Topic: C Ravichandran Iyer v/s Justice AM Bhattacharjee

C Ravichandran Iyer v/s Justice AM Bhattacharjee
Equivalent citations: 1995 SCC (5) 457, JT 1995 (6) 339 - Bench: Ramaswamy, K, Hansaria B.L. (J) - Citation: 1995 Scc (5) 457 Jt 1995 (6) 339, 1995 Scale (5)142 - Date Of Judgment: 05/09/1995

Discussion of the conduct of judge and pass resolution by bar council, bar association or group of practicing advocates


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 appreciation for their valuable assistance.

The SCBA,    instead of filing written submissions sent a note with proposals to     reopen the case; to issue notice to all the Bar Associations in the country and refer the matter to a Bench of    not less than five, preferably seven, Judges for decision after hearing them all. We do not think that it is necessary to accede to this suggestion.

The petitioner in a well-documented petition stated and argued with commitment that the news published in various national newspapers do prove that respondents     2 to 4 had pressurised the     1st respondent to resign from the office as Judge for his alleged misbehaviour. The    Constitution provides for independence of    the Judges of     the higher courts, i.e., the Supreme Court and the High Courts. It also lays down in proviso [a] to clause (2) of Article 124; so too in    Article 217 (1) proviso (a) and Article 124    (4), procedure for voluntary resignation by a Judge, as well as for compulsory removal, respectively from office in     the manner prescribed therein and in accordance with the Act and the Rules made thereunder. The acts and actions of     the respondents 2 to 4 are unknown to law, i.e., removal by forced resignation, which is not only unconstitutional but also deleterious to the independence of the judiciary. The accusations against the 1st     respondent without proper investigation by an independent agency seriously damage the image of judiciary and efficacy of judicial adjudication and thereby undermine credibility of the judicial     institution itself. Judges    are not     to be    judged by the Bar. Allowing adoption of such demands by    collective pressure rudely shakes the confidence and competence of judges of integrity, ability, moral    vigour and ethical firmness, which in turn, sadly destroys    the very foundation of     democratic polity. Therefore, the pressure tactics by the Bar requires to be nibbed in the bud. He, therefore, vehemently     argued     and requested the Court to     adopt such procedure    which would safeguard the independence of the judiciary and protect the judges from pressure through unconstitutional     methods to demit the office.

Shri Chagla in his affidavit and Shri Nariman appearing for the     BBA explained the circumstances that led the BBA to pass the resolution requesting     the 1st respondent to demit his office as a Judge in the interest of the institution. It is stated in the affidavit that though initially he had in his custody the documents to show that the 1st respondent had negotiated    with Mr. S.S. Musafir,     Chief Executive of Roebuck Publishing, London and     the acceptance     by the     1st respondent for     publication and sale     abroad     of a    book authored by him, viz., "Muslim Law and the Constitution" for two years at a     royalty of US$80,000 [Eighty thousand U.S. Dollars] and an inconclusive     negotiation for US$75,000 [Seventy five thousand U.S. Dollars] for overseas publishing rights of his book "Hindu Law     and the Constitution" [2nd Edn.],    he did not    divulge     the information but    kept confidential. From about late    1994, there was considerable agitation amongst the members    of respondents    3 and 4 that certain persons     whose names were known to all and who were seen in     the court and were being openly talked about, were bringing influence over the     1st respondent and could "influence the course of judgments of the former Chief Justice of Bombay". "The names of such persons though known are not     being mentioned here since the former Chief Justice of Bombay has resigned     as Chief Justice and    Judge of the Bombay High Court". It     was also rumoured that "the former Chief Justice of Bombay has been paid a large sum of money in foreign exchange purportedly as royalty    for a book written by him, viz., "Muslim Law and the Constitution". The amount of royalty appeared to be totally disproportionate to what a    publisher abroad would be willing to pay for foreign publication of    a book    which might be of academic interest within India [since the book was a dissertation of Muslim Law in    relation to the Constitution of India]. There was a growing suspicion at the Bar that the amount might have been paid for reasons other     than the ostensible    reason". He further stated that the 1st respondent himself had discussed with the Advocate General on February     14, 1995 impressing upon the latter that the Chief Justice "had     decided to proceed on leave from    the end of February and would resign in April 1995". The Advocate General had conveyed it to Shri Chagla and other members of the Bar. By then, the financial dealings referred to above were neither known to the public nor found mention in the press reports. Suddenly on February 19, 1995, the advocates found to their surprise a press interview published in Times of India     said to have    been given by the 1st respondent    stating     that "he had     not seriously checked the antecedents of the publishers and it was possible that he had made     a mistake in accepting the offer". He was not contemplating to resign from judgship at that stage and was merely going on medical leave for which he had    already applied for and was granted. The BCMG passed a resolution on February 19,     1995 seeking    "resignation forthwith" of the 1st respondent. On February 21, 1995, the BBA received a requisition for holding its General    Body meeting to discuss the financial dealings said to have been had by    the 1st     respondent "for a purpose other than     the ostensible purpose thereby raising a serious doubt as to the integrity of the Chief Justice" The meeting was scheduled to be held     at 2.15 p.m. on February 22, 1995 as per its bye- laws. The 1st respondent appears to have rung up Shri Chagla in the     evening on February    21, 1995 but    he was     not available. Pursuant to a contact by Shri W.Y. Yande, the President of AAWI, at    the desire of Chief Justice to meet him, Shri Chagla and Shri Yande met the 1st respondent at his residence     at 10.00 a.m. in the presence of two Secretaries of    the 1st     respondent, who stated thus to Shri Chagla as put in his affidavit :

"...The Bar Council of Maharashtra and

Goa had already shot an arrow and that

the wound    was still fresh and requested

me to ensure that     he would not be hurt

any further by a resolution of the

Bombay Bar Association. The     1st

respondent     informed me    that he had

already agreed to resign    and in     fact

called for     and showed me a letter dated

17th February, 1995 addressed by him to

the Honourable the Chief Justice of

India in which he     proposed to go on

medical leave for a month and that at

the end of the leave or even earlier he

proposed to tender his resignation".

They had reminded the 1st respondent of the assurance given to the Advocate    General     expressing his desire to resign and he conveyed     his personal inconveniences to be encountered etc. The 1st respondent assured them that he would "resign within a     week which resignation would be effective some    10 or 15 days    thereafter and    that in     the meanwhile he would not do any judicial work including delivery of any judgment". Shri Chagla appears to have told the 1st respondent that though he    would not give an assurance, he would request the members of the Association to postpone the meeting and he had seen that the meeting was adjourned to 5.00 p.m.     of March 1, 1995. On enquiry being made on     March 1, 1995 from the Principal Secretary to the 1st respondent whether the 1st respondent had tendered his resignation, it     was replied in negative which showed that the 1st     respondent had     not kept his promise. Consequently, after full discussion, for and against, an    overwhelming majority of 185 out of 207 permanent members resolved in the meeting held on March    1, 1995     at 5.00 p.m. demanding the resignation of the 1st respondent.

Since the    1st respondent    has already resigned,     the question is whether a    Bar Council or Bar Association is entitled to pass resolution demanding a judge to resign, what is     its effect on the independence of the judiciary and whether it is constitutionally     permissible. Shri Nariman contended that    the Supreme Court and the High Court are two independent constitutional institutions. A High Court is not subordinate to the Supreme Court though constitutionally the Supreme Court has the     power    to hear appeals from     the decisions or orders or     judgments of the High Courts or any Tribunal or quasi-judicial authority in the country.     The Judges and the Chief Justice    of a High Court are     not subordinate to the     Chief     Justice of    India.     The constitutional process of removal of a Judge as provided in Article 124 (4) of the Constitution is only     for proved misbehaviour or incapacity.     The    recent     impeachment proceedings against Justice V. Ramaswami and its fall-out do indicate that the process of impeachment is cumbersome and the result uncertain. Unless corrective steps are taken against judges    whose conduct is perceived by the Bar to be detrimental to    the independence of the judiciary, people would lose faith in the efficacy of judicial process. Bar being a collective voice of the court concerned     has responsibility and owes duty to maintain independence of the judiciary. It is its obligation to bring it to the notice of the Judge concerned the perceived misbehaviour or incapacity and if    it is not voluntarily    corrected they    have to take appropriate measures to have it corrected. Bar is not aware of any other procedure than the one under Article 124 (4) of the Constitution, and the Act. Therefore, the BBA, instead of proceeding to the press, adopted democratic process to pass the resolution, in accordance with its bye-laws, when all attempts made by it proved abortive. The conduct of the Judge    betrayed their confidence    in his voluntary resignation. Consequently, the BBA was constrained to pass the said resolution. Thereby it had not transgressed     its limits. Its action is in consonance with its bye-laws and in the best tradition to maintain independence of     the judiciary. Shri     Nariman also cited the instance of    non- assignment of work to    four Judges of the Bombay High Court by its     former     Chief Justice     when some allegations of misbehaviour were imputed to them by the Bar. He, however, submitted that    in the    present case the allegations    were against the Chief Justice himself, and so, he could not have been approached. He urged that if some guidelines could be laid down by this Court in such cases, the same would be welcomed.

The counsel appearing for the BCMG, who stated that he is its member, submitted that when the Bar believes that the Chief Justice has committed misconduct, as an elected body it is its duty     to pass a resolution after full discussion demanding the Judge to act in defence of independence of the judiciary by demitting his office.

Shri Salve argued that independence of the judiciary is paramount. Judges should not be kept under pressure. Such procedure which     would be conducive to maintain independence of the judiciary and at the same time would nib the evil in the bud, needs to be adopted. The tendencies of unbecoming conduct on the part of erring Judges would     betray     the confidence of the litigant public in    the efficacy of the judicial process. In the light of the previous experience, it is for the    Court to evolve a simple and effective procedure to meet the exigencies.

The learned Attorney General    contended that     any resolution passed by any Bar    Association tantamounts to scandalising the court entailing contempt of the court. It cannot coerce the Judge to resign. The pressure brought by the Chief Justice of India     upon the Judge would be constitutional but it should be left to the Chief Justice of India to impress upon    the erring Judge to    correct     his conduct. This procedure would    yield salutary    effect.     The Chief Justice of India     would adopt such procedure as is appropriate to    the situation.    He cited the advice tendered by Lord     Chancellor of England to Lord Denning, when     the latter was involved in     the controversy over his writing on the jury trial and the composition of the black members of the jury, to demit the office, which he did in grace. Rule of     Law and Judicial Independence     - Why    need to be preserved?

The diverse contentions give rise to the question whether any Bar Council or Bar Association has the right to pass resolution     against the conduct of a Judge perceived to have committed misbehaviour and, if so, what is its effect on independence     of the judiciary. With a view to appreciate the contentions in their proper perspective, it is necessary to have     at the     back of our mind the     importance of     the independence of     the judiciary.     In a democracy governed by rule of law under written    Constitution, judiciary is sentinel on the qui vive to protect the fundamental rights and to poise even scales of justice between the citizens and the State or the States inter se. Rule of law and judicial review are basic features of     the Constitution. As     its integral constitutional structure, independence of     the judiciary is an essential attribute of rule of law. In S.P. Gupta vs. Union of India [(1981) Supp. SCC 87] in paragraph 27, this Court held that if there is     one principle which runs through the entire fabric of the Constitution it is the principle of the rule of law, and under the Constitution it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making    the rule of law meaningful and effective. Judicial review     is one     of the     most potent weapons in the armoury of law. The judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against     executive excesses and misuse     or abuse of power by the     executive. It     is, therefore, absolutely essential that the judiciary must be    free from executive pressure or influence which has been     secured by making elaborate provisions in the Constitution with details. The independence of judiciary is     not limited only to     the independence from the executive pressure or influence; it is a wider     concept which    takes within its sweep independence from any other pressure and prejudices. It has    many dimensions, viz., fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the judges belong. Judicial individualism - whether needs protection? Independent judiciary is,     therefore, most essential when liberty of citizen is in danger. It then becomes the duty of the judiciary to poise the scales of justice unmoved by the powers (actual    or perceived)    undisturbed by     the clamour of the multitude. The heart of judicial independence is judicial individualism. The judiciary    is not a disembodied abstraction. It is composed of individual men and women who work    primarily on their own. Judicial individualism, in the language     of Justice Powell of     the Supreme Court of United States in his address to     the American Bar Association, Labour Law Section on August 11, 1976, is "perhaps one    of the    last citadels of jealously preserved individualism....".     Justice Douglas in     his dissenting opinion in     Stephen S. Chandler    v. Judicial Council of the Tenth Circuit of the United States [398 US 74:26 L.Ed. 2d 100] stated:

"No matter how strong an individual

judge's spine, the threat of punishment

-    the greatest    peril    to judicial

independence - would project as dark a

shadow whether    cast by political

strangers or by judicial    colleagues. A

federal judge must be independent of

every other judge... Neither one alone

nor any number banded together can act

as censor and place sanctions on him. It

is vital to preserve the opportunities

for judicial individualism."

He further     opined     that to give     the administrative officer any supervision or control over the exercise of purely judicial     function would be to destroy the    very fundamentals of     the theory of government. An     independent judiciary is     one    of the nation's     outstanding characteristics. Once a federal judge is confirmed by the Senate and takes his oath, he is independent of every other judge. He commonly works with other federal judges who are likewise sovereign. But neither one alone nor any number banded together     can act as censor and place    sanctions on him. Under the Constitution the only    leverage that can be asserted against him is impeachment, where pursuant to a resolution passed by the House, he is tried by the Senate, sitting     as a    jury. The tradition even bars political impeachments as evidenced by     the highly partisan,     but unsuccessful, effort to oust Justice Samuel of that Court in 1805.... There    is no power under the Constitution for one group of federal judges to censor any federal judge and no power to declare him inefficient and strip him of his power to act    as a judge. At     page 139 it was further pointed out that it     is time that an end be put to these efforts of federal judges to ride herd on other federal judges. This is a form    of `hazing' having no place under the Constitution. Federal Judges    are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or     family stake,    they can be impeached by Congress. But I search the Constitution in vain for any     power of surveillance which other federal judges have over those aberrations. Some judges may be displeasing to those who walk in more measured, conservative steps. But those idiosyncrasies can be of no possible constitutional concern to other federal judges. It is time to put an end to the monstrous practices that seem about to overtake us....". In Chandler, a United States District Judge had filed a motion for leave to file a petition for a writ of mandamus or alternatively a writ of prohibition addressed to     the Judicial Council of the Tenth Circuit. His petition sought resolution of questions of first impression     concerning, inter alia, the scope and constitutionality of the powers of the Judicial Councils under 28 USC 88 137 and 6 332. The Judicial Council of each federal circuit is     under    that statute, composed of the active circuit judges of     the circuit. Petitioner asked the Court to issue an order under the All     Writs Act telling the Council to "cease acting in violation of its powers and in violation of Judge Chandler's rights as a federal judge and an American citizen". Majority held that in essence,    petitioner challenged all orders of the Judicial Council relating to assignment of cases in the Western District of Oklahoma and fixing conditions on the exercise of his constitutional powers as     a Judge. Specifically, petitioner urged that the Council has usurped the impeachment     power, committed by the Constitution to the Congress exclusively.    While conceding that    the invoked statute conferred some     powers     on the Judicial Council, petitioner contended that the legitimate administrative purposes to which it may be turned, do not include stripping a judge     of his     judicial functions as, he claimed, was done there. No writ was issued.

The arch of the Constitution of India pregnant from its Preamble, Chapter III [Fundamental Rights] and Chapter IV [Directive Principles] is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice - social, economic and political - to every citizen through rule of law. Existing social inequalities need to be removed and equality in fact is accorded to     all people irrespective of caste, creed, sex,    religion or region subject to protective discrimination only through rule of law. The Judge cannot    retain his earlier passive judicial rule when he administers the law under the Constitution to give effect to the constitutional ideals. The extraordinary complexity of modern litigation requires him not merely to declare the rights of citizens but also to mould the relief warranted under     given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts. In this    ongoing     complex of adjudicatory process, the role of the Judge is not merely to interpret the law but    also to     lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined     in the Constitution meaningful and    reality. Therefore, the Judge is required to take judicial     notice     of the social and economic ramification, consistent with the theory of law. Thereby, the society demands active judicial roles which formerly were considered     exceptional but now a     routine. The Judge must act independently, if he is to perform the functions as expected of him and he must feel secure that such action of him will not lead to his own downfall. The independence is not assured for the Judge but to the judged. Independence to the Judge, therefore, would be both essential and proper. Considered judgment of the    court would guarantee     the Constitutional liberties which     would    thrive only in an atmosphere of judicial independence. Every endeavour should be made     to preserve independent judiciary as a citadel of public    justice     and public    security to    fulfil     the constitutional role assigned to the Judges.

The founding fathers of    the Constitution advisedly adopted cumbersome process of    impeachment as     a mode to remove a Judge from office for only proved misbehaviour or incapacity which implies that    impeachment process is     not available for minor abrasive    behaviour of a Judge. It reinforces that     independence to the Judge is of paramount importance to sustain, strengthen and elongate rule of law. Parliament sparingly resorts to the mechanism of impeachment designed under    the Constitution by political process as the extreme measure     only upon a finding of proved 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 his duties and on/off    court behaviour     except as per     the procedure provided under Articles 124 (4) and (5) of the Constitution, and Act and the Rules.    Thereby, equally no other agency or authority like the C.B.I., Ministry of Finance, the Reserve Bank of India [respondents Nos. 8 to 10] as    sought for by the petitioner, would investigate into the conduct or acts or actions of a Judge. No mandamus or direction would     be issued to the Speaker of    Lok Sabha or Chairman of Rajya Sabha to initiate action for impeachment. It is true, as     contended by the petitioner,    that in K. Veeraswami v. Union of India [(1991) 3 SCC 655], majority of the Constitution Bench upheld    the power of the police to investigate into the disproportionate    assets alleged to be possessed by a Judge,    an offence under Section 5 of the Prevention of Corruption Act, 1947 subject to prior sanction of the    Chief Justice of India     to maintain independence of the judiciary. By interpretive process, the Court carved out primacy to the role of the Chief Justice of India, whose efficacy in a case like one at hand would be considered at a later stage.

Duty of     the Judge to maintain high standard of conduct. Its judicial individualism - whether protection imperative? Judicial office is essentially a public trust. Society is, therefore, entitled to except that a Judge must be a man of high     integrity, honesty and required to     have moral vigour, ethical firmness and impervious to corrupt or venial influences. He    is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence     in the integrity     and impartiality of     the court would be    deleterious to     the efficacy of judicial process.    Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code     of conduct is writ    large for judicial officers to emulate and imbibe high moral     or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct    which would generate public confidence, accord dignity to the judicial     office     and enhance public    image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than expected of a layman and also higher than expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher    than those deemed acceptable for others. Therefore, the Judge can    ill-afford to    seek shelter from the fallen standard in the society. In Krishna Swami v. Union of India & Ors. [(1992) 4 SCC 605 at    650-51], one of us (K. Ramaswamy, J). held that the holder of office of the Judge     of the Supreme Court or the High Court should, therefore,     be above the     conduct of ordinary mortals in the society. The standards of judicial behaviour, both     on and     off the Bench, are normally high. There cannot, however, be any fixed or set principles, but an unwritten code of conduct of well-established traditions is the    guidelines for    judicial conduct. The conduct    that tends to undermine the     public confidence in the character, integrity or impartiality of the Judge must be eschewed. It is expected of     him to voluntarily set forth wholesome standards of    conduct     reaffirming fitness     to higher responsibilities.

To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and    upright     behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all     the frailties and foibles, human failings and weak character which may be found in those in other     walks of life. They should be men    of fighting faith with tough fibre     not susceptible to    any pressure, economic, political or     any sort. The actual as well as the apparent independence of judiciary would     be transparent only when the office holders endow those qualities which would operate as     impregnable fortress against surreptitious attempts to undermine the independence of     the judiciary.     In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the    democracy, liberty and justice     and the antithesis rocks the bottom of the rule of law.

Scope and meaning of "misbehaviour" in Article 124 (4): Article 124 (4) of the Constitution sanctions action for removal of a Judge on proved misbehaviour or incapacity. The word "misbehaviour" was not advisedly defined. It is a vague and elastic word and    embraces within its sweep different facets of conduct as opposed to good conduct. In the Law     Lexicon by P. Ramanatha Aiyar, 1987    Edn. at page 821, collected    from several decisions, the meaning of the word `misconduct', is stated to be vague and relative term. Literally, it means wrong conduct or improper conduct. It has to be construed with reference to the subject matter and the context wherein the term occurs having regard to the scope of the Act or the statute under consideration. In the context of disciplinary proceedings against Solicitor, the word misconduct     was construed    as professional misconduct extending to conduct "which shows him to be unworthy member of the legal profession." In     the    context     of misrepresentation made     by a pleader, who obtained adjournment of    a case    on grounds to his knowledge to be false a     Full Bench of the Madras High Court in Re: A First Grade Pleader [AIR 1931 Mad. 422 = ILR 54 Mad. 520] held that if     a legal practioner deliberately made, for     the purpose of impeding the course of justice, a statement to the court which he believed to be untrue and thereby gained an advantage for his client, he was guilty of gross improper conduct and as such rendered himself liable to be dealt with by the    High Court in the exercise of its    disciplinary jurisdiction. Misconduct on the part of an arbitrator was construed to mean that misconduct does not     necessarily comprehend or include misconduct of a fraudulent or improper character, but    it does comprehend and include action on the part of     the arbitrator     which is, upon the face of     it, opposed to all     rational and    reasonable principles    that should govern the procedure of any person who is called upon to decide upon questions in difference and dispute referred to him by the parties. Misconduct in office was construed to mean unlawful behaviour or include negligence by public officer, by which the rights of the party have    been affected. In Krishna Swami's case (supra), one of us, K. Ramaswamy, J.,    considered the    scope of `misbehaviour' in Article 124 (4) and held in paragraph 71 that "every act or conduct or even error    of judgment or negligent acts by higher judiciary perse does not amount to misbehaviour. Willful abuse of judicial office, Willful misconduct in the office, corruption, lack of integrity, or any other offence involving moral     turpitude would be misbehaviour. Misconduct implies actuation of some degree of mens rea by the doer. Judicial finding of guilt of grave crime is     misconduct. Persistent failure to perform    the judicial duties of     the Judge or Willful abuse     of the     office dolus malus would be misbehaviour. Misbehaviour would extend to conduct of the Judge in or beyond the execution of judicial office. Even administrative actions    or omissions too need accompaniment of mens rea."

Guarantee    of tenure and its    protection by     the Constitution would not, however, accord sanctuary for corruption or    grave misbehaviour. Yet every action or omission by a judicial     officer in the performance of his duties which is not a good conduct necessarily, may not be misbehaviour indictable     by impeachment, but its insidious effect may be pervasive and may produce deleterious effect on the    integrity and    impartiality of the Judge. Every misbehaviour in juxtaposition     to good behaviour, as a constitutional tautology, will not support impeachment but a misbehaviour which is not a good behaviour may be improper conduct not befitting to the standard expected of a Judge. Threat of impeachment process    itself may swerve a Judge to fall prey to misconduct but it serves disgrace to     use impeachment process for minor    offences or abrasive conduct on the part of a Judge. The bad behaviour of one Judge has a rippling effect     on the     reputation of    the judiciary as a whole. When the edifice of judiciary    is built heavily on public confidence and respect,     the damage by an obstinate Judge would rip apart the entire judicial structure built in the Constitution.

Bad conduct or bad behaviour of    a Judge, therefore, needs correction to prevent erosion of public confidence in the efficacy    of judicial process    or dignity of     the institution or    credibility to    the judicial office held by the obstinate Judge. When the Judge cannot be removed by impeachment process for such conduct but generates widespread feeling of    dissatisfaction     among    the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the Judge either to desist from    repetition or to demit the office in grace? Who would be the appropriate authority? Who would be the principal mover in     that behalf? The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in to stem     erosion of public confidence in the    efficacy of judicial process. Whether the Bar of that Court has any role to play either in an attempt to correct the perceived fallen standard or is entitled to make a demand by a resolution or a group     action to pressurize the Judge to resign his office as a Judge? The resolution to these question involves delicate but    pragmatic approach to the questions of constitutional law.

Role of     the Bar Council or Bar Associations - whether unconstitutional?

The Advocates Act, 1961 gave autonomy to a Bar Council of a State or    Bar Council of     India    and Section 6     (1) empowers them to make    such action deemed necessary to set their house in     order,     to prevent fall in    professional conduct and to punish    the incorrigible as not befitting to the noble profession apart from admission of the advocates on its    roll. Section 6 (1) (c) and rules made in    that behalf, Sections 9, 35, 36,    36B and 37 enjoin it to entertain and     determine cases of    misconduct against advocates on its roll.     The members of the judiciary     are drawn primarily     and invariably     from the Bar at different levels. The high moral, ethical and professional standards among the members of the Bar    are pre-conditions even for high ethical standard of the Bench. Degeneration thereof inevitably has    its eruption and tends to reflect the other side of the coin. The Bar Council, therefore, is enjoined by the Advocates Act to    maintain high    moral,    ethical     and professional standards. which of late is     far    from satisfactory. Their power under the Act ends thereat     and extends     no further. Article     121 of the    Constitution prohibits discussion by the members of the Parliament of the conduct of any Judge of the Supreme Court or of High Court in the    discharge of his duties except upon a motion     for presenting an address to the    President praying for     the removal of the Judge as provided under Article 124 (4) and (5) and in the manner laid down under the Act, the Rules and the rules of     business of    the Parliament consistent therewith. By necessary implication, no other forum or fora or platform is available for discussion of the conduct of a Judge in the discharge     of his duties as a Judge of     the Supreme Court or the High Court, much less a Bar Council or group of practising advocates. They     are prohibited to discuss the conduct of     a Judge in the discharge of     his duties or to pass any resolution in that behalf. Section 2    (c) of    the Contempt of Courts     Act, 1971, defines "criminal contempt" to     mean publication whether by words spoken or written, signs, visible representations or otherwise of any matter or the doing of any act whatsoever which scandalises or tends to scandalise, lower or tends to lower the authority of any court or prejudices or interferes or tends to interfere    with the due course of any judicial proceedings, or     interferes or    tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.

In Halsbury's Laws of England [4th Ed.] Volume    9 in para 27 at page 21, it is stated that scandalising the court would mean any act done or writing    published which is calculated to bring a court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court. Scurrilous abuse of a Judge or court, or attacks on the personal character of a Judge, are punishable contempts. Punishment is inflicted, not for     the purpose of protecting either the     court as a whole or the individual Judges of the court from repetition of the attack, but for protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority     of the     tribunal is undermined or impaired. In consequence, the court     has regarded    with particular seriousness    allegations of partiality or bias on the part of a    Judge or a court. Criticism of a Judge's conduct or of the conduct of    a court even    if strongly worded,     is, however,     not contempt, provided that     the criticism is fair, temperate and made in good faith and is not directed to the personal character of a Judge or to the impartiality of a Judge or court.

In Oswald's Contempt of Court [3rd Edn.] 1993 at page 50 it is stated that libel upon courts is made contempt "to keep a    blaze of glory around them, and to deter people from attempting to render them contemptible in the eyes of the public.... A libel upon a court is a     reflection upon the King, and telling the    people that the administration of justice is in week or corrupt     hands, that the fountain of justice itself    is tainted, and consequently that judgments which stream out of that fountain must be impure     and contaminated". A libel upon a Judge in his judicial capacity is a contempt, whether it concerns what he did in court, or what he     did judicially     out of it. At page 91, it is stated that all publications which offend against the dignity of the court, or are calculated to prejudice the course of justice, will constitute contempt. One of the natures of offences is scandalising the courts. In Contempt of Court [2nd Edn.] by C.J. Millar at    page 366, Lord     Diplock is quoted from Chokolingo v. AG of Trinidaad and Tobago [(1981) 1 All ER 244 at 248], who spoke for the Judicial Committee summarising the     position thus: "`Scandalising the court' is a convenient way of describing a publication which, although it does     not relate to any specific case either past or pending or any specific Judge, is a scurrilous attack on the judiciary as a whole,    which is calculated to undermine the authority of the courts and     public     confidence in     the administration of justice." In     Borrie and Lowe's Law of Contempt [2nd Edn.] at     page 226 it is stated that     the necessity for this branch of contempt lies in the idea that without well-regulated    laws a    civilised community cannot survive. It is therefore thought important to maintain the respect and dignity of     the court and its officers, whose task it     is to    uphold and enforce the law, because without such respect, public faith in the administration of justice would be undermined and the law itself would fall    into disrepute. Even in the latest Report on Contempt of Court by Phillimore Committee to revise     the penal enforcement of contempt, adverting to Lord Atkin's dictum that courts are satisfied to leave to    public opinion attacks or comments derogatory or scandalous to them, in    paragraph 162,     the Committee had stated that at     one stage "we considered whether such conduct should be subject to penal sanctions at all. It     was argued that any judge who was attacked would have the protection of     the law of defamation, and that no further protection is necessary. We have concluded, however, that some restraints are still required, for two reasons. First, this branch of the law of contempt is concerned with the protection     of the administration of justice,     and especially the    preservation of     public confidence in     its honesty and impartiality; it is only    incidentally, if at all, concerned    with the personal reputations     of Judges. Moreover, some     damaging attacks, for example upon an unspecified group of judges, may not    be capable of being made the subject of libel proceedings     at all. Secondly, Judges commonly     feel constrained by their position not to take action in reply to criticism, and they have no proper forum in which to do so such as other public figures may have. These considerations lead us to     the conclusion that there is need for     an effective     remedy.....against imputations of improper or corrupt judicial conduct." The Contempt of Courts Act, 1971 engrafted suitable amendments accordingly.

Freedom of expression and duty of Advocate:

It is true that    freedom     of speech and expression guaranteed by Article 19 [1] (a) of the Constitution is one of the most precious liberties in any democracy. But equally important is    the maintenance of respect for judicial independence which alone would protect the life, liberty and reputation of the citizen. So the nation's interest requires that criticism    of the    judiciary must be measured, strictly rational, sober and proceed from the highest motives without being coloured    by partisan spirit or pressure tactics or intimidatory attitude.    The Court must, therefore, harmonise constitutional values of free    criticism and the need for a fearless curial     process and its presiding functionary, the Judge. If freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it; but     if the     court considered the attack on the Judge or Judges scurrilous, offensive,    intimidatory or malicious, beyond condonable limits, the    strong arm of the law must strike a blow on him who challenges the supremacy of the rule of     the law by fouling its source and stream. The power to punish the contemner is, therefore, granted to the court not because Judges need the protection but    because     the citizens need an impartial and strong judiciary. It is enough if all of us bear    this in     mind while expressing opinions on courts    and Judges. But the question that still remains is    when the Bar of the Court, in which the Judge occupies the     seat of office, honestly believes that the conduct of the Judge     or of    the Bench fouls the fountain of justice, or undermines or tends to undermine the dignity expected of a    Judge and the people are tending to disbelieve the impartiality or     integrity of the Judge, who should bear the duty and responsibility to have it/them corrected so as to restore the respect for judiciary? In Brahma    Prakash Sharma & Ors. vs. The State of Uttar Pradesh     [AIR    1954 SC 10] the Bar     Association passed resolutions and     communicated to the superior     authorities that certain judicial officers were incompetent due to their conduct in the court and High Court took action for contempt of the    court. The question was whether the members of the Executive Committee of the Bar Association had committed contempt of the court? This Court held that the attack on a Judge is a wrong done to the public    and if    it tends to create apprehension in the minds of the people regarding the integrity, ability or fairness     of the     Judge and to deter actual    and prospective litigants from placing complete reliance upon the court's administration of justice, or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties, it would be scandalising the court and be dealt with accordingly. The threat of     action on    vague    grounds     of dissatisfaction would create a dragnet that would inevitably sweep into its     grasp    the maverick,    the dissenter,     the innovator, the     reformer - in one word the unpopular. Insidious attampts pave way for removing the inconvenient. Therefore, proper care should be    taken    by the     Bar Association concerned.    First it should gather specific, authentic and acceptable material which would show or tend to show     that conduct on the part of    a Judge     creating a feeling in the mind of a reasonable person doubting     the honesty, integrity, impartiality or act which     lowers     the dignity of the office    but necessarily, is not impeachable misbehaviour. In all fairness to the Judge, the responsible office bearers    should meet him in camera after securing interview and apprise the Judge of the information they had with them. If     there    is truth in it, there is every possibility that the Judge would mend himself. Or to avoid embarrassment to the Judge, the office bearers can approach the Chief Justice of that High Court and apprise him of the situation with    material they have in    their possession and impress upon the Chief     Justice to deal with     the matter appropriately.

Primacy of the Chief Justice of India

It is true that this Court has neither administrative control over the High    Court nor power on the judicial side to enquire into the misbehaviour of a Chief Justice or Judge of a High Court. When the Bar of the High Court concerned reasonably and    honestly doubts     the conduct of the Chief Justice of that court, necessarily the only authority under the Constitution that could be tapped is the Chief Justice of India, who in common parlance is known as the head of the judiciary of the country. It is of importance to emphasise here that impeachment is meant to be a drastic remedy and needs to be used in serious cases. But there must exist some other means to ensure that Judges do not abuse the trust the society has in them. It seems to us that self-regulation by the judiciary is the only method which can be tried     and adopted. Chief    Justice of India is the first among     the Judges. Under Articles 124(2)    and 217(1), the President of India always consults     the Chief Justice of India for appointment of    the Judges in the Supreme Court and    High Courts. Under Article 222, the President transfers Judges of High Courts in consultation with the Chief Justice of India. In Supreme Court Advocates-on-Record Association vs. Union of India [(1993) 4 SCC 441] it was reinforced and the Chief Justice of India was    given center stage position.     The primacy and importance of the office    of the Chief Justice was recognised judicially by this Court in Veeraswami's case [supra] in para 60 at page 709. This Court, while upholding power to register case     against a retired Chief Justice of the High Court, permitted to proceed with the investigation for the alleged offence under Section 5 of the Prevention of Corruption Act. The    Constitution Bench per majority, however, held that the     saction and approval of the Chief Justice of India is a condition precedent to register a case and investigate into the matter and sanction for prosecution of the    said Judge by the President after consultation with the Chief Justice of India.

In Sub-Committee on Judicial Accountability [2nd case] [supra] also the same primacy had been accorded to the Chief Justice at page 72 thus:

"It would    also be     reasonable to assume

that the    Chief Justice    of India is

expected to find a desirable solution in

such a situation to avoid embarrassment

to     the learned    Judge    and to     the

Institution in a manner which is

conducive     to the independence of

judiciary and should the    Chief Justice

of India be of the view    that in the

interests     of the institution of

judiciary    it is     desirable for the

learned Judge to abstrain from judicial

work till     the final outcome    under

Article 124 (4), he would advise the

learned Judge accordingly. It is further

reasonable to assume that the concerned

learned Judge would ordinarily abide by

the advice of the Chief Justice of


International Bar    Association at     its 19th Biennial Conference held     at New     Delhi in October 1982     had adopted minimum standards for judicial     conduct. Paras 27 to 72 relate to judicial removal and discipline. Para 31 says that "the head of the Court may legitimately have     supervisory powers to control judges on administrative matters." In "Chilling Judicial Independence", Irving R. Kaufman, Chief Judge, U.S. Court of Appeals for the Second Circuit [See: Yale Law Journal     [Vol.88] 1978-79 p.681 at page 712] stated that it seems unwise to allow bureaucrats, whether lawyers or not, to determine, even in part,    the fate of Judges. The sheer magnitude of the disciplinary engine would be a major nuisance. Judges frequently receive hostile or threatening correspondence from disappointed litigants. Creation of a new disciplinary scheme     would    transform a minor annoyance into a     constant threat of official action. At the very least, it would require time-consuming responses by the     Judge.     Even if the    Judge were not eventually condemned, the    mere invocation     of the statutory provisions might taint him with a devastating stigma. The vestment of authority might remain but     the aura of    respect     and confidence so essential to the judicial function would be forever dissipated. He, therefore, suggested that pressure by the peers would yield salutary effect on the erring judge and, therefore, judicial system can     better     survive by pressure of the peers instead of disciplinary actions. At page 709 he stated: "Peer pressure is a potent tool. It should not be underestimated because it is neither exposed to public view nor enshrined in law".

Harry T. Edwards, Chief Judge, U.S. Courts of Appeal for the     District of Columbia Circuit    [See: Michigan     Law Review (Vol.87)     765] in his article "Regulating Judicial Misconduct and     Divining "Good Behaviour"    for Federal Judges", after    the 1980 Act, suggested that "I believe that federal judges    are subject to some measure of control by peers with respect to behaviour or intimidation that adversely affects the work of the court and that does not rise to     the level of    impeachable misconduct". "I would submit that the ideal     of judicial independence is     not compromised when judges are monitored and are regulated by their own peers". This     limited system     of judicial self- regulation resists no constitutional dilemma    as long as removal power remains with Congress. "I argue that judiciary alone should monitor this bad behaviour through a system of self-regulation." He    opined    that self-regulation would bridge the hiatus between bad     behaviour and     impeachable conduct to yield salutary effect.

Bearing all the above in mind, we are of the considered view that where the complaint relates     to the Judge of the High Court, the Chief    Justice of that High Court, after verification, and if necessary, after confidential enquiry from his independent source, should satisfy himself about the truth of the imputation made by the Bar     Association through its office bearers against the Judge and consult the Chief Justice of India, where deemed necessary, by placing all the     information with him. When the Chief     Justice of India is seized of the matter, to avoid embarrassment to him and to    allow fairness    in the    procedure to be adopted in furtherance thereof, the Bar should suspend    all further actions     to enable the Chief Justice of     India     to appropriately deal with the    matter.     This is necessary because any action he    may take must not only be just but must also appear to be just to all concerned, i.e., it must not even appear to have been taken under pressure from any quarter. The Chief Justice of India,    on receipt of     the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may    initiate such action, as is deemed necessary or warranted under given facts and circumstances.     If circumstances permit, it may be salutary to take the Judge into confidence     before initiating action. On    the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure    would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of     law and respect for     the judiciary, but    would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and     group    libel against    all concerned.     The independence of     judiciary and    the stream of public justice would remain pure and    unsullied. The Bar Association could remain a useful arm of the judiciary and in the case of sagging     reputation of the    particular Judge, the     Bar Association could take up the matter with the Chief Justice of the    High Court and await his response for the action taken 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 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.