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TMI Blog1995 (9) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... ]. This Court on March 24, 1995 issued notice to respondents 2 to 4 only and rejected the prayer for interim direction to the President of India and the Union of India [respondents 6 and 7 respectively] not to give effect to the resignation by the 1st respondent. We have also issued notice to the Attorney General for India and the President of the Supreme Court Bar Association [SCBA]. The BBA filed a counter-affidavit through its President, Sri Iqbal Mahomedali Chagla. Though respondents 2 and 4 are represented through counsel, they did not file any counter-affidavit. The SCBA informed the Court that its newly elected office bearers required time to take a decision on the stand to be taken and we directed them to file their written submissions. Shri F.S. Narirnan, 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. 2. The SCBA, instead of filing written submissions sent a note with proposals to reopen the case; to issue notice to all the Bar Associations in the country and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent for publication and sale abroad of a book authored by him, viz., Muslim Law and the Constitution for two years at a royalty of US $80,000 [Eighty thousand U.S. Dollars] and an inconclusive negotiation for US$75,000 [Seventy five thousand U.S. Dollars] for overseas publishing rights of his book Hindu Law and the Constitution [2nd Edn.], he did not divulge the information but kept confidential. From about late 1994, there was considerable agitation amongst the members of respondents 3 and 4 that certain persons whose names were known to all and who were seen in the court and were being openly talked about, were bringing influence over the 1st respondent and could influence the course of judgments of the former Chief Justice of Bombay . The names of such persons though known are not being mentioned here since the former Chief Justice of Bombay has resigned as Chief Justice and Judge of the Bombay High Court . It was also rumored 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 disproportio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The 1st respondent informed me that he had already agreed to resign and in fact called for and showed me a letter dated 17th February, 1995 addressed by him to the Honourable the Chief Justice of India in which he proposed to go on medical leave for a month and that at the end of the leave or even earlier he proposed to tender his resignation. 5. They had reminded the 1st respondent of the assurance given to the Advocate General expressing his desire to resign and he conveyed his personal inconveniences to be encountered etc. The 1st respondent assured them that he would resign within. a week which resignation would be effective some 10 or 15 days thereafter and that in the meanwhile he would not do any judicial work including delivery of any judgment . Shri Chagla appears to have told the 1st respondent that though he would not give an assurance, he would request the members of the Association to postpone the meeting and he had seen that the meeting was adjourned to 5.00 p.m. of March 1, 1995. On enquiry being made on March 1, 1995 from the Principal Secretary to the 1st respondent whether the 1st respondent had tendered his resignation, it was replied in negative which s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 misbehavior 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. 7. 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. 8. Shri Salve argued that independence of the judiciary is paramount. Judges should not be kept under pressure. Such procedure which would be conducive to maintain independence of the judiciary and at the same time would nib the evil in the bud, needs to be adopted. The tendencies of unbecoming conduct on the part of erring Judges would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the armoury of law. The judiciary seeks to protect the citizen against violation of his constitutional or legal right or misuse or abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive. It is, therefore, absolutely essential that the judiciary must be free from executive pressure or influence which has been secured by making elaborate provisions in the Constitution with details. The independence of judiciary is not limited only to the independence from the executive pressure or influence; it is a wider concept which takes within its sweep independence from any other pressure and prejudices. It has many dimensions, viz., fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the judges belong. Judicial individualism - whether needs protection? 11. Independent judiciary is, therefore, most essential when liberty of citizen is in danger. It then become the duty of the judiciary to poise the scales of justice unmoved by the powers (actual or perceived) undisturbed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution. Federal Judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by Congress. But I search the Constitution in vain for any power of surveillance which other federal judges have over those aberrations. Some judges may be displeasing to those who walk in more measured, conservative steps. But those idiosyncrasies can be of no possible constitutional concern to other federal judges. It is time to put an end to the monstrous practices that seem about to overtake us... . 13. In Chandler, a United States District Judge had filed a motion for leave to file a petition for a writ of mandamus or alternatively a writ of prohibition addressed to the Judicial Council of the Tenth Circuit. His petition sought resolution of questions of first impression concerning, inter alia, the scope and constitutionality of the powers of the Judicial Councils under 28 USC 88 . The Judicial Council of each federal circuit is under that statute, composed of the active circuit judges of the circuit. Petitioner asked the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but now a routine. The Judge must act independently, if he is to perform the functions as expected of him and he must feel secure that such action of him will not lead to his own downfall. The independence is not assured for the Judge but to the judged. Independence to the Judge, therefore, would be both essential and proper. Considered judgment of the court would guarantee the Constitutional liberties which would thrive only in an atmosphere of judicial independence. Every endeavour should be made to preserve independent judiciary as a citadel of public justice and public security of fulfil the constitutional role assigned to the Judges. 15. The founding fathers of the Constitution advisedly adopted cumbersome process of impeachment as a mode to remove a Judge from office for only proved misbehavior or incapacity which implies that impeachment process is not available for minor abrasive behavior 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 findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. 1991CriLJ1438 , this Court at page 54 held that the removal of a Judge culminating in the presentation of an address by different Houses of Parliament to the President, is committed to the Parliament alone and no initiation of any investigation is possible without the initiative being taken by the Houses themselves. At page 71 it was further held that the constitutional scheme envisages removal of a Judge on proved misbehavior or incapacity and the conduct of the Judge was prohibited to be discussed in the Parliament by Article 121. Resultantly, discussion of the conduct of a judge or any evaluation or inferences as to its merit is not permissible elsewhere except during investigation before the Inquiry Committee constituted under the Act for his purpose. 20. 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 enquiry into or discuss the conduct of a Judge or the performance of his duties and on/off court behavior except as per the procedure provided Under Articles 124(4) and (5) of the Constitution, and Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society. 22. In Krishna Swami v. Union of India and Ors. AIR1993SC1407 , 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 behavior, 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. 23. To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behavior. 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 mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 behavior or include negligence by public officer, by which the rights of the party have been affected. In Krishna Swami's case (supra), one of us, K. Ramaswamy, J., considered the scope of 'misbehavior' in Article 124(4) and held in paragraph 71 that every act or conduct or even error of judgment or negligent acts by higher judiciary per se does not amount to misbehavior. Willful abuse of judicial office, wilful misconduct in the office, corruption, lack of integrity, or any other offence involving moral turpitude would be misbehavior. 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 Judges or wilful abuse of the office dolus malus would be misbehavior. Misbehavior would extend to conduct of the Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agmatic approach to the questions of constitutional law. Role of the Bar Council or Bar Associations - whether unconstitutional? 27. The Advocates Act, 1961 gave autonomy to a Bar Council of a State or Bar Council of India and Section 6(1) empowers them to make such action deemed necessary to set their house in order, to prevent fall in professional conduct and to punish the incorrigible as not befitting to the noble profession apart from admission of the advocates on its roll. Section 6(1)(c) and rules made in that behalf, Sections 9, 35, 36, 36B and 37 enjoin it to entertain and determine cases of misconduct against advocates on its roll. The members of the judiciary are drawn primarily and invariably from the Bar at different levels. The high moral, ethical and professional standards among the members of the Bar are preconditions even for high ethical standard of the Bench. Degeneration thereof inevitably has its eruption and tends to reflect the other side of the coin. The Bar Council, therefore, is enjoined by the Advocates Act to maintain high moral, ethical and professional standards, which of late is far from satisfactory. Their power under the Act ends thereat and ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct or of the conduct of a court even if strongly worded, is, however, not contempt, provided that the criticism is fair, temperate and made in good faith and is not directed to the personal character of a Judge or to the impartiality of a Judge or court. 30. In Oswald's Contempt of Court [3rd Edn.J 1993 at page 50 it is stated that libel upon courts is made contempt to keep a blaze of glory around them, and to deter people from attempting to render them contemptible in the eyes of the public.... A libel upon a court is a reflection upon the King, and telling the people that the administration of justice is in week or corrupt hands, that the fountain of justice itself is tainted, and consequently that judgments which stream out of that fountain must be impure and contaminated . A libel upon a Judge in his judicial capacity is a contempt, whether it concerns what he did in court, or what he did judicially out of it. At page 91, it is stated that all publications which offend against the dignity of the court, or are calculated to prejudice the course of justice, will constitute contempt. One of the natures of offences is scandalising the courts. In Contempt of Court [2nd Ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imputations of improper or corrupt judicial conduct. The Contempt of Courts Act, 1971 engrafted suitable amendments accordingly. Freedom of expression and duty of Advocate: 31. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but necessarily, is not impeachable misbehavior. 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 35. It is true that this Court has neither administrative control over the High Court nor power on the judicial side to enquire into the misbehavior 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paras 27 to 72 relate to judicial removal and discipline. Para 31 says that the head of the Court may legitimately have supervisory powers to control judges on administrative matters. 38. In Chilling Judicial Independence , living R. Kaufman, Chief Judge, U.S. Court of Appeals for the Second Circuit [See: Yale Law Journal [Vol. 88]1978-79 p. 681 at page 712] stated that it seems unwise to allow bureaucrats, whether lawyers or not, to determine, even in part, the fate of Judges. The sheer magnitude of the disciplinary engine would be a major nuisance. Judges frequently receive hostile or threatening correspondence from disappointed litigants. Creation of a new disciplinary scheme would transform a minor annoyance into a constant threat of official action. At the very least, it would require time-consuming responses by the Judge. Even if the Judge were not eventually condemned, the mere invocation of the statutory provisions might taint him with a devastating stigma. The vestment of authority might remain but the aura of respect and confidence so essential to the judicial function would be forever dissipated. He, therefore, suggested that pressure by the peers would yield salut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned. The independence of judiciary and the stream of public justice would remain pure and unsullied. The Bar Association could remain a useful arm of the judiciary and in the case of sagging reputation of the particular Judge, the Bar Association could take up the matter with the Chief Justice of the High Court and await his response for the action taken thereunder for a reasonable period. 41. In case the allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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