http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 17

PETITIONER:

C. RAVICHANDRAN IYER

Vs.

RESPONDENT:

JUSTICE A.M. BHATTACHARJEE & ORS.

DATE OF JUDGMENT05/09/1995

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

HANSARIA B.L. (J)

CITATION:

1995 SCC (5) 457 JT 1995 (6) 339

1995 SCALE (5)142

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

K. Ramaswamy, J.

The petitioner, a practising advocate, has initiated

the public interest litigation under Article 32 of the

Constitution seeking to issue an appropriate writ, order or

direction restraining permanently the Bar Council of

Maharashtra and Goa [BCMG], Bombay Bar Association [BBA] and

the Advocates' Association of Western India [AAWI],

respondents 2 to 4 respectively, coercing Justice A.M.

Bhattacharjee [the 1st respondent]. Chief Justice of Bombay

High Court, to resign from the office as Judge. He also

sought an investigation by the Central Bureau of

investigation etc. [respondents 8 to 10] into the

allegations made against the 1st respondent and if the same

are found true, to direct the 5th respondent, Speaker Lok

Sabha to initiate action for his removal under Article 124

(4) and (5) read with Article 218 of the Constitution of

India and Judges (Inquiry) Act, 1968 [for short, `the Act'].

This Court on March 24, 1995 issued notice to respondents 2

to 4 only and rejected the prayer for interim direction to

the President of India and the Union of India [respondents 6

and 7 respectively] not to give effect to the resignation by

the 1st respondent. We have also issued notice to the

Attorney General for India and the President of the Supreme

Court Bar Association [SCBA]. The BBA filed a counter-

affidavit through its President, Sri Iqbal Mahomedali

Chagla. Though respondents 2 and 4 are represented through

counsel, they did not file any counter-affidavit. The SCBA

informed the Court that its newly elected office bearers

required time to take a decision on the stand to be taken

and we directed them to file their written submissions. Shri

F.S. Nariman, learned senior counsel appeared for the BBA

and Shri Harish N. Salve, learned senior counsel, appeared

for AAWI, the 4th respondent. The learned Attorney General

also assisted the Court. We place on record our deep

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 17

appreciation for their valuable assistance.

The SCBA, instead of filing written submissions sent a

note with proposals to reopen the case; to issue notice to

all the Bar Associations in the country and refer the matter

to a Bench of not less than five, preferably seven, Judges

for decision after hearing them all. We do not think that it

is necessary to accede to this suggestion.

The petitioner in a well-documented petition stated and

argued with commitment that the news published in various

national newspapers do prove that respondents 2 to 4 had

pressurised the 1st respondent to resign from the office as

Judge for his alleged misbehaviour. The Constitution

provides for independence of the Judges of the higher

courts, i.e., the Supreme Court and the High Courts. It also

lays down in proviso [a] to clause (2) of Article 124; so

too in Article 217 (1) proviso (a) and Article 124 (4),

procedure for voluntary resignation by a Judge, as well as

for compulsory removal, respectively from office in the

manner prescribed therein and in accordance with the Act and

the Rules made thereunder. The acts and actions of the

respondents 2 to 4 are unknown to law, i.e., removal by

forced resignation, which is not only unconstitutional but

also deleterious to the independence of the judiciary. The

accusations against the 1st respondent without proper

investigation by an independent agency seriously damage the

image of judiciary and efficacy of judicial adjudication and

thereby undermine credibility of the judicial institution

itself. Judges are not to be judged by the Bar. Allowing

adoption of such demands by collective pressure rudely

shakes the confidence and competence of judges of integrity,

ability, moral vigour and ethical firmness, which in turn,

sadly destroys the very foundation of democratic polity.

Therefore, the pressure tactics by the Bar requires to be

nibbed in the bud. He, therefore, vehemently argued and

requested the Court to adopt such procedure which would

safeguard the independence of the judiciary and protect the

judges from pressure through unconstitutional methods to

demit the office.

Shri Chagla in his affidavit and Shri Nariman appearing

for the BBA explained the circumstances that led the BBA to

pass the resolution requesting the 1st respondent to demit

his office as a Judge in the interest of the institution. It

is stated in the affidavit that though initially he had in

his custody the documents to show that the 1st respondent

had negotiated with Mr. S.S. Musafir, Chief Executive of

Roebuck Publishing, London and the acceptance by the 1st

respondent for publication and sale abroad of a book

authored by him, viz., "Muslim Law and the Constitution" for

two years at a royalty of US$80,000 [Eighty thousand U.S.

Dollars] and an inconclusive negotiation for US$75,000

[Seventy five thousand U.S. Dollars] for overseas publishing

rights of his book "Hindu Law and the Constitution" [2nd

Edn.], he did not divulge the information but kept

confidential. From about late 1994, there was considerable

agitation amongst the members of respondents 3 and 4 that

certain persons whose names were known to all and who were

seen in the court and were being openly talked about, were

bringing influence over the 1st respondent and could

"influence the course of judgments of the former Chief

Justice of Bombay". "The names of such persons though known

are not being mentioned here since the former Chief Justice

of Bombay has resigned as Chief Justice and Judge of the

Bombay High Court". It was also rumoured that "the former

Chief Justice of Bombay has been paid a large sum of money

in foreign exchange purportedly as royalty for a book

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 17

written by him, viz., "Muslim Law and the Constitution". The

amount of royalty appeared to be totally disproportionate to

what a publisher abroad would be willing to pay for foreign

publication of a book which might be of academic interest

within India [since the book was a dissertation of Muslim

Law in relation to the Constitution of India]. There was a

growing suspicion at the Bar that the amount might have been

paid for reasons other than the ostensible reason". He

further stated that the 1st respondent himself had discussed

with the Advocate General on February 14, 1995 impressing

upon the latter that the Chief Justice "had decided to

proceed on leave from the end of February and would resign

in April 1995". The Advocate General had conveyed it to Shri

Chagla and other members of the Bar. By then, the financial

dealings referred to above were neither known to the public

nor found mention in the press reports. Suddenly on February

19, 1995, the advocates found to their surprise a press

interview published in Times of India said to have been

given by the 1st respondent stating that "he had not

seriously checked the antecedents of the publishers and it

was possible that he had made a mistake in accepting the

offer". He was not contemplating to resign from judgship at

that stage and was merely going on medical leave for which

he had already applied for and was granted. The BCMG passed

a resolution on February 19, 1995 seeking "resignation

forthwith" of the 1st respondent. On February 21, 1995, the

BBA received a requisition for holding its General Body

meeting to discuss the financial dealings said to have been

had by the 1st respondent "for a purpose other than the

ostensible purpose thereby raising a serious doubt as to the

integrity of the Chief Justice" The meeting was scheduled to

be held at 2.15 p.m. on February 22, 1995 as per its bye-

laws. The 1st respondent appears to have rung up Shri Chagla

in the evening on February 21, 1995 but he was not

available. Pursuant to a contact by Shri W.Y. Yande, the

President of AAWI, at the desire of Chief Justice to meet

him, Shri Chagla and Shri Yande met the 1st respondent at

his residence at 10.00 a.m. in the presence of two

Secretaries of the 1st respondent, who stated thus to Shri

Chagla as put in his affidavit :

"...The Bar Council of Maharashtra and

Goa had already shot an arrow and that

the wound was still fresh and requested

me to ensure that he would not be hurt

any further by a resolution of the

Bombay Bar Association. The 1st

respondent informed me that he had

already agreed to resign and in fact

called for and showed me a letter dated

17th February, 1995 addressed by him to

the Honourable the Chief Justice of

India in which he proposed to go on

medical leave for a month and that at

the end of the leave or even earlier he

proposed to tender his resignation".

They had reminded the 1st respondent of the assurance

given to the Advocate General expressing his desire to

resign and he conveyed his personal inconveniences to be

encountered etc. The 1st respondent assured them that he

would "resign within a week which resignation would be

effective some 10 or 15 days thereafter and that in the

meanwhile he would not do any judicial work including

delivery of any judgment". Shri Chagla appears to have told

the 1st respondent that though he would not give an

assurance, he would request the members of the Association

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 17

to postpone the meeting and he had seen that the meeting was

adjourned to 5.00 p.m. of March 1, 1995. On enquiry being

made on March 1, 1995 from the Principal Secretary to the

1st respondent whether the 1st respondent had tendered his

resignation, it was replied in negative which showed that

the 1st respondent had not kept his promise. Consequently,

after full discussion, for and against, an overwhelming

majority of 185 out of 207 permanent members resolved in the

meeting held on March 1, 1995 at 5.00 p.m. demanding the

resignation of the 1st respondent.

Since the 1st respondent has already resigned, the

question is whether a Bar Council or Bar Association is

entitled to pass resolution demanding a judge to resign,

what is its effect on the independence of the judiciary and

whether it is constitutionally permissible. Shri Nariman

contended that the Supreme Court and the High Court are two

independent constitutional institutions. A High Court is not

subordinate to the Supreme Court though constitutionally the

Supreme Court has the power to hear appeals from the

decisions or orders or judgments of the High Courts or any

Tribunal or quasi-judicial authority in the country. The

Judges and the Chief Justice of a High Court are not

subordinate to the Chief Justice of India. The

constitutional process of removal of a Judge as provided in

Article 124 (4) of the Constitution is only for proved

misbehaviour or incapacity. The recent impeachment

proceedings against Justice V. Ramaswami and its fall-out do

indicate that the process of impeachment is cumbersome and

the result uncertain. Unless corrective steps are taken

against judges whose conduct is perceived by the Bar to be

detrimental to the independence of the judiciary, people

would lose faith in the efficacy of judicial process. Bar

being a collective voice of the court concerned has

responsibility and owes duty to maintain independence of the

judiciary. It is its obligation to bring it to the notice of

the Judge concerned the perceived misbehaviour or incapacity

and if it is not voluntarily corrected they have to take

appropriate measures to have it corrected. Bar is not aware

of any other procedure than the one under Article 124 (4) of

the Constitution, and the Act. Therefore, the BBA, instead

of proceeding to the press, adopted democratic process to

pass the resolution, in accordance with its bye-laws, when

all attempts made by it proved abortive. The conduct of the

Judge betrayed their confidence in his voluntary

resignation. Consequently, the BBA was constrained to pass

the said resolution. Thereby it had not transgressed its

limits. Its action is in consonance with its bye-laws and in

the best tradition to maintain independence of the

judiciary. Shri Nariman also cited the instance of non-

assignment of work to four Judges of the Bombay High Court

by its former Chief Justice when some allegations of

misbehaviour were imputed to them by the Bar. He, however,

submitted that in the present case the allegations were

against the Chief Justice himself, and so, he could not have

been approached. He urged that if some guidelines could be

laid down by this Court in such cases, the same would be

welcomed.

The counsel appearing for the BCMG, who stated that he

is its member, submitted that when the Bar believes that the

Chief Justice has committed misconduct, as an elected body

it is its duty to pass a resolution after full discussion

demanding the Judge to act in defence of independence of the

judiciary by demitting his office.

Shri Salve argued that independence of the judiciary is

paramount. Judges should not be kept under pressure. Such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 17

procedure which would be conducive to maintain independence

of the judiciary and at the same time would nib the evil in

the bud, needs to be adopted. The tendencies of unbecoming

conduct on the part of erring Judges would betray the

confidence of the litigant public in the efficacy of the

judicial process. In the light of the previous experience,

it is for the Court to evolve a simple and effective

procedure to meet the exigencies.

The learned Attorney General contended that any

resolution passed by any Bar Association tantamounts to

scandalising the court entailing contempt of the court. It

cannot coerce the Judge to resign. The pressure brought by

the Chief Justice of India upon the Judge would be

constitutional but it should be left to the Chief Justice of

India to impress upon the erring Judge to correct his

conduct. This procedure would yield salutary effect. The

Chief Justice of India would adopt such procedure as is

appropriate to the situation. He cited the advice tendered

by Lord Chancellor of England to Lord Denning, when the

latter was involved in the controversy over his writing on

the jury trial and the composition of the black members of

the jury, to demit the office, which he did in grace.

Rule of Law and Judicial Independence - Why need to be

preserved?

The diverse contentions give rise to the question

whether any Bar Council or Bar Association has the right to

pass resolution against the conduct of a Judge perceived to

have committed misbehaviour and, if so, what is its effect

on independence of the judiciary. With a view to appreciate

the contentions in their proper perspective, it is necessary

to have at the back of our mind the importance of the

independence of the judiciary. In a democracy governed by

rule of law under written Constitution, judiciary is

sentinel on the qui vive to protect the fundamental rights

and to poise even scales of justice between the citizens and

the State or the States inter se. Rule of law and judicial

review are basic features of the Constitution. As its

integral constitutional structure, independence of the

judiciary is an essential attribute of rule of law. In S.P.

Gupta vs. Union of India [(1981) Supp. SCC 87] in paragraph

27, this Court held that if there is one principle which

runs through the entire fabric of the Constitution it is the

principle of the rule of law, and under the Constitution it

is the judiciary which is entrusted with the task of keeping

every organ of the State within the limits of the law and

thereby making the rule of law meaningful and effective.

Judicial review is one of the most potent weapons in the

armoury of law. The judiciary seeks to protect the citizen

against violation of his constitutional or legal rights or

misuse or abuse of power by the State or its officers. The

judiciary stands between the citizen and the State as a

bulwark against executive excesses and misuse or abuse of

power by the executive. It is, therefore, absolutely

essential that the judiciary must be free from executive

pressure or influence which has been secured by making

elaborate provisions in the Constitution with details. The

independence of judiciary is not limited only to the

independence from the executive pressure or influence; it is

a wider concept which takes within its sweep independence

from any other pressure and prejudices. It has many

dimensions, viz., fearlessness of other power centers,

economic or political, and freedom from prejudices acquired

and nourished by the class to which the judges belong.

Judicial individualism - whether needs protection?

Independent judiciary is, therefore, most essential

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 17

when liberty of citizen is in danger. It then becomes the

duty of the judiciary to poise the scales of justice unmoved

by the powers (actual or perceived) undisturbed by the

clamour of the multitude. The heart of judicial independence

is judicial individualism. The judiciary is not a

disembodied abstraction. It is composed of individual men

and women who work primarily on their own. Judicial

individualism, in the language of Justice Powell of the

Supreme Court of United States in his address to the

American Bar Association, Labour Law Section on August 11,

1976, is "perhaps one of the last citadels of jealously

preserved individualism....". Justice Douglas in his

dissenting opinion in Stephen S. Chandler v. Judicial

Council of the Tenth Circuit of the United States [398 US

74:26 L.Ed. 2d 100] stated:

"No matter how strong an individual

judge's spine, the threat of punishment

- the greatest peril to judicial

independence - would project as dark a

shadow whether cast by political

strangers or by judicial colleagues. A

federal judge must be independent of

every other judge... Neither one alone

nor any number banded together can act

as censor and place sanctions on him. It

is vital to preserve the opportunities

for judicial individualism."

He further opined that to give the administrative

officer any supervision or control over the exercise of

purely judicial function would be to destroy the very

fundamentals of the theory of government. An independent

judiciary is one of the nation's outstanding

characteristics. Once a federal judge is confirmed by the

Senate and takes his oath, he is independent of every other

judge. He commonly works with other federal judges who are

likewise sovereign. But neither one alone nor any number

banded together can act as censor and place sanctions on

him. Under the Constitution the only leverage that can be

asserted against him is impeachment, where pursuant to a

resolution passed by the House, he is tried by the Senate,

sitting as a jury. The tradition even bars political

impeachments as evidenced by the highly partisan, but

unsuccessful, effort to oust Justice Samuel of that Court in

1805.... There is no power under the Constitution for one

group of federal judges to censor any federal judge and no

power to declare him inefficient and strip him of his power

to act as a judge. At page 139 it was further pointed out

that it is time that an end be put to these efforts of

federal judges to ride herd on other federal judges. This is

a form of `hazing' having no place under the Constitution.

Federal Judges are entitled, like other people, to the full

freedom of the First Amendment. If they break a law, they

can be prosecuted. If they become corrupt or sit in cases in

which they have a personal or family stake, they can be

impeached by Congress. But I search the Constitution in vain

for any power of surveillance which other federal judges

have over those aberrations. Some judges may be displeasing

to those who walk in more measured, conservative steps. But

those idiosyncrasies can be of no possible constitutional

concern to other federal judges. It is time to put an end to

the monstrous practices that seem about to overtake us....".

In Chandler, a United States District Judge had filed a

motion for leave to file a petition for a writ of mandamus

or alternatively a writ of prohibition addressed to the

Judicial Council of the Tenth Circuit. His petition sought

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 17

resolution of questions of first impression concerning,

inter alia, the scope and constitutionality of the powers of

the Judicial Councils under 28 USC 88 137 and 6 332. The

Judicial Council of each federal circuit is under that

statute, composed of the active circuit judges of the

circuit. Petitioner asked the Court to issue an order under

the All Writs Act telling the Council to "cease acting in

violation of its powers and in violation of Judge Chandler's

rights as a federal judge and an American citizen". Majority

held that in essence, petitioner challenged all orders of

the Judicial Council relating to assignment of cases in the

Western District of Oklahoma and fixing conditions on the

exercise of his constitutional powers as a Judge.

Specifically, petitioner urged that the Council has usurped

the impeachment power, committed by the Constitution to the

Congress exclusively. While conceding that the invoked

statute conferred some powers on the Judicial Council,

petitioner contended that the legitimate administrative

purposes to which it may be turned, do not include stripping

a judge of his judicial functions as, he claimed, was done

there. No writ was issued.

The arch of the Constitution of India pregnant from its

Preamble, Chapter III [Fundamental Rights] and Chapter IV

[Directive Principles] is to establish an egalitarian social

order guaranteeing fundamental freedoms and to secure

justice - social, economic and political - to every citizen

through rule of law. Existing social inequalities need to be

removed and equality in fact is accorded to all people

irrespective of caste, creed, sex, religion or region

subject to protective discrimination only through rule of

law. The Judge cannot retain his earlier passive judicial

rule when he administers the law under the Constitution to

give effect to the constitutional ideals. The extraordinary

complexity of modern litigation requires him not merely to

declare the rights of citizens but also to mould the relief

warranted under given facts and circumstances and often

command the executive and other agencies to enforce and give

effect to the order, writ or direction or prohibit them to

do unconstitutional acts. In this ongoing complex of

adjudicatory process, the role of the Judge is not merely to

interpret the law but also to lay new norms of law and to

mould the law to suit the changing social and economic

scenario to make the ideals enshrined in the Constitution

meaningful and reality. Therefore, the Judge is required to

take judicial notice of the social and economic

ramification, consistent with the theory of law. Thereby,

the society demands active judicial roles which formerly

were considered exceptional but now a routine. The Judge

must act independently, if he is to perform the functions as

expected of him and he must feel secure that such action of

him will not lead to his own downfall. The independence is

not assured for the Judge but to the judged. Independence to

the Judge, therefore, would be both essential and proper.

Considered judgment of the court would guarantee the

Constitutional liberties which would thrive only in an

atmosphere of judicial independence. Every endeavour should

be made to preserve independent judiciary as a citadel of

public justice and public security to fulfil the

constitutional role assigned to the Judges.

The founding fathers of the Constitution advisedly

adopted cumbersome process of impeachment as a mode to

remove a Judge from office for only proved misbehaviour or

incapacity which implies that impeachment process is not

available for minor abrasive behaviour of a Judge. It

reinforces that independence to the Judge is of paramount

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 17

importance to sustain, strengthen and elongate rule of law.

Parliament sparingly resorts to the mechanism of impeachment

designed under the Constitution by political process as the

extreme measure only upon a finding of proved misbehaviour

or incapacity recorded by a committee constituted under

Section 3 of the Act by way of address to the President in

the manner laid down in Article 124 (4) and (5) of the

Constitution, the Act and the Rules made thereunder.

In all common law jurisdictions, removal by way of

impeachment is the accepted norm for serious acts of

judicial misconduct committed by a Judge. Removal of a Judge

by impeachment was designed to produce as little damage as

possible to judicial independence, public confidence in the

efficacy of judicial process and to maintain authority of

courts for its effective operation.

In United States, the Judges appointed under Article

III of the American Constitution could be removed only by

impeachment by the Congress. The Congress enacted the

Judicial Councils Reform and Judicial Conduct and Disability

Act of 1980 [the 1980 Act] by which Judicial Council was

explicitly empowered to receive complaints about the

judicial conduct "prejudicial to the effective and

expeditious administration of the business of the courts, or

alleging that such a judge or magistrate is unable to

discharge all the duties of office by reason of mental or

physical disability".

Jeffrey N. Barr and Thomas E. Willging conducted

research on the administration of the 1980 Act and in their

two research volumes, they concluded that "several chief

judges view the Act as remedial legislation designed not to

punish judges but to correct aberrant behaviour and provide

opportunity for corrective action as a central feature of

the Act". From 1980 to 1992, 2388 complaints were filed. 95

per cent thereof resulted in dismissal. 1.7 per cent of the

complaints ended in either dismissal from service or

corrective action of reprimands - two of public reprimands

and one of private reprimand. Two cases were reported to

Judicial Conference by the judicial councils certifying that

the grounds might exist for impeachment.

Our Constitution permits removal of the Judge only when

the motion was carried out with requisite majority of both

the Houses of the Parliament recommending to the President

for removal. In other words, the Constitution does not

permit any action by any agency other than the initiation of

the action under Article 124(4) by the Parliament. In Sub-

Committee on Judicial Accountability etc. etc. v. Union of

India & Ors. etc. [(1991) Supp. 2 SCR, 1], this Court at

page 54 held that the removal of a Judge culminating in the

presentation of an address by different Houses of Parliament

to the President, is committed to the Parliament alone and

no initiation of any investigation is possible without the

initiative being taken by the Houses themselves. At page 71

it was further held that the constitutional scheme envisages

removal of a Judge on proved misbehaviour or incapacity and

the conduct of the Judge was prohibited to be discussed in

the Parliament by Article 121. Resultantly, discussion of

the conduct of a judge or any evaluation or inferences as to

its merit is not permissible elsewhere except during

investigation before the Inquiry Committee constituted under

the Act for this purpose.

Articles 124 (4) and 121 would thus put the nail

squarely on the projections, prosecutions or attempts by any

other forum or group of individuals or Associations,

statutory or otherwise, either to investigate or enquire

into or discuss the conduct of a Judge or the performance of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 17

his duties and on/off court behaviour except as per the

procedure provided under Articles 124 (4) and (5) of the

Constitution, and Act and the Rules. Thereby, equally no

other agency or authority like the C.B.I., Ministry of

Finance, the Reserve Bank of India [respondents Nos. 8 to

10] as sought for by the petitioner, would investigate into

the conduct or acts or actions of a Judge. No mandamus or

direction would be issued to the Speaker of Lok Sabha or

Chairman of Rajya Sabha to initiate action for impeachment.

It is true, as contended by the petitioner, that in K.

Veeraswami v. Union of India [(1991) 3 SCC 655], majority of

the Constitution Bench upheld the power of the police to

investigate into the disproportionate assets alleged to be

possessed by a Judge, an offence under Section 5 of the

Prevention of Corruption Act, 1947 subject to prior sanction

of the Chief Justice of India to maintain independence of

the judiciary. By interpretive process, the Court carved out

primacy to the role of the Chief Justice of India, whose

efficacy in a case like one at hand would be considered at a

later stage.

Duty of the Judge to maintain high standard of conduct. Its

judicial individualism - whether protection imperative?

Judicial office is essentially a public trust. Society

is, therefore, entitled to except that a Judge must be a man

of high integrity, honesty and required to have moral

vigour, ethical firmness and impervious to corrupt or venial

influences. He is required to keep most exacting standards

of propriety in judicial conduct. Any conduct which tends to

undermine public confidence in the integrity and

impartiality of the court would be deleterious to the

efficacy of judicial process. Society, therefore, expects

higher standards of conduct and rectitude from a Judge.

Unwritten code of conduct is writ large for judicial

officers to emulate and imbibe high moral or ethical

standards expected of a higher judicial functionary, as

wholesome standard of conduct which would generate public

confidence, accord dignity to the judicial office and

enhance public image, not only of the Judge but the court

itself. It is, therefore, a basic requirement that a Judge's

official and personal conduct be free from impropriety; the

same must be in tune with the highest standard of propriety

and probity. The standard of conduct is higher than expected

of a layman and also higher than expected of an advocate. In

fact, even his private life must adhere to high standards of

probity and propriety, higher than those deemed acceptable

for others. Therefore, the Judge can ill-afford to seek

shelter from the fallen standard in the society.

In Krishna Swami v. Union of India & Ors. [(1992) 4 SCC

605 at 650-51], one of us (K. Ramaswamy, J). held that the

holder of office of the Judge of the Supreme Court or the

High Court should, therefore, be above the conduct of

ordinary mortals in the society. The standards of judicial

behaviour, both on and off the Bench, are normally high.

There cannot, however, be any fixed or set principles, but

an unwritten code of conduct of well-established traditions

is the guidelines for judicial conduct. The conduct that

tends to undermine the public confidence in the character,

integrity or impartiality of the Judge must be eschewed. It

is expected of him to voluntarily set forth wholesome

standards of conduct reaffirming fitness to higher

responsibilities.

To keep the stream of justice clean and pure, the Judge

must be endowed with sterling character, impeccable

integrity and upright behaviour. Erosion thereof would

undermine the efficacy of the rule of law and the working of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17

the Constitution itself. The Judges of higher echelons,

therefore, should not be mere men of clay with all the

frailties and foibles, human failings and weak character

which may be found in those in other walks of life. They

should be men of fighting faith with tough fibre not

susceptible to any pressure, economic, political or any

sort. The actual as well as the apparent independence of

judiciary would be transparent only when the office holders

endow those qualities which would operate as impregnable

fortress against surreptitious attempts to undermine the

independence of the judiciary. In short, the behaviour of

the Judge is the bastion for the people to reap the fruits

of the democracy, liberty and justice and the antithesis

rocks the bottom of the rule of law.

Scope and meaning of "misbehaviour" in Article 124 (4):

Article 124 (4) of the Constitution sanctions action

for removal of a Judge on proved misbehaviour or incapacity.

The word "misbehaviour" was not advisedly defined. It is a

vague and elastic word and embraces within its sweep

different facets of conduct as opposed to good conduct. In

the Law Lexicon by P. Ramanatha Aiyar, 1987 Edn. at page

821, collected from several decisions, the meaning of the

word `misconduct', is stated to be vague and relative term.

Literally, it means wrong conduct or improper conduct. It

has to be construed with reference to the subject matter and

the context wherein the term occurs having regard to the

scope of the Act or the statute under consideration. In the

context of disciplinary proceedings against Solicitor, the

word misconduct was construed as professional misconduct

extending to conduct "which shows him to be unworthy member

of the legal profession." In the context of

misrepresentation made by a pleader, who obtained

adjournment of a case on grounds to his knowledge to be

false a Full Bench of the Madras High Court in Re: A First

Grade Pleader [AIR 1931 Mad. 422 = ILR 54 Mad. 520] held

that if a legal practioner deliberately made, for the

purpose of impeding the course of justice, a statement to

the court which he believed to be untrue and thereby gained

an advantage for his client, he was guilty of gross improper

conduct and as such rendered himself liable to be dealt with

by the High Court in the exercise of its disciplinary

jurisdiction. Misconduct on the part of an arbitrator was

construed to mean that misconduct does not necessarily

comprehend or include misconduct of a fraudulent or improper

character, but it does comprehend and include action on the

part of the arbitrator which is, upon the face of it,

opposed to all rational and reasonable principles that

should govern the procedure of any person who is called upon

to decide upon questions in difference and dispute referred

to him by the parties. Misconduct in office was construed to

mean unlawful behaviour or include negligence by public

officer, by which the rights of the party have been

affected. In Krishna Swami's case (supra), one of us, K.

Ramaswamy, J., considered the scope of `misbehaviour' in

Article 124 (4) and held in paragraph 71 that "every act or

conduct or even error of judgment or negligent acts by

higher judiciary perse does not amount to misbehaviour.

Willful abuse of judicial office, Willful misconduct in the

office, corruption, lack of integrity, or any other offence

involving moral turpitude would be misbehaviour. Misconduct

implies actuation of some degree of mens rea by the doer.

Judicial finding of guilt of grave crime is misconduct.

Persistent failure to perform the judicial duties of the

Judge or Willful abuse of the office dolus malus would be

misbehaviour. Misbehaviour would extend to conduct of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17

Judge in or beyond the execution of judicial office. Even

administrative actions or omissions too need accompaniment

of mens rea."

Guarantee of tenure and its protection by the

Constitution would not, however, accord sanctuary for

corruption or grave misbehaviour. Yet every action or

omission by a judicial officer in the performance of his

duties which is not a good conduct necessarily, may not be

misbehaviour indictable by impeachment, but its insidious

effect may be pervasive and may produce deleterious effect

on the integrity and impartiality of the Judge. Every

misbehaviour in juxtaposition to good behaviour, as a

constitutional tautology, will not support impeachment but a

misbehaviour which is not a good behaviour may be improper

conduct not befitting to the standard expected of a Judge.

Threat of impeachment process itself may swerve a Judge to

fall prey to misconduct but it serves disgrace to use

impeachment process for minor offences or abrasive conduct

on the part of a Judge. The bad behaviour of one Judge has a

rippling effect on the reputation of the judiciary as a

whole. When the edifice of judiciary is built heavily on

public confidence and respect, the damage by an obstinate

Judge would rip apart the entire judicial structure built in

the Constitution.

Bad conduct or bad behaviour of a Judge, therefore,

needs correction to prevent erosion of public confidence in

the efficacy of judicial process or dignity of the

institution or credibility to the judicial office held by

the obstinate Judge. When the Judge cannot be removed by

impeachment process for such conduct but generates

widespread feeling of dissatisfaction among the general

public, the question would be who would stamp out the rot

and judge the Judge or who would impress upon the Judge

either to desist from repetition or to demit the office in

grace? Who would be the appropriate authority? Who would be

the principal mover in that behalf? The hiatus between bad

behaviour and impeachable misbehaviour needs to be filled in

to stem erosion of public confidence in the efficacy of

judicial process. Whether the Bar of that Court has any role

to play either in an attempt to correct the perceived fallen

standard or is entitled to make a demand by a resolution or

a group action to pressurize the Judge to resign his office

as a Judge? The resolution to these question involves

delicate but pragmatic approach to the questions of

constitutional law.

Role of the Bar Council or Bar Associations - whether

unconstitutional?

The Advocates Act, 1961 gave autonomy to a Bar Council

of a State or Bar Council of India and Section 6 (1)

empowers them to make such action deemed necessary to set

their house in order, to prevent fall in professional

conduct and to punish the incorrigible as not befitting to

the noble profession apart from admission of the advocates

on its roll. Section 6 (1) (c) and rules made in that

behalf, Sections 9, 35, 36, 36B and 37 enjoin it to

entertain and determine cases of misconduct against

advocates on its roll. The members of the judiciary are

drawn primarily and invariably from the Bar at different

levels. The high moral, ethical and professional standards

among the members of the Bar are pre-conditions even for

high ethical standard of the Bench. Degeneration thereof

inevitably has its eruption and tends to reflect the other

side of the coin. The Bar Council, therefore, is enjoined by

the Advocates Act to maintain high moral, ethical and

professional standards. which of late is far from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17

satisfactory. Their power under the Act ends thereat and

extends no further. Article 121 of the Constitution

prohibits discussion by the members of the Parliament of the

conduct of any Judge of the Supreme Court or of High Court

in the discharge of his duties except upon a motion for

presenting an address to the President praying for the

removal of the Judge as provided under Article 124 (4) and

(5) and in the manner laid down under the Act, the Rules and

the rules of business of the Parliament consistent

therewith. By necessary implication, no other forum or fora

or platform is available for discussion of the conduct of a

Judge in the discharge of his duties as a Judge of the

Supreme Court or the High Court, much less a Bar Council or

group of practising advocates. They are prohibited to

discuss the conduct of a Judge in the discharge of his

duties or to pass any resolution in that behalf.

Section 2 (c) of the Contempt of Courts Act, 1971,

defines "criminal contempt" to mean publication whether by

words spoken or written, signs, visible representations or

otherwise of any matter or the doing of any act whatsoever

which scandalises or tends to scandalise, lower or tends to

lower the authority of any court or prejudices or interferes

or tends to interfere with the due course of any judicial

proceedings, or interferes or tends to interfere with or

obstructs or tends to obstruct the administration of justice

in any other manner.

In Halsbury's Laws of England [4th Ed.] Volume 9 in

para 27 at page 21, it is stated that scandalising the court

would mean any act done or writing published which is

calculated to bring a court or a Judge into contempt, or to

lower his authority, or to interfere with the due course of

justice or the lawful process of the court. Scurrilous abuse

of a Judge or court, or attacks on the personal character of

a Judge, are punishable contempts. Punishment is inflicted,

not for the purpose of protecting either the court as a

whole or the individual Judges of the court from repetition

of the attack, but for protecting the public, and especially

those who either voluntarily or by compulsion are subject to

the jurisdiction of the court, from the mischief they will

incur if the authority of the tribunal is undermined or

impaired. In consequence, the court has regarded with

particular seriousness allegations of partiality or bias on

the part of a Judge or a court. Criticism of a Judge's

conduct or of the conduct of a court even if strongly

worded, is, however, not contempt, provided that the

criticism is fair, temperate and made in good faith and is

not directed to the personal character of a Judge or to the

impartiality of a Judge or court.

In Oswald's Contempt of Court [3rd Edn.] 1993 at page

50 it is stated that libel upon courts is made contempt "to

keep a blaze of glory around them, and to deter people from

attempting to render them contemptible in the eyes of the

public.... A libel upon a court is a reflection upon the

King, and telling the people that the administration of

justice is in week or corrupt hands, that the fountain of

justice itself is tainted, and consequently that judgments

which stream out of that fountain must be impure and

contaminated". A libel upon a Judge in his judicial capacity

is a contempt, whether it concerns what he did in court, or

what he did judicially out of it. At page 91, it is stated

that all publications which offend against the dignity of

the court, or are calculated to prejudice the course of

justice, will constitute contempt. One of the natures of

offences is scandalising the courts. In Contempt of Court

[2nd Edn.] by C.J. Millar at page 366, Lord Diplock is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17

quoted from Chokolingo v. AG of Trinidaad and Tobago [(1981)

1 All ER 244 at 248], who spoke for the Judicial Committee

summarising the position thus: "`Scandalising the court' is

a convenient way of describing a publication which, although

it does not relate to any specific case either past or

pending or any specific Judge, is a scurrilous attack on the

judiciary as a whole, which is calculated to undermine the

authority of the courts and public confidence in the

administration of justice." In Borrie and Lowe's Law of

Contempt [2nd Edn.] at page 226 it is stated that the

necessity for this branch of contempt lies in the idea that

without well-regulated laws a civilised community cannot

survive. It is therefore thought important to maintain the

respect and dignity of the court and its officers, whose

task it is to uphold and enforce the law, because without

such respect, public faith in the administration of justice

would be undermined and the law itself would fall into

disrepute. Even in the latest Report on Contempt of Court by

Phillimore Committee to revise the penal enforcement of

contempt, adverting to Lord Atkin's dictum that courts are

satisfied to leave to public opinion attacks or comments

derogatory or scandalous to them, in paragraph 162, the

Committee had stated that at one stage "we considered

whether such conduct should be subject to penal sanctions at

all. It was argued that any judge who was attacked would

have the protection of the law of defamation, and that no

further protection is necessary. We have concluded, however,

that some restraints are still required, for two reasons.

First, this branch of the law of contempt is concerned with

the protection of the administration of justice, and

especially the preservation of public confidence in its

honesty and impartiality; it is only incidentally, if at

all, concerned with the personal reputations of Judges.

Moreover, some damaging attacks, for example upon an

unspecified group of judges, may not be capable of being

made the subject of libel proceedings at all. Secondly,

Judges commonly feel constrained by their position not to

take action in reply to criticism, and they have no proper

forum in which to do so such as other public figures may

have. These considerations lead us to the conclusion that

there is need for an effective remedy.....against

imputations of improper or corrupt judicial conduct." The

Contempt of Courts Act, 1971 engrafted suitable amendments

accordingly.

Freedom of expression and duty of Advocate:

It is true that freedom of speech and expression

guaranteed by Article 19 [1] (a) of the Constitution is one

of the most precious liberties in any democracy. But equally

important is the maintenance of respect for judicial

independence which alone would protect the life, liberty and

reputation of the citizen. So the nation's interest requires

that criticism of the judiciary must be measured, strictly

rational, sober and proceed from the highest motives without

being coloured by partisan spirit or pressure tactics or

intimidatory attitude. The Court must, therefore, harmonise

constitutional values of free criticism and the need for a

fearless curial process and its presiding functionary, the

Judge. If freedom of expression subserves public interest in

reasonable measure, public justice cannot gag it or manacle

it; but if the court considered the attack on the Judge or

Judges scurrilous, offensive, intimidatory or malicious,

beyond condonable limits, the strong arm of the law must

strike a blow on him who challenges the supremacy of the

rule of the law by fouling its source and stream. The power

to punish the contemner is, therefore, granted to the court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17

not because Judges need the protection but because the

citizens need an impartial and strong judiciary.

It is enough if all of us bear this in mind while

expressing opinions on courts and Judges. But the question

that still remains is when the Bar of the Court, in which

the Judge occupies the seat of office, honestly believes

that the conduct of the Judge or of the Bench fouls the

fountain of justice, or undermines or tends to undermine the

dignity expected of a Judge and the people are tending to

disbelieve the impartiality or integrity of the Judge, who

should bear the duty and responsibility to have it/them

corrected so as to restore the respect for judiciary?

In Brahma Prakash Sharma & Ors. vs. The State of Uttar

Pradesh [AIR 1954 SC 10] the Bar Association passed

resolutions and communicated to the superior authorities

that certain judicial officers were incompetent due to their

conduct in the court and High Court took action for contempt

of the court. The question was whether the members of the

Executive Committee of the Bar Association had committed

contempt of the court? This Court held that the attack on a

Judge is a wrong done to the public and if it tends to

create apprehension in the minds of the people regarding the

integrity, ability or fairness of the Judge and to deter

actual and prospective litigants from placing complete

reliance upon the court's administration of justice, or if

it is likely to cause embarrassment in the mind of the Judge

himself in the discharge of his judicial duties, it would be

scandalising the court and be dealt with accordingly.

The threat of action on vague grounds of

dissatisfaction would create a dragnet that would inevitably

sweep into its grasp the maverick, the dissenter, the

innovator, the reformer - in one word the unpopular.

Insidious attampts pave way for removing the inconvenient.

Therefore, proper care should be taken by the Bar

Association concerned. First it should gather specific,

authentic and acceptable material which would show or tend

to show that conduct on the part of a Judge creating a

feeling in the mind of a reasonable person doubting the

honesty, integrity, impartiality or act which lowers the

dignity of the office but necessarily, is not impeachable

misbehaviour. In all fairness to the Judge, the responsible

office bearers should meet him in camera after securing

interview and apprise the Judge of the information they had

with them. If there is truth in it, there is every

possibility that the Judge would mend himself. Or to avoid

embarrassment to the Judge, the office bearers can approach

the Chief Justice of that High Court and apprise him of the

situation with material they have in their possession and

impress upon the Chief Justice to deal with the matter

appropriately.

Primacy of the Chief Justice of India

It is true that this Court has neither administrative

control over the High Court nor power on the judicial side

to enquire into the misbehaviour of a Chief Justice or Judge

of a High Court. When the Bar of the High Court concerned

reasonably and honestly doubts the conduct of the Chief

Justice of that court, necessarily the only authority under

the Constitution that could be tapped is the Chief Justice

of India, who in common parlance is known as the head of the

judiciary of the country. It is of importance to emphasise

here that impeachment is meant to be a drastic remedy and

needs to be used in serious cases. But there must exist some

other means to ensure that Judges do not abuse the trust the

society has in them. It seems to us that self-regulation by

the judiciary is the only method which can be tried and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17

adopted. Chief Justice of India is the first among the

Judges. Under Articles 124(2) and 217(1), the President of

India always consults the Chief Justice of India for

appointment of the Judges in the Supreme Court and High

Courts. Under Article 222, the President transfers Judges of

High Courts in consultation with the Chief Justice of India.

In Supreme Court Advocates-on-Record Association vs. Union

of India [(1993) 4 SCC 441] it was reinforced and the Chief

Justice of India was given center stage position. The

primacy and importance of the office of the Chief Justice

was recognised judicially by this Court in Veeraswami's case

[supra] in para 60 at page 709. This Court, while upholding

power to register case against a retired Chief Justice of

the High Court, permitted to proceed with the investigation

for the alleged offence under Section 5 of the Prevention of

Corruption Act. The Constitution Bench per majority,

however, held that the saction and approval of the Chief

Justice of India is a condition precedent to register a case

and investigate into the matter and sanction for prosecution

of the said Judge by the President after consultation with

the Chief Justice of India.

In Sub-Committee on Judicial Accountability [2nd case]

[supra] also the same primacy had been accorded to the Chief

Justice at page 72 thus:

"It would also be reasonable to assume

that the Chief Justice of India is

expected to find a desirable solution in

such a situation to avoid embarrassment

to the learned Judge and to the

Institution in a manner which is

conducive to the independence of

judiciary and should the Chief Justice

of India be of the view that in the

interests of the institution of

judiciary it is desirable for the

learned Judge to abstrain from judicial

work till the final outcome under

Article 124 (4), he would advise the

learned Judge accordingly. It is further

reasonable to assume that the concerned

learned Judge would ordinarily abide by

the advice of the Chief Justice of

India."

International Bar Association at its 19th Biennial

Conference held at New Delhi in October 1982 had adopted

minimum standards for judicial conduct. Paras 27 to 72

relate to judicial removal and discipline. Para 31 says that

"the head of the Court may legitimately have supervisory

powers to control judges on administrative matters."

In "Chilling Judicial Independence", Irving R. Kaufman,

Chief Judge, U.S. Court of Appeals for the Second Circuit

[See: Yale Law Journal [Vol.88] 1978-79 p.681 at page 712]

stated that it seems unwise to allow bureaucrats, whether

lawyers or not, to determine, even in part, the fate of

Judges. The sheer magnitude of the disciplinary engine would

be a major nuisance. Judges frequently receive hostile or

threatening correspondence from disappointed litigants.

Creation of a new disciplinary scheme would transform a

minor annoyance into a constant threat of official action.

At the very least, it would require time-consuming responses

by the Judge. Even if the Judge were not eventually

condemned, the mere invocation of the statutory provisions

might taint him with a devastating stigma. The vestment of

authority might remain but the aura of respect and

confidence so essential to the judicial function would be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17

forever dissipated. He, therefore, suggested that pressure

by the peers would yield salutary effect on the erring judge

and, therefore, judicial system can better survive by

pressure of the peers instead of disciplinary actions. At

page 709 he stated: "Peer pressure is a potent tool. It

should not be underestimated because it is neither exposed

to public view nor enshrined in law".

Harry T. Edwards, Chief Judge, U.S. Courts of Appeal

for the District of Columbia Circuit [See: Michigan Law

Review (Vol.87) 765] in his article "Regulating Judicial

Misconduct and Divining "Good Behaviour" for Federal

Judges", after the 1980 Act, suggested that "I believe that

federal judges are subject to some measure of control by

peers with respect to behaviour or intimidation that

adversely affects the work of the court and that does not

rise to the level of impeachable misconduct". "I would

submit that the ideal of judicial independence is not

compromised when judges are monitored and are regulated by

their own peers". This limited system of judicial self-

regulation resists no constitutional dilemma as long as

removal power remains with Congress. "I argue that judiciary

alone should monitor this bad behaviour through a system of

self-regulation." He opined that self-regulation would

bridge the hiatus between bad behaviour and impeachable

conduct to yield salutary effect.

Bearing all the above in mind, we are of the considered

view that where the complaint relates to the Judge of the

High Court, the Chief Justice of that High Court, after

verification, and if necessary, after confidential enquiry

from his independent source, should satisfy himself about

the truth of the imputation made by the Bar Association

through its office bearers against the Judge and consult the

Chief Justice of India, where deemed necessary, by placing

all the information with him. When the Chief Justice of

India is seized of the matter, to avoid embarrassment to him

and to allow fairness in the procedure to be adopted in

furtherance thereof, the Bar should suspend all further

actions to enable the Chief Justice of India to

appropriately deal with the matter. This is necessary

because any action he may take must not only be just but

must also appear to be just to all concerned, i.e., it must

not even appear to have been taken under pressure from any

quarter. The Chief Justice of India, on receipt of the

information from the Chief Justice of the High Court, after

being satisfied about the correctness and truth touching the

conduct of the Judge, may tender such advice either directly

or may initiate such action, as is deemed necessary or

warranted under given facts and circumstances. If

circumstances permit, it may be salutary to take the Judge

into confidence before initiating action. On the decision

being taken by the Chief Justice of India, the matter should

rest at that. This procedure would not only facilitate

nibbing in the bud the conduct of a Judge leading to loss of

public confidence in the courts and sustain public faith in

the efficacy of the rule of law and respect for the

judiciary, but would also avoid needless embarrassment of

contempt proceedings against the office bearers of the Bar

Association and group libel against all concerned. The

independence of judiciary and the stream of public justice

would remain pure and unsullied. The Bar Association could

remain a useful arm of the judiciary and in the case of

sagging reputation of the particular Judge, the Bar

Association could take up the matter with the Chief Justice

of the High Court and await his response for the action

taken thereunder for a reasonable period.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17

In case the allegations are against Chief Justice of a

High Court, the Bar should bring them directly to the notice

of the Chief Justice of India. On receipt of such complaint,

the Chief Justice of India would in the same way act as

stated above qua complaint against a Judge of the High

Court, and the Bar would await for a reasonable period the

response of the Chief Justice of India.

It would thus be seen that yawning gap between proved

misbehaviour and bad conduct in consistent with the high

office on the part of a non cooperating Judge/Chief Justice

of a High Court could be disciplined by self-regulation

through inhouse procedure. This inhouse procedure would fill

in the constitutional gap and would yield salutary effect.

Unfortunately, recourse to this procedure was not taken in

the case at hand, may be, because of absence of legal

sanction to such a procedure.

Since the 1st respondent has already demitted the

office, we have stated as above so that it would form a

precedent for future.

The writ petition is accordingly disposed of.