no room for fine distinctions if
Lord Hewart CJ's famous dictum is to be observed: it is 'of fundamental importance
that justice should 53 not only be done, but should manifestly and undoubtedly be
seen to be done'." (emphasis supplied)
33.
In
re Medicaments and Related Classes of Goods (No.2) (supra), the Court of Appeal
set aside the decision of the Restrictive Practices Court on the ground of real
danger of bias by making the following observations: ".........The court had
first to ascertain all the circumstances which had a bearing on the suggestion
that the judge was biased and then ask whether those circumstances would lead a
fair- minded and informed observer to conclude that there was a real possibility,
or a real danger, the two being the same, that the judge was biased; that the
material circumstances included any explanation given by the impugned judge as
to his knowledge or appreciation of those circumstances and where any such explanation
was disputed the reviewing court did not have to rule whether the explanation
should be accepted or rejected but rather had to decide whether the fair-minded
observer would consider
that there was a real danger of bias notwithstanding the explanation advanced;
that instead of determining whether R's statement was truthful the court should
have considered what impression her conduct, including her explanation for it, would
have had on a fair-minded observer; that such an observer would not have been
convinced that all prospects of R working for the firm at some time in the future
had been destroyed or that she might not still hope to work for them in due course;
that, in those circumstances, the fair-minded observer would apprehend that
there was a real danger that R would be unable to make an objective and
impartial appraisal of the expert evidence placed before the court by the firm;
and that, accordingly, R ought to have recused herself and the other members of
the court should stand down."
34.
34.
It is, thus, evident that the English Courts have applied different tests for deciding
whether non-pecuniary bias would vitiate judicial or quasi judicial decision. Many
judges have laid down and applied the `real likelihood' formula, holding that
the test for disqualification is whether the facts, as assessed by the court,
give rise to a real likelihood of bias. Other judges have employed a `reasonable
suspicion' test, emphasizing that justice must be seen to be done, and that no
person should adjudicate in any way if it might reasonably be thought that he ought
not to act because of some personal interest. The Constitutional Court of South
Africa has, in President of the Republic of South Africa v. South African Rugby
Football Union 1999 (4) SA 147 while holding that onus of establishing that
there was ground for recusal of the members of the Court was on the applicant,
made the following significant observations: "............
The question is
whether a reasonable, objective and informed person would on the correct facts reasonably
apprehend that the judge has not or will not bring an impartial mind to bear on
the adjudication of the case, that is a mind open to persuasion by the evidence
and the submissions of counsel. The reasonableness of the apprehension must be
assessed in the light of the oath of office taken by the judges to administer justice
without fear or favour; and their ability to carry out that oath by reason of their
training and experience. It must be assumed that they can disabuse their minds of
any irrelevant personal beliefs or predispositions. They must take into account
the fact that they have a duty to sit in any case in which they are not obliged
to recuse themselves.
At the same time, it must
never be forgotten that an impartial judge is a fundamental prerequisite for a fair
trial and a judicial officer should not hesitate to recuse herself or himself if
there are reasonable grounds on the part of a litigant for apprehending that the
judicial officer, for whatever reasons, was not or will not be impartial."
The High Court of Australia has adopted a different approach, as is evident from
the judgment of seven-Judge Bench in Johnson v. Johnson (2000) 174 Australian Law
Reports 655. The parties to the appeal were married in November 1979. The marriage
was dissolved in 1996. The proceedings before Anderson, J. arose out of a dispute
as to the financial arrangements to be made following such dissolution. There
was a substantial amount at stake.
It was held that
there was what the Full Court described as an "asset pool" valued at nearly
$30m. Anderson, J. decided that the respondent (the wife) should receive 40% of
that pool. One of the principal areas of dispute at the trial, which lasted for
66 days, concerned the extent of the appellant's assets and, in particular, whether
he was beneficially interested in substantial offshore assets owned by other
persons and entities. It is unnecessary to go into the detail of that dispute.
What is important is that, at the trial, the respondent was asserting, and the appellant
was denying, that the appellant was beneficially interested in various assets,
and the investigation of that issue of fact involved a great deal of hearing
time. On the 20th day of the hearing, Anderson, J. made a comment which 56resulted
in an application by counsel for the appellant that he should disqualify
himself. Anderson, J. declined the application.
The Full Court of the
Family Court upheld his decision. Five members of the Bench speaking through
Gleeson, C.J., referred to the test applied in Australia in determining whether
a Judge was disqualified by reason of the appearance of bias, i.e. whether a fair-minded
lay observer might reasonably apprehend that the Judge might not bring an
impartial and unprejudiced mind to the resolution of the question require to be
decided and gave the following reasons for making a departure from the test
applied in England: "That test has been adopted, in preference to a differently
expressed test that has been applied in England, for the reason that it gives due
recognition to the fundamental principle that justice must both be done, and be
seen to be done. It is based upon the need for public confidence in the administration
of justice. "If fair-minded people reasonably apprehend or suspect that the
tribunal has prejudged the case, they cannot have confidence in the decision."
The hypothetical reasonable
observer of the judge's conduct is postulated in order to emphasise that the
test is objective, is founded in the need for public confidence in the
judiciary, and is not based purely upon the assessment by some judges of the
capacity or performance of their colleagues. At the same time, two things need to
be remembered: the observer is taken to be reasonable; and the person being
observed is "a professional judge whose training, tradition and oath or affirmation
requires [the judge] to discard the irrelevant, the immaterial and the
prejudicial"." In his separate opinion, Kirby J. referred to the judgments
of the House of Lords in R v. Gough (supra) as also R v. Bow Street 57Metropolitan
Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2) (supra) and
observed: "It is a "fundamental rule" of natural justice and an "abiding
value of our legal system" that every adjudicator must be free from bias. This
same principle has been accepted in the international law of human rights,
which supports the vigilant approach this court has taken to the possibility
that the "parties or the public might entertain a reasonable
apprehension" that an adjudicator may not be impartial.
Thus, Art 14.1 of the
International Covenant on Civil and Political Rights, the starting point for
consideration of the relevant requirements of international law, slates: All
persons shall be equal before the courts and tribunals. In the determination of
any criminal charge against him, or of his rights and obligations in a suit al
law, everyone shall be entitled to a fair and public hearing by a competent independent
and impartial tribunal established by law. In Karttunen v Finland, elaborating that
Article, the United Nations Human Rights Committee concluded that
"impartiality" of a court: . . . implies that judges must not harbour
preconceptions about the matter put before them, and . . . they must not act in
ways that promote the interests of one of the parties ... A trial flawed by the
participation of a judge who, under domestic statutes, should have been
disqualified cannot normally be considered to be fair or impartial within the
meaning of article 14. Appearance of justice:
The reason commonly given
for adopting the comparatively strict approach that has found favour in this court
in recent years is that it mirrors the importance attached by the law not only to
the actuality of justice (that is, whether the adjudicator had, in fact,
prejudged issues in the case) but also the appearance of impartiality both to
the parties and to the community. From the point of view of public policy, the practical
foundation for a relatively strict 58 approach lies in the obligation on an
appellate court to defend the purity of the administration of justice and
thereby to sustain the community's confidence in the system. In the words of Lord
Denning MR. "justice must be rooted in confidence: and confidence is destroyed
when right-minded people go away thinking: `The judge was biased'." (emphasis
supplied)
35.
In
India, the Courts have, by and large, applied the `real likelihood test' for deciding
whether a particular decision of the judicial or quasi judicial body is vitiated
due to bias. In Manak Lal v. Dr. Prem Chand Singhvi (supra), it was observed: "Every
member of a tribunal that sits to try issues in judicial or quasi-judicial proceedings
must be able to act judicially; and the essence of judicial decisions and
judicial administration is that judges should be able to act impartially, objectively
and without any bias. In such cases the test is not whether in fact a bias has
affected the judgment; the test always is and must be whether a litigant could reasonably
apprehend that a bias attributable to a member of the tribunal might have operated
against him in the final decision of the tribunal. It is in this sense that it
is often said that justice must not only be done but must also appear to be
done."
36.
In
A.K. Kraipak v. Union of India (supra), the rule of bias was discussed in some detail
in the context of selection for appointment to the Indian Forest Service. Although,
Naqishbund who was a candidate for selection to the All India Forest Service and
was also a member of the 59selection board did not sit in the selection board
at the time of his name was considered but participated in its deliberations when
the names of other candidates, who were his rivals were considered. Two
important questions considered by the Court were whether the rules of natural justice
were applicable in cases involving exercise of administrative power by the
public authorities and whether the selection was vitiated due to bias.
The Court answered both
the questions in affirmative. While answering the second question, the Court
noted that even though Naqishbund had not participated in the deliberations of
the committee when his name was considered, but he was present when the claims
of rivals were considered and observed: "At every stage of his
participation in the deliberations of the selection board there was a conflict between
his interest and duty. Under those circumstances it is difficult to believe
that he could have been impartial. The real question is not whether he was
biased. It is difficult to prove the state of mind of a person. Therefore what we
have to see is whether there is reasonable ground for believing that he was
likely to have been biased.... ..... In deciding the question of bias we have to
take into consideration human probabilities and ordinary course of human
conduct."
37.
In
S. Parthasarthi v. State of A.P. (1974) 3 SCC 459, Mathew, J. applied the `real
likelihood test' and restored the decree passed by the trial Court which
invalidated compulsory retirement of the appellant by way of punishment. In
paragraph 16 of the judgment, Mathew, J. observed: 60 "..........We think that
the reviewing authority must make a determination on the basis of the whole evidence
before it, whether a reasonable man would in the circumstances infer that there
is real likelihood of bias. The Court must look at the impression which other people
have. This follows from the principle that justice must not only be done but
seen to be done.
If right minded
persons would think that there is real likelihood of bias on the part of an
inquiring officer, he must not conduct the enquiry; nevertheless, there must be
a real likelihood of bias. Surmise or conjecture would not be enough. There
must exist circumstances from which reasonable men would think it probable or
likely that the inquiring officer will be prejudiced against the delinquent. The
Court will not inquire whether he was really prejudiced. If a reasonable man
would think on the basis of the existing circumstances that he is likely to be prejudiced,
that is sufficient to quash the decision......"
38.
In
Dr. G. Sarana v. University of Lucknow (supra), the Court referred to the judgments
in A.K. Kraipak v. Union of India (supra), S. Parthasarthi v. State of A.P.
(supra) and observed: ".........the real question is not whether a member of
an administrative board while exercising quasi-judicial powers or discharging quasi-judicial
functions was biased, for it is difficult to prove the mind of a person. What
has to be seen is whether there is a reasonable ground for believing that he
was likely to have been biased. In deciding the question of bias, human probabilities
and ordinary course of human conduct have to be taken into
consideration............"
39.
In
Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417, the Court while
reiterating that the judgment in A.K. Kraipak's case represents 61an important landmark
in the development of administrative law and has contributed in a large measure
to the strengthening of the rule of law, made a significant departure in cases involving
selection by the Public Service Commissions. All this is evident from paragraph
18 of the judgment, which is extracted below: "
We must straightaway
point out that A.K. Kaipak case is a landmark in the development of
administrative law and it has contributed in a large measure to the
strengthening of the rule of law in this country. We would not like to whittle
down in the slightest measure the vital principle laid down in this decision which
has nourished the roots of the rule of law and injected justice and fair play
into legality. There can be no doubt that if a Selection Committee is constituted
for the purpose of selecting candidates on merits and one of the members of the
Selection Committee is closely related to a candidate appearing for the selection,
it would not be enough for such member merely to withdraw from participation in
the interview of the candidate related to him but he must withdraw altogether
from the entire selection process and ask the authorities to nominate another person
in his place on the Selection Committee, because otherwise all the selections
made would be vitiated on account of reasonable likelihood of bias affecting
the process of selection.
But the situation
here is a little different because the selection of candidates to the Haryana
Civil Service (Executive) and Allied Services is being made not by any Selection
Committee constituted for that purpose but it is being done by the Haryana Public
Service Commission which is a Commission set up under Article 316 of the
Constitution. It is a Commission which consists of a Chairman and a specified number
of members and is a constitutional authority. We do not think that the principle
which requires that a member of a Selection Committee whose close relative is appearing
for selection should decline to become a member of the Selection Committee or withdraw
from it leaving it to the appointing authority to nominate another person in his
place, need be 62 applied in case of a constitutional authority like the Public
Service Commission, whether Central or State.
If a member of a
Public Service Commission were to withdraw altogether from the selection
process on the ground that a close relative of his is appearing for selection,
no other person save a member can be substituted in his place. And it may
sometimes happen that no other member is available to take the place of such
member and the functioning of the Public Service Commission may be affected. When
two or more members of a Public Service Commission are holding a viva voce examination,
they are functioning not as individuals but as the Public Service Commission. Of
course, we must make it clear that when a close relative of a member of a
Public Service Commission is appearing for interview, such member must withdraw
from participation in the interview of that candidate and must not take part in
any discussion in regard to the merits of that candidate and even the marks or
credits given to that candidate should not be disclosed to him." (emphasis
supplied)
40.
The
real likelihood test was again applied in Ranjit Thakur v. Union of India (1987)
4 SCC 611. In that case, the appellant had challenged his dismissal from
service on the ground of violation of the provision contained in Section 130 of
the Army Act, 1950. The facts of that case were that the appellant, who was already
serving sentence of 28 days rigorous imprisonment, is said to have committed
another offence for which he was subjected to summary court-martial and was dismissed
from service. Respondent No.4 who had earlier punished the appellant was a
member of the summary court-martial in terms of Section 130 of the Army Act,
1950. 63The appellant was entitled to object the presence of respondent No.4 in
the summary court-martial, but this opportunity was not given to him.
The writ petition
filed by the appellant was summarily dismissed by the High Court. This Court held
that violation of the mandate of Section 130 militates against and detracts from
the concept of a fair trial. The Court then proceeded to consider whether respondent
No.4 would have been biased against the appellant and observed: "The test of
real likelihood of bias is whether a reasonable person, in possession of relevant
information, would have thought that bias was likely and is whether respondent 4
was likely to be disposed to decide the matter only in a particular way.
It is the essence of a
judgment that it is made after due observance of the judicial process; that the
court or tribunal passing it observes, at least the minimal requirements of
natural justice; is composed of impartial persons acting fairly and without
bias and in good faith. A judgment which is the result of bias or want of
impartiality is a nullity and the trial "coram non-judice". As to the
tests of the likelihood of bias what is relevant is the reasonableness of the
apprehension in that regard in the mind of the party. The proper approach for
the Judge is not to look at his own mind and ask himself, however, honestly, "Am
I biased?"; but to look at the mind of the party before him."
41.
In
Secretary to Government, Transport Department v. Munuswamy Mudaliar 1988
(Supp.) SCC 651, this Court considered the question whether a party to the
arbitration agreement could seek change of an agreed arbitrator on the ground that
being an employee of the State Government, the arbitrator will not be able to decide
the dispute without bias. While reversing the judgment of the High Court which
had confirmed the order of learned Judge, City Civil Court directing
appointment of another person as an arbitrator, this Court observed: "Reasonable
apprehension of bias in the mind of a reasonable man can be a ground for removal
of the arbitrator. A predisposition to decide for or against one party, without
proper regard to the true merits of the dispute is bias. There must be reasonable
apprehension of that predisposition. The reasonable apprehension must be based on
cogent materials. See the observations of Mustill and Boyd, Commercial Arbitration
1982 Edn., p. 214. Halsbury's Laws of England, 4th Edn., Vol. 2, para 551, p.
282 describe that the test for bias is whether a reasonable intelligent man, fully
apprised of all the circumstances, would feel a serious apprehension of
bias." (emphasis supplied)
42.
In
Bihar State Mineral Development Corporation v. Encon Builders (I) (P) Ltd.
(2003) 7 SCC 418, the Court applied the rule of bias in the context of a
provision in the agreement which empowered the Managing Director of the appellant
to terminate the agreement and also act as arbitrator. This Court applied the
rule that a person cannot be a judge of his own cause and observed: 65 "Actual
bias would lead to an automatic disqualification where the decision-maker is
shown to have an interest in the outcome of the case. Actual bias denotes an arbitrator
who allows a decision to be influenced by partiality or prejudice and thereby deprives
the litigant of the fundamental right to a fair trial by an impartial tribunal."
43.
The
principles which emerge from the aforesaid decisions are that no man can be a
Judge in his own cause and justice should not only be done, but manifestly be
seen to be done. Scales should not only be held even but it must not be seen to
be inclined. A person having interest in the subject matter of cause is
precluded from acting as a Judge. To disqualify a person from adjudicating on
the ground of interest in the subject matter of lis, the test of real
likelihood of the bias is to be applied. In other words, one has to enquire as
to whether there is real danger of bias on the part of the person against whom such
apprehension is expressed in the sense that he might favour or disfavour a
party. In each case, the Court has to consider whether a fair minded and informed
person, having considered all the facts would reasonably apprehend that the Judge
would not act impartially.
To put it
differently, the test would be whether a reasonably intelligent man fully
apprised of all the facts would have a serious apprehension of bias. In cases
of non-pecuniary bias, the `real likelihood' test has been preferred over the
`reasonable suspicion' test and the Courts have consistently held that in 66deciding
the question of bias one has to take into consideration human probabilities and
ordinary course of human conduct. We may add that real likelihood of bias
should appear not only from the materials ascertained by the complaining party,
but also from such other facts which it could have readily ascertained and easily
verified by making reasonable inquiries.
44.
In
Halsbury's Laws of England [Vol. 29(2) 4th Edn. Reissue 2002, para 560 page
379], the test of disqualification due to apparent bias has been elucidated in
the following words: "560. Test of disqualification by apparent bias. The test
applicable in all cases of apparent bias, whether concerned with justices, members
of inferior tribunals, jurors or with arbitrators, is whether, having regard to
the relevant circumstances, there is a real possibility of bias on the part of the
relevant member of the tribunal in question, in the sense that he might
unfairly regard with favour, or disfavour, the case of a party to the issue under
consideration by him. In considering this question all the circumstances which have
a bearing on the suggestion that the judge or justice is biased must be
considered.
The question is
whether a fair minded and informed observer, having considered the facts, would
conclude that there was a real possibility that the tribunal was biased. Cases
may occur where all the justices may be affected by an appearance of bias, as, for
instance, where a fellow justice or the justices' clerk is charged with an
offence; where this occurs, it has been recommended that justices from another petty-
sessional division should deal with the case, or, if the offence is indictable,
that it should be committed for trial by a jury. It is because the court in the
majority of cases does not inquire whether actual bias exists that the maxim
that justice must not 67 only be done but be seen to be done is applied, and
the court gives effect to the maxim by examining all the material available and
concluding whether there is a real possibility of bias........."
45.
In
the light of the above, we shall now consider whether the petitioner can invoke
the rule of bias and seek invalidation of order dated 24.4.2011 and other
proceedings held by the Committee on the ground that respondent No.3 is biased and
prejudiced against him and as such he could not have been made as a member of
the Committee under Section 3(2) of the Act. It is not in dispute that respondent
No.3 participated in the seminar organised by the Bar Association of India of which
he was Vice-President. He demanded public inquiry into the charges levelled against
the petitioner before his elevation as a Judge of this Court. During the seminar,
many eminent advocates spoke against the proposed elevation of the petitioner
on the ground that there were serious allegations against him. Thereafter,
respondent No.3 drafted a resolution opposing elevation of the petitioner as a
Judge of this Court. He along with other eminent lawyers met the then Chief Justice
of India. These facts could give rise to reasonable apprehension in the mind of
an intelligent person that respondent No.3 was likely to be biased.
A reasonable,
objective and informed person may say that respondent No.3 would not have
opposed elevation of the petitioner if 68he was not satisfied that there was
some substance in the allegations levelled against him. It is true that the
Judges and lawyers are trained to be objective and have the capacity to decipher
grain from the chaff, truth from the falsehood and we have no doubt that respondent
No.3 possesses these qualities. We also agree with the Committee that objection
by both sides perhaps "alone apart from anything else is sufficient to confirm
his impartiality". However, the issue of bias of respondent No.3 has not
to be seen from the view point of this Court or for that matter the Committee. It
has to be seen from the angle of a reasonable, objective and informed person. What
opinion he would form! It is his apprehension which is of paramount importance.
From the facts narrated in the earlier part of the judgment it can be said that
petitioner's apprehension of likelihood of bias against respondent No.3 is
reasonable and not fanciful, though, in fact, he may not be biased.
46.
The
next question which merits consideration is whether order passed by the Committee
on 24.4.2011 should be quashed on the ground of reasonable likelihood of bias
of respondent No.3. While deciding this issue, we have to keep in mind that the
petitioner is not a layperson. He is well-versed in law and possesses a legally
trained mind. Further, for the last 15 69years, the petitioner has held constitutional
posts of a Judge and then as Chief Justice of the High Court. It is not the
pleaded case of the petitioner that he had no knowledge about the seminar organized
by the Bar Association of India on 28.11.2009 which was attended by eminent
advocates including two former Attorney Generals and in which respondent No.3 made
a speech opposing his elevation to this Court and also drafted resolution for the
said purpose. The proceedings of the seminar received wide publicity in the
print and electronic media.
Therefore, it can be
said that much before constitution of the Committee, the petitioner had become
aware of the fact that respondent No.3, who, as per the petitioner's own
version, had appreciated his work on the Bench and had sent congratulatory
message when his name was cleared by the Collegium for elevation to this Court,
had participated in the seminar and made speech opposing his elevation and also
drafted resolution for the said purpose. The Chairman had appointed respondent No.3
as member of the Committee keeping in view his long experience as an eminent
advocate and expertise in the field of constitutional law. The constitution of
the Committee was notified in the Official Gazette dated 15.1.2010 and was widely
publicised by almost all newspapers.
Therefore, it can reasonably
be presumed that the petitioner had become aware about the constitution of the
Committee, which included 70respondent No.3, in the month of January, 2010. In
his representation dated 12.5.2010, the petitioner claimed that he came to know
about the constitution and composition of the Committee through the print and
electronic media. Thus, at least on 12.5.2010 he was very much aware that
respondent No.3 had been appointed as a member of the Committee. Notwithstanding
this, he did not raise any objection apparently because after meeting respondent
No.3 on 6.12.2009 at the latter's residence, the petitioner felt satisfied that
the said respondent had nothing against him.
Therefore, belated plea
taken by the petitioner that by virtue of his active participation in the
meeting held by the Bar Association of India, respondent No.3 will be deemed to
be biased against him does not merit acceptance. It is also significant to note
that respondent No.3 had nothing personal against the petitioner. He had taken part
in the seminar as Vice-President of the Association.
The concern shown by senior
members of the Bar including respondent No.3 in the matter of elevation of the
petitioner, who is alleged to have misused his position as a Judge and as Chief
Justice of the High Court for material gains was not actuated by ulterior
motive. They genuinely felt that the allegations made against the petitioner
need investigation. After the seminar, respondent No.3 is not shown to have done
anything which may give slightest impression to any person of reasonable
prudence that he was 71ill-disposed against the petitioner. Rather, as per the petitioner's
own statement, he had met respondent No.3 at the latter's residence on
6.12.2009 and was convinced that the latter had nothing against him. This being
the position, it is not possible to entertain the petitioner's plea that
constitution of the Committee should be declared nullity on the ground that
respondent No.3 is biased against him and order dated 24.4.2011 be quashed.
47.
The
issue deserves to be considered from another angle. Admittedly, the petitioner raised
the plea of bias only after receiving notice dated 16.3.2011 which was
accompanied by statement of charges and the lists of documents and witnesses. The
petitioner's knowledgeful silence in this regard for a period of almost ten
months militates against the bona fides of his objection to the appointment of respondent
No.3 as member of the Committee. A person on the petitioner's standing can be presumed
to be aware of his right to raise an objection.
If the petitioner had
slightest apprehension that respondent No.3 had pre-judged his guilt or he was
otherwise biased, then, he would have on the first available opportunity
objected to his appointment as member of the Committee. The petitioner could have
done so immediately after publication of notification dated 15.1.2010. He could
have represented to the Chairman that investigation by a Committee of which
respondent No.3 was a member will not be fair and impartial because the former had
already presumed him to be guilty. We cannot predicate the result of the representation
but such representation would have given an opportunity to the Chairman to
consider the grievance made by the petitioner and take appropriate decision as he
had done in March, 2010 when respondent No.3 had sought recusal from the
Committee in the wake of demand made by a section of the Bar which had
erroneously assumed that the petitioner had consulted respondent No.3.
However, the fact of
the matter is that the petitioner never thought that respondent No.3 was
prejudiced or ill-disposed against him and this is the reason why he did not
raise objection till April, 2011 against the inclusion of respondent No.3 in
the Committee. This leads to an irresistible inference that the petitioner had waived
his right to object to the appointment of respondent No.3 as member of the
Committee. The right available to the petitioner to object to the appointment
of respondent No.3 in the Committee was personal to him and it was always open
to him to waive the same.
48.
In
Lachhu Mal v. Radhey Shyam, AIR 1971 SC 2213, the Court considered the question
whether the landlord can by way of agreement waive the exemption available to him
under U.P. (Temporary) Control of Rent and Eviction Act, 1947. In that case,
the landlord had entered into an agreement waiving the exemption available to him
under the Act. While dealing with the issue of waiver, this Court held: "The
general principle is that every one has a right to waive and to agree to waive
the advantage of a law or rule made solely for the benefit and protection of the
individual in his private capacity which may be dispensed with without infringing
any public right or public policy.
Thus the maxim which
sanctions the non-observance of the statutory provision is cuilibet licet renuntiare
juri pro se introducto. (See Maxwell on Interpretation of Statutes, Eleventh Edn.,
pp. 375 and 376). If there is any express prohibition against contracting out of
a statute in it then no question can arise of any one entering into a contract which
is so prohibited but where there is no such prohibition it will have to be seen
whether an Act is intended to have a more extensive operation as a matter of
public policy. In Halsbury's Laws of England, Vol. 8, Third Edn., it is stated
in para 248 at p. 143: "
As a general rule, any
person can enter into a binding contract to waive the benefits conferred upon
him by an Act of Parliament, or, as it is said, can contract himself out of the
Act, unless it can be shown that such an agreement is in the circumstances of
the particular case contrary to public policy. Statutory conditions may, however,
be imposed in such terms that they cannot be waived by agreement, and, in certain
circumstances, the legislature has expressly provided that any such agreement
shall be void." (emphasis supplied)
49.
In
Manak Lal v. Dr. Prem Chand Singhvi (supra), this Court held that the constitution
of the Tribunal was vitiated due to bias because 74Chairman of the Tribunal had
appeared against the appellant in a case but declined to nullify the action
taken against him on the recommendations of the Tribunal on the ground that he
will be deemed to have waived the right to raise objection of bias. Some of the
observations made in that case are extracted below: "...............
The alleged bias in a
member of the Tribunal does not render the proceedings invalid if it is shown
that the objection against the presence of the member in question had not been
taken by the party even though the party knew about the circumstances giving rise
to the allegations about the alleged bias and was aware of his right to challenge
the presence of the member in the Tribunal. It is true that waiver cannot always
and in every case be inferred merely from the failure of the party to take the
objection. Waiver can be inferred only if and after it is shown that the party knew
about the relevant facts and was aware of his right to take the objection in question.
As Sir John Romilly, M.R., has observed in Vyvyan v. Vyvyan "waiver or
acquiescence, like election, presupposes that the person to be bound is fully
cognizant of his rights, and, that being so, he neglects to enforce them, or chooses
one benefit instead of another, either, but not both, of which he might claim".
If, in the present case,
it appears that the appellant knew all the facts about the alleged disability
of Shri Chhangani and was also aware that he could effectively request the learned
Chief Justice to nominate some other member instead of Shri Chhangani and yet
did not adopt that course, it may well be that he deliberately took a chance to
obtain a report in his favour from the Tribunal and when he came to know that the
report had gone against him he thought better of his rights and raised this
point before the High Court for the first time. In other words, though the point
of law raised by Shri Daphtary against the competence of the Tribunal be sound,
it is still necessary for us to consider whether the appellant was precluded from
raising this point before the High Court by waiver or acquiescence.
From the record it is
clear that the appellant never raised this point before the Tribunal and the manner
in which this point was raised by him even before the High Court is somewhat significant.
The first ground of objection filed by the appellant against the Tribunal's report
was that Shri Chhangani had pecuniary and personal interest in the complainant Dr
Prem Chand. The learned Judges of the High Court have found that the
allegations about the pecuniary interest of Shri Chhangani in the present proceedings
are wholly unfounded and this finding has not been challenged before us by Shri
Daphtary. The learned Judges of the High Court have also found that the objection
was raised by the appellant before them only to obtain an order for a fresh enquiry
and thus gain time.
It may be conceded in
favour of Shri Daphtary that the judgment of the High Court does not in terms
find against the appellant on the ground of waiver though that no doubt appears
to be the substance of their conclusion. We have, however, heard Shri Daphtary's
case on the question of waiver and we have no hesitation in reaching the
conclusion that the appellant waived his objection deliberately and cannot now be
allowed to raise it." (emphasis supplied)
50.
In
Dhirendra Nath Gorai v. Sudhir Chandra AIR 1964 SC 1300, a three Judge Bench of
this Court considered the question whether the sale made without complying with
Section 35 of the Code of the Bengal Money Lenders Act, 1940 was nullity and whether
the objection against the violation of that section could be waived. After examining
the relevant provisions, the Court held: "A waiver is an intentional
relinquishment of a known right, but obviously an objection to jurisdiction cannot
be waived, for consent cannot give a court jurisdiction where there is none.
Even if there is
inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book
"On the Interpretation of Statutes", 11th Edn., a p. 357, describes
the rule thus: "Another maxim which sanctions the non-observance of a
statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone
has a right to waive and to agree to waive the advantage of a law or rule made solely
for the benefit and protection of the individual in his private capacity, which
may be dispensed with without infringing any public right or public
policy".
The same rule is
restated in "Craies on Statute Law", 6th Edn., at p. 269, thus: "As
a general rule, the conditions imposed by statutes which authorise legal
proceedings are treated as being indispensable to giving the court
jurisdiction. But if it appears that the statutory conditions were inserted by the
legislature simply for the security or benefit of the parties to the action themselves,
and that no public interests are involved, such conditions will not be considered
as indispensable, and either party may waive them without affecting the jurisdiction
of the court."
51.
In
conclusion, we hold that belated raising of objection against inclusion of
respondent No.3 in the Committee under Section 3(2) appears to be a calculated
move on the petitioner's part. He is an intelligent person and knows that in
terms of Rule 9(2)(c) of the Judges (Inquiry) Rules, 1969, the Presiding
Officer of the Committee is required to forward the report to the 77Chairman
within a period of three months from the date the charges framed under Section
3(3) of the Act were served upon him. Therefore, he wants to adopt every
possible tactic to delay the submission of report which may in all probability
compel the Committee to make a request to the Chairman to extend the time in
terms of proviso to Rule 9(2)(c). This Court or, for that reason, no Court can render
assistance to the petitioner in a petition filed with the sole object of
delaying finalisation of the inquiry.
52.
However,
keeping in view our finding on the issue of bias, we would request the Chairman
to nominate another distinguished jurist in place of respondent No.3. The proceedings
initiated against the petitioner have progressed only to the stage of framing
of charges and the Committee is yet to record its findings on the charges and submit
report. Therefore, nomination of another jurist will not hamper the proceedings
of the Committee and the reconstituted Committee shall be entitled to proceed
on the charges already framed against the petitioner.
53.
In
the result, the writ petition is dismissed with the aforesaid observations.
..........................................J.
[G.S. Singhvi]
..........................................J.
[Chandramauli Kumar Prasad]
New
Delhi
July
05, 2011.
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