# C. RA VICHANDRAN IYER v. JUSTICE A.M. BHATTACHARJEE

- **Citation:** [1995] Supp. 3 S.C.R. 319
- **Court:** Supreme Court of India
- **Decided:** 1995-09-05
- **Bench:** K. Ramaswamy, B.L. Hansaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-ra-vichandran-iyer-v-justice-a-m-bhattacharjee-13298
- **Pages:** 31

## Headnote

B
Constitution of India-A1ticles 124(4) and 121-Impeachment-Judicial misconduct-Removal of a Judge on proved misbehaviour or incapacity-Word 'misbehaviour'-Scope and meaning-Bad conduct or bad
behaviour of a Judg&-Role of Bar Council or Bar Associations-Plimacy of C
Chief Justice of India-Self regulation by judiciary.
Rule of Law-Independence of Judicia1y-Judicial individualismDuty of Judge to maintain high standard of conduct-Freedom of expression
and duty of advocate-Contempt of cowt.
The petitioner, a practising advocate, initiated a public interest
litigation under Article 32 of the Constitution seeking to issue an appropriate writ, order or direction restraining the Bar Council of
Maharashtra and Goa, Bombay Bar Association and the Advocates' Association of Western India, respondents 2 to 4 respectively, cQercing the
1st. Respondent, Chief Justice of Bombay High Court, to resign from the
office as Judge. He sought an investigation by the Central Bureaue of
Investigation etc. into the allegation made against the 1st. respondent, and
if the same were found true, to direct the 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. This Court
issued notice to respondents 2 to 4 and rejected the prayer for interim
direction to the President of India and the Union of India not to giv~ effect
to the resignation by the 1st respondent.
D
E
F
The petitioner alleged that the news published in various national G
newspapers proved that the respondents 2 to 4 had pressurised the 1st
respondent to resign from the office as Judge for his alleged misbehaviour;
that the acts and action of the respondents were unknown to law, i.e.,
removal by forced resignation, which was not only unconstitutional but
also deleterious to the independence of the Judiciary; that the accusations
against the Ist respondent without proper investigation by an independent H
319
320
SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
A
agency seriously damaged the image of judiciary and efficacy of judicial
adjudication and thereby undermined the credibility of the judicial system
itself; that the Judges are not to be judged by the Bar and allowing
adoption of such demands by collective pressure rudely shakes the confidence and competence of Judges of integrity, ability, moral vigour and
B
ethical firmness which destroyed the very foundation of democratic polity.
The petitioner 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.
The respondents 2 to 4 stated that they had in their custody the
C
documents to show that the 1st respondent had negotiated with a Publishing Company of London and the acceptance by the 1st respondent for
publication and sale abroad of a book authored by him for two years at a
royalty US $ 80,000 and an inclusive negotiation for US $ 75,000 for
overseas publishing rights of this another book; that from ab
0out late 1994,
D there was considerable agitation amongst the members of the bar that
certain persons were bringing influence over the 1st respondent and could
influence the course of his judgment; that the 1st respondent himself had
discussed with the advocate General impressing upon the latter that the
former had decided to proceed on leave and would resign in April 1995;
E
F
that 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 Publisher and it was possible that he had made a mistake in
accepting the offer. The Bar Council of Maharashtra and Goa passed a
resolution seeking, resignation forthwith' of the 1st respondent, who assured the Bar that he would res(gn within a week. However, he had not
kept his promise. Consequently, after full discussion, for and against, an
over whemling majority

## Text

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C. RA VICHANDRAN IYER
A
v.
JUSTICE A.M. BHATTACHARJEE
SEPTEMBER 5, 1995
[K. RAMASWAMY AND B.L. HANSARIA, JJ]
B
Constitution of India-A1ticles 124(4) and 121-Impeachment-Judicial misconduct-Removal of a Judge on proved misbehaviour or incapacity-Word 'misbehaviour'-Scope and meaning-Bad conduct or bad
behaviour of a Judg&-Role of Bar Council or Bar Associations-Plimacy of C
Chief Justice of India-Self regulation by judiciary.
Rule of Law-Independence of Judicia1y-Judicial individualismDuty of Judge to maintain high standard of conduct-Freedom of expression
and duty of advocate-Contempt of cowt.
The petitioner, a practising advocate, initiated a public interest
litigation under Article 32 of the Constitution seeking to issue an appropriate writ, order or direction restraining the Bar Council of
Maharashtra and Goa, Bombay Bar Association and the Advocates' Association of Western India, respondents 2 to 4 respectively, cQercing the
1st. Respondent, Chief Justice of Bombay High Court, to resign from the
office as Judge. He sought an investigation by the Central Bureaue of
Investigation etc. into the allegation made against the 1st. respondent, and
if the same were found true, to direct the 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. This Court
issued notice to respondents 2 to 4 and rejected the prayer for interim
direction to the President of India and the Union of India not to giv~ effect
to the resignation by the 1st respondent.
D
E
F
The petitioner alleged that the news published in various national G
newspapers proved that the respondents 2 to 4 had pressurised the 1st
respondent to resign from the office as Judge for his alleged misbehaviour;
that the acts and action of the respondents were unknown to law, i.e.,
removal by forced resignation, which was not only unconstitutional but
also deleterious to the independence of the Judiciary; that the accusations
against the Ist respondent without proper investigation by an independent H
319
320
SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
A
agency seriously damaged the image of judiciary and efficacy of judicial
adjudication and thereby undermined the credibility of the judicial system
itself; that the Judges are not to be judged by the Bar and allowing
adoption of such demands by collective pressure rudely shakes the confidence and competence of Judges of integrity, ability, moral vigour and
B
ethical firmness which destroyed the very foundation of democratic polity.
The petitioner 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.
The respondents 2 to 4 stated that they had in their custody the
C
documents to show that the 1st respondent had negotiated with a Publishing Company of London and the acceptance by the 1st respondent for
publication and sale abroad of a book authored by him for two years at a
royalty US $ 80,000 and an inclusive negotiation for US $ 75,000 for
overseas publishing rights of this another book; that from ab
0out late 1994,
D there was considerable agitation amongst the members of the bar that
certain persons were bringing influence over the 1st respondent and could
influence the course of his judgment; that the 1st respondent himself had
discussed with the advocate General impressing upon the latter that the
former had decided to proceed on leave and would resign in April 1995;
E
F
that 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 Publisher and it was possible that he had made a mistake in
accepting the offer. The Bar Council of Maharashtra and Goa passed a
resolution seeking, resignation forthwith' of the 1st respondent, who assured the Bar that he would res(gn within a week. However, he had not
kept his promise. Consequently, after full discussion, for and against, an
over whemling majority of 185 out of 207 permanent members resolved in
the meeting demanding the resignation of the 1st respondent. It was
contended that the Supreme Court and the High Court are two independent constitutional institutions and a High Court is not subordinate
to the Supreme Court; that the constitutional process of removal of a
G Judge as provided in Article 124(4) is only for proved misbehaviour or
incapacity; that the Bar, being a collective voice of the court, has responsibility and owes duty to maintain independence of the judiciary and 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
H to take appropriate measures to have it corrected.
.,
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C.R. IYER v. AM. BHATIACHARJEE
321
The Attorney General contended that any resolution passed by any A
Bar Association tentamounts to scandilising the court entailing contempt
of the court and that it should be left to the Chief Justice of India to
impress upon the erring Judge to correct his conduct.
The question raised for consideration was 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.
Disposing of the writ petition, this Court
HELD : 1.1. 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 AssociaB
c
tion through its office bearers against the judge and consult the Chief D
Justice of India, where deemed necessary, by placing all the information
with him. When the Chief Justice of India is seized of the fi!atter 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
E
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 F
~uch 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 t~at. This procedure
would not only facilitate nipping in the bud the conduct of a Judge leading
to loss of public confidence in the courts and sustain public faith in the G
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 H
322
SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.
A
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 High
Court and await his response for the action taken thereunder for a
reasonable period. [348-E-H; 349-A-C]
B
c
1.2. In case the allegations are against chief Justice of a lligh 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 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. [349-D]
1.3. 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
D could be tapped is the Chief Justice of India, who in common parlance is
known as the head of the judiciary of the country. 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 the Judges do not abuse the trust
the society has in them. Self-regulation by the judic!ary is the only method
E
which can be tried and adopted. Chief Justice of India is the first among
the Judges. [346-D-F]
Yawning gap between proved misbehaviour and bad conduct in
consistent with the high office on the part of a non co-operting Judge/Chief
Justice of a High Court could be disciplined by self-regulation through
F
inhouse procedure, this inhouse procedure would fill in the constitutional .
gap and would yield salutary effect. [349-E]
2.1. In a democracy governed by rule of law under written constitution, judiciary is sentinel on the qui vive to protect the fundamental rights
G and to poise even scales of justice between the citizens and the State or the
State 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. [333-D]
2.2. The independence of judiciary is not limited only to the indeH
pendence from the executive pressure or influence; it is a wider concept
~-
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C.R. IYER v. AM. BHA IT ACHARJEE
323
which takes within its sweep independence from any other pressure and A
prejudices. It has many dimensions, viz., fearlessness of other power
centres, economic or political, and freedom from prejudices acc1uired and
nourished by the class to which the judge belong. [333-H; 334-A]
S.P. Gupta v.Union of llldia, [1981] Supp. SCC 87, relied on.
2.3. 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. [334-B]
Stephen S.Cliand!er v. Judicial Council of the Tenth Circuit of the
Ullited States, 398 US 74:26 L.Ed. 2d HIO, relied on.
2.4. The extraordinary complexity 01 modern litigation requires a
Judge 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 on
going 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 realty. Therefore, the Judge
is rec1uired 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 will not
B
c
D
E
F
lead to his mm downfall. The independence is not assured for the Judge
but to those judged. Independence to the Judge, therefore, would be both G
essential and proper considered judgmellt of the cowt would guarantee the
constitutional libe1ties which would tluivc only ill all atmo.5phere 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. [336-B-E]
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SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.
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3.1. Judicial office is essentially a public trust. Society is, therefore,
B
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entitled to expect that a Judge must be a man of high integrity, honesty
and required to have moral vigour, ethical firmness and impervious to
corrupt or venial influences. He is ret1uired 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 judicil;ll 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 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 c!mduct 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
D 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 c~_i:i._ill-afford to seek shelter from the
fallen standard in the society. [338-G-H; 339-A-C]
E
3.2. The founding fathers of the Constitution advisedly adopted
F
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
G Act and the rules made thereunder. [336-F-H]
3.3. Our Constitution permits removal of the Judges only when the
motion is carried out with requisite majority of both the houses of the
parliament recommending to the President for removal. The Constitution
H
does not permit any action by any other agency. [337-G]
C.R. IYER v. A.M. BHATIACHARJEE
325
3.4. Articles 124(4) and 121 would thus put nail SCJuarely on the A
projections, prosecutions or attempts by any other forum or group of
individuals or associations, statutory or otherwise, either to investigate or
inquire into or discuss the condition of a Judge or the performance of his
duties ond on/off court behaviour except as per the procedure provided
under Articles 124(4) and (5) of the Constitution, the Act and the Rules.
Thereby, equally no other agency or authority like the C.B.I., Ministry of
Defence, the Reserve Bank of India (respondents Nos. 8 to 10) as sought
B
for by the petitioner, could 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. (338-C-D]
3.5. 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 vague and elastic word and embraces within
c
its sweep different facets of conduct as opposed to good conduct. Literally, D
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.
[340-B-C]
4.1. Article 121 of the Constitution prohibits discussion by the members of the Parliament of the conduct of any Judge of the Supreme Court E
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 proved under Articles 124 (4) and (5) and in the manner laid
down under the Act, the Rules and the Rules of Business of the Parliament
umsistent therewith. By necessary implication, no other forum or fora or F
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. [342-E-F]
G
· 4.2. Guarantee of tenure and its protection by the Constitution would
not, however, accord sanctuary for corruption or grave misbehaviour. ):'et
every action or omission by a judicial officer in the performance of his
duties, which is not good necessarily, may not be misbehaviour indictable
by impeachment, but its insidious effect may be pervasive and may produce H
326
SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.
A
deleterious effect on the integrity and impartiality of the Judge. Every
m\sbehaviour 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
B
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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 built heavily on public confidence and respect, the damage by
an obstinate Judge would rip apart the entire judicial structure built in
the Constitution. [341-C-E]
4.3. 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
D process for such conduct but generates widespread feeling of dissatisfaction among the general public, the haitus between bad behaviour and
impeachable misbehaviour needs to be filled in to stem erosion of public
confidence in the efficacy of judicial process. [341-F-G; HJ
4.4. The nation's interest requires that criticism of the judiciary must
E
be measured, strictly rational, sobre 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
p
interest in reasonable measure, public justice cannot gag it or manacle it;
but if the court considers the attack on the Judge or Judges scrurrilous,
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
G the protection, but because the citizens need an impartial and strong
judiciary. [344-H; 345-A-C]
4.5. Scurrilous abuse of a Judge or court, or attack on the personal
character of a Judge, are punishable contempts. Punishment is inflicted,
H
not for the purpose of protecting either the court as a whole or the
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C.R. IYER v. AM. BHATIACHARJEE
327
individual Judges of the court from repetition of the a.ttack, but for A
protecting the public, and especially 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 of 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. [343-B-D]
Brahma Prakash Shanna & Ors. v. State of Uttar Pradesh AIR (1954)
SC 10 and Chokolingo v. AG of Trinidad & Tobaqo, [1981) 1 All ER 244,
relied on.
CJ. Miller, Contempt of Cowt (2nd Edn.) and Borrie & Lowe, Law
of Contempt (2nd Edu.), referred to.
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 162 of
1995.
(Under Article 32 of the Constitution of India.)
B
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C. Ravichandran Iyer-in-Person, Milon Kr. Banerjee, Attorney E
General of India, and S.N. Terdol for the Petitioner.
V.N. Ganpule, and V.B. Joshi for the Respondent No. 2
F.S. Nariman, Dariyar Khambatta, R.N. Karanjawala, P.K. Mullick
and Ms. Manik Karanjawala for the Respondent NO. 3
F
Harish N. Salve AM. Khanwilkar for the Respondent No. 4.
M.N. Krishnamani, for the S.C. Bar Association M.P. Vashi for the
Bar Council of Maharashtra.
The Judgment of the Court was delivered by
G
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 H
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SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
A
Association (BBA) and the Advocates' Association of Western India
(AA WI), 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 allegaB
c
tions 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 oflndia 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
D SCBA informed the Court that its newly elected office bearers required
time to take a decision on the stand to be taken and were 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 AA WI, the 4th respondent. The learned attorney General
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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
proposal 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
G 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
H compulsory removal, respectively from office in the manner prescribed
C.R. IYER v. AM. BHATIACHARJEE [K. RAMASWAMY, J.)
329
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 damages the image -0f 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
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the acceptance by the 1st respondent for publication and sale abroad of a
book authored by him, viz., "Muslim Law and the Constitut~on" 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 G
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". Tt 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., H
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"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 lst respondents himself had discussed
with the Advocate General on February 14, 1995 impressing upon the later
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· lst respondent stating that "he had '
tiot seriously checked the antecedents of the publishers and it was possible
D 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
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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
AA WI, at the desire of Chief Justice to meet him, Shri Chagla and Shri
Y ande 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
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331
Honourable the Chief Justice of India in which he proposed to go A
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
Principle Secretary to the 1st respondent whether the 1st respondent had
tendered his resignation, it was replied in negative which showed that the
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1st respondent had not kept his promise, Consequently, after full discusD
sion, 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
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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. RamasG
wami. 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 H
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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 presses 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
D 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
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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 inde-
·pendence of the judiciary by demitting his office.
Shri Salve argued that independence of the judiciary is paramount.
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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
G 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
H brought by the Chief Justice of India upon the Judge would be constitu-
C.R. IYER v. AM. BHATIACHARJEE [K. RAMASWAMY,J.)
333
tional but it should be left to the Chief Justice of India to impress upon A
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 prese1ved?
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
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at the back of our mind the importance of the independence of the
judiciary. In a democracy governed by rule of law under written ConstituD
tion, judiciary is sentinel on the qui vive to protect the fundamental rights
and to poise even scales of justice between the citizens and the State or
the States inter se. Rule of law and judicial review are basic features of the
Constitution. As its integral constitutional structure, independence of the
judiciary is an essential attribute of rule of law. In S.P. Gupta v. Union of
India, [1981] Supp. SCC 87, in paragraph 27, this Court held that if there E
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
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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 G
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 man-y
dimensions, viz., fearlessness of other power centres, economic or political, H
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and freedom from prejudices acquired and nourished by the class to which
the judges belong.
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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---i:he 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.