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K. RAMASWAMY, J. – The petitioner, a practising advocate, has initiated the public interest
litigation under Article 32 of the Constitution seeking to issue an appropriate writ, order or direction
restraining permanently the Bar Council of Maharashtra and Goa (BCMG), Bombay Bar
Association (BBA) and the Advocates’ Association of Western India (AAWI), Respondents 2 to 4
respectively, coercing Justice A.M. Bhattacharjee (the 1st respondent), Chief Justice of Bombay
High Court, to resign from the office as Judge. He also sought an investigation by the Central
Bureau of Investigation etc. (Respondents 8 to 10) into the allegations made against the 1st
respondent and if the same are found true, to direct the 5th respondent, Speaker, Lok Sabha to
initiate action for his removal under Article 124(4) and (5) read with Article 218 of the Constitution
of India and Judges (Inqui3ry) Act, 1968 (for short, ‘the Act’). This Court on 24-3-1995 issued
notice to Respondents 2 to 4 only and rejected the prayer for interim direction to the President of
India and the Union of India (Respondents 6 and 7 respectively) not to give effect to the resignation
by the 1st respondent. We have also issued notice to the Attorney General for India and the
President of the Supreme Court Bar Association (SCBA). The BBA filed a counter-affidavit
through its President, Shri Iqbal MahomedaliChagla. Though Respondents 2 and 4 are represented
through counsel, they did not file any counter-affidavit. The SCBA informed the Court that its
newly elected office-bearers required time to take a decision on the stand to be taken and we
directed them to file their written submission. Shri F.S. Nariman, learned Senior Counsel appeared
for the BBA and Shri Harish N. Salve, learned Senior Counsel, appeared for AAWI, the 4th
respondent. The learned Attorney General also assisted the Court. We place on record our deep
appreciation for their valuable assistance.
- The petitioner in a well-documented petition stated and argued with commitment that the
news published in various national newspapers does prove that Respondents 2 to 4 had pressurised
the 1st respondent to resign from the office as Judge for his alleged misbehaviour. The Constitution
provides for independence of the Judges of the higher courts, i.e., the Supreme Court and the High
Courts. It also lays down in proviso (a) to clause (2) of Article 124; so too in Article 217(1) proviso
(a) and Article 124(4), procedure for voluntary resignation by a Judge, as well as for compulsory
removal, respectively from office in the manner prescribed therein and in accordance with the Act
and the Rules made thereunder. The acts and actions of Respondents 2 to 4 are unknown to law, i.e.,
removal by forced resignation, which is not only unconstitutional but also deleterious to the
independence of the judiciary. The accusations against the 1st respondent without proper
investigation by an independent agency seriously damage the image of judiciary and efficacy of
judicial adjudication and thereby undermine credibility of the judicial institution itself. Judges are
not to be judged by the Bar. Allowing adoption of such demands by collective pressure rudely
shakes the confidence and competence of judges of integrity, ability, moral vigour and ethical
firmness, which in turn, sadly destroys the very foundation of democratic polity. Therefore, the
pressure tactics by the Bar requires to be nipped in the bud. He, therefore, vehemently argued and
requested the Court to adopt such procedure which would safeguard the independence of the
judiciary and protect the judges from pressure through unconstitutional methods to demit the office. - Shri Chagla in his affidavit and Shri Nariman appearing for the BBA explained the
circumstances that led the BBA to pass the resolution requesting the 1st respondent to demit his
office as a Judge in the interest of the institution. It is stated in the affidavit that though initially he
had in his custody the documents to show that the 1st respondent had negotiated with Mr S.S.
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Musafir, Chief Executive of Roebuck Publishing, London and the acceptance by the 1st respondent
for publication and sale abroad of a book authored by him, viz., Muslim Law and the Constitution
for two years at a royalty of US $ 80,000 (Eighty thousand US Dollars) and an inconclusive
negotiation for US $ 75,000 (Seventy-five thousand US Dollars) for overseas publishing rights of
his book Hindu Law and the Constitution (2nd Edn.), he did not divulge the information but kept
confidential. From about late 1994, there was considerable agitation amongst the members of
Respondents 3 and 4 that certain persons whose names were known to all and who were seen in the
court and were being openly talked about, were bringing influence over the 1st respondent and
could “influence the course of judgments of the former Chief Justice of Bombay”. “The names of
such persons though known are not being mentioned here since the former Chief Justice of Bombay
has resigned as Chief Justice and Judge of the Bombay High Court.” It was also rumoured that “the
former Chief Justice of Bombay has been paid a large sum of money in foreign exchange
purportedly as royalty for a book written by him, viz. Muslim Law and the Constitution. The
amount of royalty appeared to be totally disproportionate to what a publisher abroad would be
willing to pay for foreign publication of a book which might be of academic interest within India
(since the book was a dissertation of Muslim Law in relation to the Constitution of India). There
was a growing suspicion at the Bar that the amount might have been paid for reasons “other than the
ostensible reason”. He further stated that the 1st respondent himself had discussed with the
Advocate General on 14-2-1995 impressing upon the latter that the Chief Justice “had decided to
proceed on leave from the end of February and would resign in April 1995”. The Advocate General
had conveyed it to Shri Chagla and other members of the Bar. By then, the financial dealings
referred to above were neither known to the public nor found mention in the press reports. Suddenly
on 19-2-1995 the advocates found to their surprise a press interview published in The Times of India
said to have been given by the 1st respondent stating that “he had not seriously checked the
antecedents of the publishers and it was possible that he had made a mistake in accepting the offer”.
He was not contemplating to resign from judgeship at that stage and was merely going on medical
leave for which he had already applied for and was granted. The BCMG passed a resolution on 19-
2-1995 seeking “resignation forthwith” of the 1st respondent. On 21-2-1995 the BBA received a
requisition for holding its general body meeting to discuss the financial dealings said to have been
had by the 1st respondent “for a purpose other than the ostensible purpose thereby raising a serious
doubt as to the integrity of the Chief Justice”. The meeting was scheduled to be held at 2.15 p.m. on
22-2-1995 as per its bye-laws. The 1st respondent appears to have rung up Shri Chagla in the
evening on 21-2-1995 but he was not available. Pursuant to a contact by Shri W.Y. Yande, the
President of AAWI, at the desire of Chief Justice to meet him, Shri Chagla and Shri Yande met the
1st respondent at his residence at 10.00 a.m. in the presence of two Secretaries of the 1st
respondent, who stated thus to Shri Chagla as put in his affidavit:
The Bar Council of Maharashtra and Goa had already shot an arrow and that the wound
was still fresh and requested me to ensure that he would not be hurt any further by a
resolution of the Bombay Bar Association. The 1st respondent informed me that he had
already agreed to resign and in fact called for and showed me a letter dated 17-2-1995
addressed by him to the Honourable the Chief Justice of India in which he proposed to go
on medical leave for a month and that at the end of the leave or even earlier he proposed to
tender his resignation. - They had reminded the 1st respondent of the assurance given to the Advocate General
expressing his desire to resign and he conveyed his personal inconveniences to be encountered etc.
The 1st respondent assured them that he would “resign within a week which resignation would be
effective some 10 or 15 days thereafter and that in the meanwhile he would not do any judicial work
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including delivery of any judgment”. Shri Chagla appears to have told the 1st respondent that
though he would not give an assurance, he would request the members of the Association to
postpone the meeting and he had seen that the meeting was adjourned to 5.00 p.m. on 1-3-1995. On
enquiry being made on 1-3-1995 from the Principal Secretary to the 1st respondent whether the 1st
respondent had tendered his resignation, it was replied in the negative which showed that the 1st
respondent had not kept his promise. Consequently, after full discussion, for and against, an
overwhelming majority of 185 out of 207 permanent members resolved in the meeting held on 1-3-
1995 at 5.00 p.m. demanding the resignation of the 1st respondent. - Since the 1st respondent has already resigned, the question is whether a Bar Council or Bar
Association is entitled to pass resolution demanding a Judge to resign, what is its effect on the
independence of the judiciary and whether it is constitutionally permissible. Shri Nariman
contended that the Supreme Court and the High Court are two independent constitutional
institutions. A High Court is not subordinate to the Supreme Court though constitutionally the
Supreme Court has the power to hear appeals from the decisions or orders or judgments of the High
Courts or any Tribunal or quasi-judicial authority in the country. The Judges and the Chief Justice
of a High Court are not subordinate to the Chief Justice of India. The constitutional process of
removal of a Judge as provided in Article 124(4) of the Constitution is only for proved
misbehaviour or incapacity. The recent impeachment proceedings against Justice V. Ramaswami
and its fall out do indicate that the process of impeachment is cumbersome and the result uncertain.
Unless corrective steps are taken against Judges whose conduct is perceived by the Bar to be
detrimental to the independence of the judiciary, people would lose faith in the efficacy of judicial
process. Bar being a collective voice of the court concerned has responsibility and owes a duty to
maintain the independence of the judiciary. It is its obligation to bring it to the notice of the Judge
concerned the perceived misbehaviour or incapacity and if it is not voluntarily corrected they have
to take appropriate measures to have it corrected. Bar is not aware of any other procedure than the
one under Article 124(4) of the Constitution and the Act. Therefore, the BBA, instead of proceeding
to the press, adopted democratic process to pass the resolution, in accordance with its bye-laws,
when all attempts made by it proved abortive. The conduct of the Judge betrayed their confidence in
his voluntary resignation. Consequently, the BBA was constrained to pass the said resolution.
Thereby it had not transgressed its limits. Its action is in consonance with its bye-laws and in the
best tradition to maintain independence of the judiciary. Shri Nariman also cited the instance of
non-assignment of work to four Judges of the Bombay High Court by its former Chief Justice when
some allegations of misbehaviour were imputed to them by the Bar. He, however, submitted that in
the present case the allegations were against the Chief Justice himself, and so, he could not have
been approached. He urged that if some guidelines could be laid down by this Court in such cases,
the same would be welcomed. - The counsel appearing for the BCMG, who stated that he is its member, submitted that when
the Bar believes that the Chief Justice has committed misconduct, as an elected body it is its duty to
pass a resolution after full discussion demanding the Judge to act in defence of independence of the
judiciary by demitting his office. - The learned Attorney General contended that any resolution passed by any Bar Association
tantamounts to scandalising the court entailing contempt of the court. It cannot coerce the Judge to
resign. The pressure brought by the Chief Justice of India upon the Judge would be constitutional
but it should be left to the Chief Justice of India to impress upon the erring Judge to correct his
conduct. This procedure would yield salutary effect. The Chief Justice of India would adopt such
procedure as is appropriate to the situation. He cited the advice tendered by Lord Chancellor of
England to Lord Denning, when the latter was involved in the controversy over his writing on the
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jury trial and the composition of the black members of the jury, to demit the office, which he did in
grace.
Rule of Law and Judicial Independence -Why need to be preserved? - The diverse contentions give rise to the question whether any Bar Council or Bar
Association has the right to pass resolution against the conduct of a Judge perceived to have
committed misbehaviour and, if so, what is its effect on independence of the judiciary. With a view
to appreciate the contentions in their proper perspective, it is necessary to have at the back of our
mind the importance of the independence of the judiciary. In a democracy governed by rule of law
under a written constitution, judiciary is sentinel on the qui vive to protect the fundamental rights
and to poise even scales of justice between the citizens and the State or the States inter se. Rule of
law and judicial review are basic features of the Constitution. As its integral constitutional structure,
independence of the judiciary is an essential attribute of rule of law. In S.P. Gupta v. Union of
India [1981 Supp SCC 87], this Court held that if there is one principle which runs through the
entire fabric of the Constitution it is the principle of the rule of law, and under the Constitution it is
the judiciary which is entrusted with the task of keeping every organ of the State within the limits of
the law and thereby making the rule of law meaningful and effective. Judicial review is one of the
most potent weapons in the armoury of law. The judiciary seeks to protect the citizen against
violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers.
The judiciary stands between the citizen and the State as a bulwark against executive excesses and
misuse or abuse of power by the executive. It is, therefore, absolutely essential that the judiciary
must be free from executive pressure or influence which has been secured by making elaborate
provisions in the Constitution with details. The independence of judiciary is not limited only to the
independence from the executive pressure or influence; it is a wider concept which takes within its
sweep independence from any other pressure and prejudices. It has many dimensions, viz.,
fearlessness of other power centres, economic or political, and freedom from prejudices acquired
and nourished by the class to which the judges belong.
Judicial individualism – Whether needs protection? - Independent judiciary is, therefore, most essential when liberty of citizen is in danger. It
then becomes the duty of the judiciary to poise the scales of justice unmoved by the powers (actual
or perceived) undisturbed by the clamour of the multitude. The heart of judicial independence is
judicial individualism. The judiciary is not a disembodied abstraction. It is composed of individual
men and women who work primarily on their own. Judicial individualism, in the language of
Justice Powell of the Supreme Court of United States in his address to the American Bar
Association, Labour Law Section on 11-8-1976, is “perhaps one of the last citadels of jealously
preserved individualism ….” - The arch of the Constitution of India pregnant from its Preamble, Chapter III (Fundamental
Rights) and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing
fundamental freedoms and to secure justice – social, economic and political – to every citizen
through rule of law. Existing social inequalities need to be removed and equality in fact is accorded
to all people irrespective of caste, creed, sex, religion or region subject to protective discrimination
only through rule of law. The Judge cannot retain his earlier passive judicial role when he
administers the law under the Constitution to give effect to the constitutional ideals. The
extraordinary complexity of modern litigation requires him not merely to declare the rights to
citizens but also to mould the relief warranted under given facts and circumstances and often
command the executive and other agencies to enforce and give effect to the order, writ or direction
or prohibit them to do unconstitutional acts. In this ongoing complex of adjudicatory process, the
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role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould
the law to suit the changing social and economic scenario to make the ideals enshrined in the
Constitution meaningful and a reality. Therefore, the Judge is required to take judicial notice of the
social and economic ramification, consistent with the theory of law. Thereby, the society demands
active judicial roles which formerly were considered exceptional but now a routine. The Judge must
act independently, if he is to perform the functions as expected of him and he must feel secure that
such action of his will not lead to his own downfall. The independence is not assured for the Judge
but to the judged. Independence to the Judge, therefore, would be both essential and proper.
Considered judgment of the court would guarantee the constitutional liberties which would thrive
only in an atmosphere of judicial independence. Every endeavour should be made to preserve
independent judiciary as a citadel of public justice and public security to fulfil the constitutional
role assigned to the Judges. - The Founding Fathers of the Constitution advisedly adopted a cumbersome process of
impeachment as a mode to remove a Judge from office for only proved misbehaviour or incapacity
which implies that impeachment process is not available for minor abrasive behaviour of a Judge. It
reinforces that independence to the Judge is of paramount importance to sustain, strengthen and
elongate rule of law. Parliament sparingly resorts to the mechanism of impeachment designed under
the Constitution by political process as the extreme measure only upon a finding of proved
misbehaviour or incapacity recorded by a committee constituted under Section 3 of the Act by way
of address to the President in the manner laid down in Article 124(4) and (5) of the Constitution, the
Act and the Rules made thereunder. - In all common law jurisdictions, removal by way of impeachment is the accepted norm for
serious acts of judicial misconduct committed by a Judge. Removal of a Judge by impeachment was
designed to produce as little damage as possible to judicial independence, public confidence in the
efficacy of judicial process and to maintain authority of courts for its effective operation. - In United States, the Judges appointed under Article III of the American Constitution could
be removed only by impeachment by the Congress. The Congress enacted the Judicial Councils
Reform and Judicial Conduct and Disability Act of 1980 (the 1980 Act) by which Judicial Council
was explicitly empowered to receive complaints about the judicial conduct “prejudicial to the
effective and expeditious administration of the business of the courts, or alleging that such a judge
or magistrate is unable to discharge all the duties of office by reason of mental or physical
disability”. - Jeffrey N. Barr and Thomas E. Willging conducted research on the administration of the
1980 Act and in their two research volumes, they concluded that “several Chief Judges view the Act
as remedial legislation designed not to punish Judges but to correct aberrant behaviour and provide
opportunity for corrective action as a central feature of the Act”. From 1980 to 1992, 2388
complaints were filed. 95 per cent thereof resulted in dismissal. 1.7 per cent of the complaints ended
in either dismissal from service or corrective action of reprimands – two of public reprimands and
one of private reprimand. Two cases were reported to judicial conference by the judicial councils
certifying that the grounds might exist for impeachment. - Our Constitution permits removal of the Judge only when the motion was carried out with
requisite majority of both the Houses of Parliament recommending to the President for removal. In
other words, the Constitution does not permit any action by any agency other than the initiation of
the action under Article 124(4) by Parliament. In Sub-Committee on Judicial Accountability v.
Union of India [(1991) 4 SCC 699],this Court at p. 54 held that the removal of a Judge culminating
in the presentation of an address by different Houses of Parliament to the President, is committed to
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Parliament alone and no initiation of any investigation is possible without the initiative being taken
by the Houses themselves. At p. 71 it was further held that the constitutional scheme envisages
removal of a Judge on proved misbehaviour or incapacity and the conduct of the Judge was
prohibited to be discussed in Parliament by Article 121. Resultantly, discussion of the conduct of a
Judge or any evaluation or inferences as to its merit is not permissible elsewhere except during
investigation before the Inquiry Committee constituted under the Act for this purpose. - Articles 124(4) and 121 would thus put the nail squarely on the projections, prosecutions or
attempts by any other forum or group of individuals or Associations, statutory or otherwise, either
to investigate or inquire into or discuss the conduct of a Judge or the performance of his duties and
on/off court behaviour except as per the procedure provided under Articles 124(4) and (5) of the
Constitution, and Act and the Rules. Thereby, equally no other agency or authority like the CBI,
Ministry of Finance, the Reserve Bank of India (Respondents 8 to 10) as sought for by the
petitioner, would investigate into the conduct or acts or actions of a Judge. No mandamus or
direction would be issued to the Speaker of Lok Sabha or Chairman of Rajya Sabha to initiate
action for impeachment. It is true, as contended by the petitioner, that in K. Veeraswamiv. Union of
India [(1991) 3 SCC 655], majority of the Constitution Bench upheld the power of the police to
investigate into the disproportionate assets alleged to be possessed by a Judge, an offence under
Section 5 of the Prevention of Corruption Act, 1947 subject to prior sanction of the Chief Justice of
India to maintain independence of the judiciary. By interpretive process, the Court carved out
primacy to the role of the Chief Justice of India, whose efficacy in a case like one at hand would be
considered at a later stage.
Duty of the Judge to maintain high standard of conduct. Its judicial individualism — Whether
protection imperative? - Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a
Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness
and impervious to corrupt or venial influences. He is required to keep most exacting standards of
propriety in judicial conduct. Any conduct which tends to undermine public confidence in the
integrity and impartiality of the court would be deleterious to the efficacy of judicial process.
Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code
of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards
expected of a higher judicial functionary, as wholesome standard of conduct which would generate
public confidence, accord dignity to the judicial office and enhance public image, not only of the
Judge but the court itself. It is, therefore, a basic requirement that a Judge’s official and personal
conduct be free from impropriety; the same must be in tune with the highest standard of propriety
and probity. The standard of conduct is higher than that expected of a layman and also higher than
that expected of an advocate. In fact, even his private life must adhere to high standards of probity
and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to
seek shelter from the fallen standard in the society. - InKrishna Swami v. Union of India [(1992) 4 SCC 605],one of us (K. Ramaswamy, J.)
held that the holder of office of the Judge of the Supreme Court or the High Court should, therefore,
be above the conduct of ordinary mortals in the society. The standards of judicial behaviour, both
on and off the Bench, are normally high. There cannot, however, be any fixed or set principles, but
an unwritten code of conduct of well-established traditions is the guidelines for judicial conduct.
The conduct that tends to undermine the public confidence in the character, integrity or impartiality
of the Judge must be eschewed. It is expected of him to voluntarily set forth wholesome standards
of conduct reaffirming fitness to higher responsibilities.
258 - To keep the stream of justice clean and pure, the Judge must be endowed with sterling
character, impeccable integrity and upright behaviour. Erosion thereof would undermine the
efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons,
therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak
character which may be found in those in other walks of life. They should be men of fighting faith
with tough fibre not susceptible to any pressure, economic, political or of any sort. The actual as
well as the apparent independence of judiciary would be transparent only when the office-holders
endow those qualities which would operate as impregnable fortress against surreptitious attempts to
undermine the independence of the judiciary. In short, the behaviour of the Judge is the bastion for
the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom
of the rule of law.
Scope and meaning of ‘misbehaviour’ in Article 124(4) - Article 124(4) of the Constitution sanctions action for removal of a Judge on proved
misbehaviour or incapacity. The word ‘misbehaviour’ was not advisedly defined. It is a vague and
elastic word and embraces within its sweep different facets of conduct as opposed to good conduct.
In the Law Lexicon by P. Ramanatha Aiyar, 1987 Edn. at p. 821, collected from several decisions,
the meaning of the word ‘misconduct’, is stated to be vague and relative term. Literally, it means
wrong conduct or improper conduct. It has to be construed with reference to the subject-matter and
the context wherein the term occurs having regard to the scope of the Act or the statute under
consideration. In the context of disciplinary proceedings against a solicitor, the word misconduct
was construed as professional misconduct extending to conduct “which shows him to be unworthy
member of the legal profession”. In the context of misrepresentation made by a pleader, who
obtained adjournment of a case on grounds to his knowledge to be false a Full Bench of the Madras
High Court in FirstGrade Pleader, Re [AIR 1931 Mad 422], held that if a legal practitioner
deliberately made, for the purpose of impeding the course of justice, a statement to the court which
he believed to be untrue and thereby gained an advantage for his client, he was guilty of gross
improper conduct and as such rendered himself liable to be dealt with by the High Court in the
exercise of its disciplinary jurisdiction. Misconduct on the part of an arbitrator was construed to
mean that misconduct does not necessarily comprehend or include misconduct of a fraudulent or
improper character, but it does comprehend and include action on the part of the arbitrator which is,
upon the face of it, opposed to all rational and reasonable principles that should govern the
procedure of any person who is called upon to decide upon questions in difference and dispute
referred to him by the parties. Misconduct in office was construed to mean unlawful behaviour or
include negligence by public officer, by which the rights of the party have been affected. In Krishna
Swamicase, one of us, K. Ramaswamy, J., considered the scope of ‘misbehaviour’ in Article 124(4)
and held in para 71 that:
Every act or conduct or even error of judgment or negligent acts by higher judiciary per
se does not amount to misbehaviour. Wilful abuse of judicial office, wilful misconduct in
the office, corruption, lack of integrity, or any other offence involving moral turpitude
would be misbehaviour. Misconduct implies actuation of some degree of mens rea by the
doer. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform the
judicial duties of the Judge or wilful abuse of the office dolus malus would be
misbehaviour. Misbehaviour would extend to conduct of the Judge in or beyond the
execution of judicial office. Even administrative actions or omissions too need
accompaniment of mens rea. - Guarantee of tenure and its protection by the Constitution would not, however, accord
sanctuary for corruption or grave misbehaviour. Yet every action or omission by a judicial officer in
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the performance of his duties which is not a good conduct necessarily, may not be misbehaviour
indictable by impeachment, but its insidious effect may be pervasive and may produce deleterious
effect on the integrity and impartiality of the Judge. Every misbehaviour in juxtaposition to good
behaviour, as a constitutional tautology, will not support impeachment but a misbehaviour which is
not a good behaviour may be improper conduct not befitting to the standard expected of a Judge.
Threat of impeachment process itself may swerve a Judge to fall prey to misconduct but it serves
disgrace to use impeachment process for minor offences or abrasive conduct on the part of a Judge.
The bad behaviour of one Judge has a rippling effect on the reputation of the judiciary as a whole.
When the edifice of judiciary is built heavily on public confidence and respect, the damage by an
obstinate Judge would rip apart the entire judicial structure built in the Constitution. - Bad conduct or bad behaviour of a Judge, therefore, needs correction to prevent erosion of
public confidence in the efficacy of judicial process or dignity of the institution or credibility to the
judicial office held by the obstinate Judge. When the Judge cannot be removed by impeachment
process for such conduct but generates widespread feeling of dissatisfaction among the general
public, the question would be who would stamp out the rot and judge the Judge or who would
impress upon the Judge either to desist from repetition or to demit the office in grace? Who would
be the appropriate authority? Who would be the principal mover in that behalf? The hiatus between
bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion of public
confidence in the efficacy of judicial process. Whether the Bar of that Court has any role to play
either in an attempt to correct the perceived fallen standard or is entitled to make a demand by a
resolution or a group action to pressurise the Judge to resign his office as a Judge? The resolution to
these questions involves delicate but pragmatic approach to the questions of constitutional law.
Role of the Bar Council or Bar Associations – Whether unconstitutional? - The Advocates Act, 1961 gave autonomy to a Bar Council of a State or Bar Council of
India and Section 6(1) empowers them to make such action deemed necessary to set their house in
order, to prevent fall in professional conduct and to punish the incorrigible as not befitting the noble
profession apart from admission of the advocates on its roll. Section 6(1)(c) and rules made in that
behalf, Sections 9, 35, 36, 36-B and 37 enjoin it to entertain and determine cases of misconduct
against advocates on its roll. The members of the judiciary are drawn primarily and invariably from
the Bar at different levels. The high moral, ethical and professional standards among the members
of the Bar are preconditions even for high ethical standards of the Bench. Degeneration thereof
inevitably has its eruption and tends to reflect the other side of the coin. The Bar Council, therefore,
is enjoined by the Advocates Act to maintain high moral, ethical and professional standards which
of late is far from satisfactory. Their power under the Act ends thereat and extends no further.
Article 121 of the Constitution prohibits discussion by the members of Parliament of the conduct of
any Judge of the Supreme Court or of High Court in the discharge of his duties except upon a
motion for presenting an address to the President praying for the removal of the Judge as provided
under Article 124(4) and (5) and in the manner laid down under the Act, the Rules and the rules of
business of Parliament consistent therewith. By necessary implication, no other forum or fora or
platform is available for discussion of the conduct of a Judge in the discharge of his duties as a
Judge of the Supreme Court or the High Court, much less a Bar Council or group of practising
advocates. They are prohibited to discuss the conduct of a Judge in the discharge of his duties or to
pass any resolution in that behalf. - Section 2(c) of the Contempt of Courts Act, 1971, defines “criminal contempt” to mean
publication whether by words spoken or written, signs, visible representations or otherwise of any
matter or the doing of any act whatsoever which scandalises or tends to scandalise, lowers or tends
to lower the authority of any court or prejudices or interferes or tends to interfere with the due
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course of any judicial proceeding, or interferes or tends to interfere with or obstructs or tends to
obstruct the administration of justice in any other manner.
Freedom of expression and duty of Advocate - It is true that freedom of speech and expression guaranteed by Article 19(1)(a) of the
Constitution is one of the most precious liberties in any democracy. But equally important is the
maintenance of respect for judicial independence which alone would protect the life, liberty and
reputation of the citizen. So the nation’s interest requires that criticism of the judiciary must be
measured, strictly rational, sober and proceed from the highest motives without being coloured by
partisan spirit or pressure tactics or intimidatory attitude. The Court must, therefore, harmonise
constitutional values of free criticism and the need for a fearless curial process and its presiding
functionary, the Judge. If freedom of expression subserves public interest in reasonable measure,
public justice cannot gag it or manacle it; but if the court considered the attack on the Judge or
Judges scurrilous, offensive, intimidatory or malicious, beyond condonable limits, the strong arm of
the law must strike a blow on him who challenges the supremacy of the rule of the law by fouling
its source and stream. The power to punish the contemner is, therefore, granted to the court not
because Judges need the protection but because the citizens need an impartial and strong judiciary. - It is enough if all of us bear this in mind while expressing opinions on courts and Judges.
But the question that still remains is when the Bar of the Court, in which the Judge occupies the seat
of office, honestly believes that the conduct of the Judge or of the Bench fouls the fountain of
justice, or undermines or tends to undermine the dignity expected of a Judge and the people are
tending to disbelieve the impartiality or integrity of the Judge, who should bear the duty and
responsibility to have it/them corrected so as to restore the respect for judiciary? - In Brahma Prakash Sharma v. State of U.P. [AIR 1954 SC 10], the Bar Association
passed resolutions and communicated to the superior authorities that certain judicial officers were
incompetent due to their conduct in the court and High Court took action for contempt of the court.
The question was whether the members of the Executive Committee of the Bar Association had
committed contempt of the court? This Court held that the attack on a Judge is a wrong done to the
public and if it tends to create apprehension in the minds of the people regarding the integrity,
ability or fairness of the Judge and to deter actual and prospective litigants from placing complete
reliance upon the court’s administration of justice, or if it is likely to cause embarrassment in the
mind of the Judge himself in the discharge of his judicial duties, it would be scandalising the court
and be dealt with accordingly. - The threat of action on vague grounds of dissatisfaction would create a dragnet that would
inevitably sweep into its grasp the maverick, the dissenter, the innovator, the reformer – in one word
the unpopular. Insidious attempts pave way for removing the inconvenient. Therefore, proper care
should be taken by the Bar Association concerned. First, it should gather specific, authentic and
acceptable material which would show or tend to show that conduct on the part of a Judge creating
a feeling in the mind of a reasonable person doubting the honesty, integrity, impartiality or act
which lowers the dignity of the office but necessarily, is not impeachable misbehaviour. In all
fairness to the Judge, the responsible office-bearers should meet him in camera after securing
interview and apprise the Judge of the information they had with them. If there is truth in it, there is
every possibility that the Judge would mend himself. Or to avoid embarrassment to the Judge, the
office-bearers can approach the Chief Justice of that High Court and apprise him of the situation
with material they have in their possession and impress upon the Chief Justice to deal with the
matter appropriately.
Primacy of the Chief Justice of India
261 - It is true that this Court has neither administrative control over the High Court nor power on
the judicial side to enquire into the misbehaviour of a Chief Justice or Judge of a High Court. When
the Bar of the High Court concerned reasonably and honestly doubts the conduct of the Chief
Justice of that Court, necessarily the only authority under the Constitution that could be tapped is
the Chief Justice of India, who in common parlance is known as the head of the judiciary of the
country. It is of importance to emphasise here that impeachment is meant to be a drastic remedy and
needs to be used in serious cases. But there must exist some other means to ensure that Judges do
not abuse the trust the society has in them. It seems to us that self-regulation by the judiciary is the
only method which can be tried and adopted. Chief Justice of India is the first among the Judges.
Under Articles 124(2) and 217(1), the President of India always consults the Chief Justice of India
for appointment of the Judges in the Supreme Court and High Courts. Under Article 222, the
President transfers Judges of High Courts in consultation with the Chief Justice of India. In
Supreme Court Advocates-on-Record Assn. v. Union of India [(1993) 4 SCC 441], it was
reinforced and the Chief Justice of India was given centre stage position. The primacy and
importance of the office of the Chief Justice was recognised judicially by this Court in
Veeraswamicase. This Court, while upholding power to register a case against a retired Chief
Justice of the High Court, permitted to proceed with the investigation for the alleged offence under
Section 5 of the Prevention of Corruption Act. The Constitution Bench per majority, however, held
that the sanction and approval of the Chief Justice of India is a condition precedent to register a case
and investigate into the matter and sanction for prosecution of the said Judge by the President after
consultation with the Chief Justice of India. - In Sub-Committee on Judicial Accountability also the same primacy had been accorded to
the Chief Justice at p. 72 thus:
“It would also be reasonable to assume that the Chief Justice of India is expected to
find a desirable solution in such a situation to avoid embarrassment to the learned Judge
and to the institution in a manner which is conducive to the independence of judiciary and
should the Chief Justice of India be of the view that in the interests of the institution of
judiciary it is desirable for the learned Judge to abstain from judicial work till the final
outcome under Article 124(4), he would advise the learned Judge accordingly. It is further
reasonable to assume that the concerned learned Judge would ordinarily abide by the
advice of the Chief Justice of India.” - Bearing all the above in mind, we are of the considered view that where the complaint
relates to the Judge of the High Court, the Chief Justice of that High Court, after verification, and if
necessary, after confidential enquiry from his independent source, should satisfy himself about the
truth of the imputation made by the Bar Association through its office-bearers against the Judge and
consult the Chief Justice of India, where deemed necessary, by placing all the information with him.
When the Chief Justice of India is seized of the matter, to avoid embarrassment to him and to allow
fairness in the procedure to be adopted in furtherance thereof, the Bar should suspend all further
actions to enable the Chief Justice of India to appropriately deal with the matter. This is necessary
because any action he may take must not only be just but must also appear to be just to all
concerned, i.e., it must not even appear to have been taken under pressure from any quarter. The
Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after
being satisfied about the correctness and truth touching the conduct of the Judge, may tender such
advice either directly or may initiate such action, as is deemed necessary or warranted under given
facts and circumstances. If circumstances permit, it may be salutary to take the Judge into
confidence before initiating action. On the decision being taken by the Chief Justice of India, the
matter should rest at that. This procedure would not only facilitate nipping in the bud the conduct of
262
a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of
the rule of law and respect for the judiciary, but would also avoid needless embarrassment of
contempt proceedings against the office-bearers of the Bar Association and group libel against all
concerned. The independence of judiciary and the stream of public justice would remain pure and
unsullied. The Bar Association could remain a useful arm of the judiciary and in the case of sagging
reputation of the particular Judge, the Bar Association could take up the matter with the Chief
Justice of the High Court and await his response for the action taken thereunder for a reasonable
period. - In case the allegations are against Chief Justice of a High Court, the Bar should bring them
directly to the notice of the Chief Justice of India. On receipt of such complaint, the Chief Justice of
India would in the same way act as stated above qua complaint against a Judge of the High Court,
and the Bar would await for a reasonable period the response of the Chief Justice of India. - It would thus be seen that yawning gap between proved misbehaviour and bad conduct
inconsistent with the high office on the part of a non-cooperating Judge/Chief Justice of a High
Court could be disciplined by self-regulation through in-house procedure. This in-house procedure
would fill in the constitutional gap and would yield salutary effect. Unfortunately, recourse to this
procedure was not taken in the case at hand, may be, because of absence of legal sanction to such a
procedure.
