CHAPTER – 1

INTRODUCTION

1.1 Introduction

The constitution of India has made elaborate provisions for

ensuring accountability of judiciary. In a democratic setup the judiciary plays an
important role in interpreting law and adjudicating upon various controversies. An
independent judiciary is earnestly required not only for deciding the dispute
among the states and union but also for deciding the matters among the
individuals, between individual or citizens and states on the other side. It is the
main function of the courts to maintain rule of law in the country and to assure
that the government runs according to laws. In country with a written constitution,
courts have an additional function of safeguarding the supremacy of the
constitutional framework. The judiciary stands between the citizen and the state as
a bulwark against executive excesses and misuse or abuse of power.1The past
experience of working of our constitution shows that all is not working well with
judiciary. The fault for this state of affairs lies with all the organs of the state
including judiciary. The judicial system of our country, far from protecting the
Rights and interests of the poor or weaker section, became the weapon of
harassment of the people. The relationship between judiciary and executive has
not been constant pleasant as a result, the institution of judiciary has suffered most
and there has been constant falling in the quality of justice and judicial standards.

This Primer covers the systems used for appointing judges in

constitutional democracies. Various commonly used systems are discussed,
including career judiciaries, appointment by an independent commission and
appointment by the representative or cooperative interaction of legislative and
executive branches. Civil-law jurisdictions tend toward a career judiciary formed
on bureaucratic lines at the lower levels, with an elected or representationally
appointed constitutional court. Common-law jurisdictions rely increasingly on
judicial appointments commissions.

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 Indian Judiciary system is the most powerful judiciary in the world
after USA. Judiciary in India being a democratic country is vested with the highest
power by the people and is considered as strongest pillar of the democracy.
Judiciary in India has been given Supreme powers by the Legislature which has
lead to the non-accountability of the judiciary to anyone. Judiciary in India enjoys
Judicial Accountability but this accountability sometimes results in misuse of the
powers and privileges by the Judges.

Thus, the concept of Judicial Accountability is nowadays is in

question. All over the world various conferences and discussions are going on as
to whether judiciary can be held accountable for actions. Judges are being
criticized usually that they never live in real world. So, there is problem arise to
link the judges with the outside world. The critical function of the judiciary is the
application and interpretation of law and to ensure that “justice should not only be
done, but also seen to be done” The behaviour of judges is closely scrutinized to
ensure continued confidence in the integrity of the courts. Ifa judge appears
partial, public confidence in the judiciary is eroded, the public loses confidence in
the judiciary, and the judicial system cannot function.

Therefore, judges must avoid all activities suggesting that the

judge's decisions are affected byself interest or favoritism. Throughout the ages,
and in all societies, impartiality has been regarded as the essence of the
administration of justice.3 It is essential for a judge to maintain, in court, a
demeanor which gives to the parties an assurance that their case will be heard and
determined on its merits, and not according to some personal predisposition on the
part of the judge.4 The Judges also human beings they do not approach the task of
adjudication in blindfolded. They disembark at the bench already fashioned by
their own experiences and by the perception of the society they come from, and
they might have belief and disbelief, like everyone else.

The difference may happen between judicial fairness and human

being nature of judges. Judges shall not deny their human nature relatively they

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has to acknowledge it. But when they accept their human nature they shall be in
position to recognize how they can reach impartiality which is demand of their
job. The Constitution vests a lot of power and certain amount of immunity in
judges. Fairness and impartiality are the fundamental qualities to be possessed by
a judge. In India, for the vast majority of cases, there are no reports of having been
heard by a partial and unfair judge but there are instances where the contrary
happens. It was held in Ram Jawaya v. State of Punjab5 “The Indian Constitution
has not indeed recognized the doctrine of Separation of Powers in its absolute
rigidity but the functions of the different parts or branches of the Government
have been sufficiently differentiated and consequently it can very well be said that
our Constitution does not contemplate assumption, by one organ or part of the
State, of functions that essentially belong to one another.”

1.2 Definition and interpretation of judicial accountability.

The word „accountable‟ as defined in the Oxford Dictionary means

responsible for your own decisions or actions and expected to explain them when
you are asked. Accountability is the sine qua non of democracy.

The Constitution provides for accountability of the Executive to the

Legislature and the Judiciary and of the Legislature to the Judiciary and the voters.
The Judiciary is also accountable to the public. Within the Judiciary,
accountability to the superior Court is built into the system because of the
requirement: (a) of public hearing of both sides and (b) giving reasons for the
decision which can be corrected by review or in appeal or revision.

In the case of the Supreme Court which is the highest Court

without any scope for further appeal or revision, in addition to the provision for
review, a curative petition lies on limited grounds as declared in Rupa Ashok
Hurra v. Ashok Hurra. Errors of law can be corrected by larger Benches. Judicial
appointments made on the recommendation of a Collegiums of Judges are liable
to be challenged in a Court of law. There is a precedent where the Supreme Court
has quashed the appointment of a High court Judge.

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1.3 230th law commission report

230th Law Commission Report laid down certain guidelines to

improve judicial lethargy and raise more responsibility and responsibility of
judiciary. Some of the recommendations of this report are,

1. There must be full utilization of the court working hours. The judges must
be punctual and lawyers must not beasking for adjournments, unless it is
absolutely necessary.Grant of adjournment must be guided strictly by the
provisions of Order 17 of the Civil Procedure Code.
2. Many cases are filed on similar points and one judgment can decide a large
number of cases. Such cases should be clubbed with the help of
technology and used to dispose other such cases on a priority basis; this
will substantially reduce the arrears. Similarly, old cases, many of which
have become infructuous, can be separated and listed for hearing and their
disposal normally will not take much time. Same is true for many
interlocutory applications filed even after the main cases are disposed of.
Such cases can be traced with the help of technology and disposed of very
quickly.
3. Judges must deliver judgments within a reasonable time and in that matter,
the guidelines given by the apex court in the case of Anil Rai v. State of
Bihar, must be scrupulously observed both in civil and criminal cases.
4. Considering the staggering arrears, vacations in the higher judiciary must
be curtailed by at least 10 to 15 days and the court working hours should
be extended by at least half-an hour.
5. Lawyers must curtail prolix and repetitive arguments and should
supplement it by written notes. The length of the oral argument in any case
should not exceed one hour and thirty minutes, unless the case involves
complicated questions of law or interpretation of Constitution.
6. Judgments must be clear and decisive and free from ambiguity, and should
not generate further litigation.

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 7. Lawyers must not resort to strike under any circumstances and must follow
the decision of the Constitution Bench of the Supreme Court.

All over the world various conferences and discussions are going
on as to whether judiciary can be held accountable for actions. Judiciary is one of
the main constituents of democracy to uphold the rule of law. It is always
necessary for the judiciary to perform its functions in an atmosphere of
accountability and freedom from the executive and legislature. This sort of
accountability is necessary to guard the constitution and right of the individuals.
Accountability is a much used but rarely defined word. At its core, accountability
means that a person or class of persons is answerable for his or her actions and
decisions to some clearly identified individual or body. „To talk about
accountability‟, it is said, „is to define who can call for an account and who owes
a duty of explanation‟. Its bottom line is that someone in an organization can
accept the blame or praise for a decision or action. Judicial Accountability is an
assertive concept that members of the judiciary are responsible to the public on
abuses of judicial powers and moral misconduct of the members against the
genuine expectation of public. The competing perspectives have endemic common
features- justice without fear or favour and justice should uphold the truth. To a
large extent the call for greater judicial accountability can be seen in the context of
a broader debate, in which those who exercise the enormous and increasing power
of the State are called upon to be accountable to the community they serve. With
this goal in mind, the advancements in administrative law in recent years,
including the creation of the office of the Ombudsman and the introduction of
freedom of information legislation, were designed to ensure the accountability of
the executive branch of government.

Also, during the 1980s, accountability became something of a

vogue term in the managerial revolution which swept through the public sector.
Codes of conduct, performance indicators, new reporting requirements and the
like were introduced to supplement the traditional lines of accountability leading
up through the public service to the Minister, Parliament and its committees and

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thence to the electorate. In the words of Abraham Lincoln, “A community where
the state power is deliberately used to modify the normal play of economic forces
so as to obtain a more equal distribution of income for every citizen, a basic
minimum irrespective of the market value of his work and his property is known
as the welfare state.” In the strictest sense, a welfare state is a government that
provides for the welfare, or the well-being, of its citizens completely. Such a
government is involved in citizens‟ lives at every level. It provides for physical,
material, and social needs rather than the people providing for their own. Judiciary
is a very essential part of any legal system and government, to enforce and protect
the right of individual, respect to constitutionalism and its mechanism directly
protected by Judiciary. Indian judiciary is not free from corruption and
discrimination made by lower and higher court. The extortion of the litigants is
regular business of the judicial servants. The whole money extorted from the
litigants is being collected with the Reader of the court. From this booty, lunch is
being served for the Judiciary; their monthly household expenses are met. The
remaining booty is being distributed among the staff of the judiciary. The litigants
should be protected from the exploitation.

Appointment of judges in a democratic polity, whose aim is to

secure social, economic and political justice to all sections of society, is a vital
task and an important aspect of judicial accountability. Judicial accountability is of
pivotal significance in empowering and facilitating the judges to administer justice
impartially and without any fear and fervour. Impartial and transparent system of
judicial appointment is thus the sine qua non for ensuring judicial accountability
and has a direct bearing on the impartiality, integrity and accountability of
judges.1 Judiciary has been referred to as ‘watching tower above all the big
structures of the other limbs of the state from which it keeps a watch like sentinel
on the functions of other limbs. Being the cornerstone of the democracy, the
presence of strong, independent, accountable and efficient judiciary is of utmost
importance in achieving the Preambular objectives and constitutional goals. By
and large the higher judiciary in India has performed exceedingly well during the

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last six decades and has by its pragmatic interpretation of the Constitution of India
especially Part-III shaped the Indian polity. More or less, the higher judiciary has
withstood successfully the test of times and the pressures exerted by other limbs
barring a few exceptions and has not only declared various Constitutional
Amendments and other Acts passed by Parliament and State Legislature as
unconstitutional but has also using new interpretative tools expanded the ambit
and scope of fundamental rights, drawing heavily from Part-IV and international
covenants. However, despite laudable role played by higher judiciary in
preserving, protecting and implementing the fundamental rights of the masses, its
role is not free from criticism and various doubts have been raised about the
integrity of the institution. Appointment of judges of higher judiciary under
executive influence and the transfer of judges by the executive has created ripples
in the past on the one hand compromising judicial accountability and on the other
hand judicial accountability has been used as shield by errant judges when various
allegations of corruptions on judges of High Court and Supreme Court have been
leveled. This has given impetus to the demand for rationalizing, improving,
reforming and systematizing the appointment of judges of High Courts and
Supreme Courts and also for bringing in transparency and accountability.

Summary – Here in the chapter – 1 we have studied the basic

introduction about the judicial accountability and appointment in India.

In the next chapter – 2 we will study about the judicial

accountability in India.

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 CHAPTER – 2

JUDICIAL ACCOUNTABILITY IN INDIA

2.1 Judicial accountability in India

There are three wings of the Indian government – Legislature,

Executive and Judiciary. They perform three vital functions of making rules,
application of rules and adjudication of rules respectively. The main principle
behind such divination of functions is “Separation of Powers” which brings
accountability and keeps the government restrained and thus our rights and
liberties are safeguarded. The main theme behind this is ‘Power corrupts man and
absolute power corrupts absolutely’.

As described by Montesquieu, “Constant experience has shown us

that every man invested with power is apt to abuse it, and to carry his authority
until he is confronted with limits’. In short absolute power without accountability
leads to corruption. In India, corruption has always been in limelight. Mr. Kofi
Annan, the then Secretary General of the United Nations, in his foreword to the
UN Convention against Corruption wrote, “Corruption is an insidious plague that
has a wide range of corrosive effects on society. It undermines democracy and the
rule of law, leads to violations of human rights, distorts markets, erodes the quality
of life and it allows organized crime, terrorism and other threats to human security
to flourish.” However recently what drew our attention is the corruption charges
levied against judges; for examples, Judge Soumitra Sen, being a Calcutta High
Court guilty of misappropriating large sums of money and making false
statements regarding it and P D Dinakaran, Chief Justice of Karnataka High
Court, alleged for land grabbing and corruption. These instances give rise to one
question ‘who is judging the judges?’

The principle of separation or balance of power works with one

more principle i.e., checks and balances. The theory of checks and balances
simply put that no organ should be given unchecked powers. A balance is secured

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by putting the power of one organ checked and restrained by the other two. After
all ‘power alone can be the antidote to power’. So we find in India that how the
executive is individually and collectively responsible to the legislature, although
here the accountability has decreased because of anti-defection law, whereby if
there is any amount of dissent from the legislator, he is threatened with removal
which can cost his constituency being unrepresented. Thus all decisions of party
leaders are now just rubberstamped by parliament. The laws passed by the
legislature are tested by the judiciary, if it violets the constitution the court
declares it null and void. In addition, the legislature is accountable to the people at
large who elect them. Thus, it becomes clear that the judiciary is the guardian of
the constitution and protector of fundamental rights. Recently some of the
examples showed the lack of accountability in the institution. This is important
because in the preamble we give to ourselves JUSTICE- Social, Economic and
Political. In democracy, any authority having some amount of public power must
be responsible to the people. The fact is that in a ‘Democratic republic’, power
with accountability of the individuals is essential to avert disaster for any
democratic system. It is pertinent to note that judicial accountability and judicial
accountability has to be studied together in order to understand the concept in
whole.

2.2 Meaning

Judicial accountability is a corollary fact of the accountability of

the judiciary. Simply put, accountability means taking responsibilities for your
actions and decisions. Generally it means being responsible to any external body;
some insist accountability to principles or to oneself rather than to any authority
with the power of correction or punishment. Since accountability is one of the
aspect of accountability which the constitution provided in Article 235. The
‘control’ of the High Court over the subordinate judiciary clearly indicates the
provision of an effective mechanism to enforce accountability. Thus entrustment
of power over subordinate judiciary to the High Court maintains accountability as
it is neither accountable to the executive or the legislature. The provision of the

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difficult process of impeachment is also directed towards this goal. Except for
extreme cases, the absence of any mechanism for the higher judiciary is because
the framers of the constitution thought that ‘settled norms’ and ‘peer pressure’
would act as adequate checks. However it didn’t happen completely in that
manner because the judiciary is neither democratically accountable to the people
nor to the other two organs. The Hon’ble Supreme Court rightly asserted that “A
single dishonest judge not only dishonours himself and disgraces his office but
jeopardizes the integrity of the entire judicial system.” This brings us to think that
why do we need accountability. A campaign issued by the people’s convention on
Judicial Accountability and Reforms had mentioned, “ The judicial system of the
country far from being an instrument for protecting the rights of the weak and the
oppressed has become an instrument of harassment of the common people of the
country…. The system remains dysfunctional for the weak and the poor… (and
has been) displaying their elitist bias.”

Mona Shukla mentioned three promotions done by judicial accountability:

1. It promotes the rule of law by deterring conduct that might compromise

judicial accountability, integrity and impartiality.
2. It promotes public confidence in judges and judiciary.
3. It promotes institutional responsibility by rendering the judiciary
responsive to the needs of the public it serves as a separate branch of the
government. The process of accountability facilitates transparency.
4. It can be best achieved when one is accountable to law.
5. The existing system of accountability is failed, and therefore growing
corruption is eating away the vitals of this branch of democracy. This lack
of accountability is criticized by Pt. Nehru in a diatribe, “Judges of the
Supreme Court sit on ivory towers far removed from ordinary men and
know nothing about them.”
6. Judges are awarded the image of demi god’s. After all judges are also
humans capable of making mistakes and committing vices. But what went
wrong? The problem in making the judiciary accountable is discussed

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 below which will help us in understanding the issue and later find
solutions to achieve it.

2.3 Need of judicial accountability

In a ‘Democratic republic’ power with accountability of the

individual enjoying it, is essential to maintain any democratic system. The
accountability should be comprehensive to include not only the politicians, but
also the bureaucrats, judges and each and every person bestowed with power.
Power and position in a democracy come with responsibility, and every public
office must remain constantly accountable to the people, who are the repository of
political sovereignty.

Through the agency of courts, the judicial system deals with the
administration of justice. Judges are the human beings who preside over the
courts. They are not merely visible symbols of courts but they are actually
representatives in flesh and blood. The manners in which judges discharge their
duties, determine the image of courts as well as the credibility of judicial system.
In India since immemorial time judges have been held in high esteem. But
recently due to some unpleasant instances people are slowly losing faith in
judiciary and are taking law into their hands. It is highly deplorable. Therefore it is
required to make judiciary accountable, as derogation of values in judiciary is
unaffordable than in any other wing of the government as judiciary has to act as
the guardian of our constitution. Judicial accountability and answerability of the
judges is an old concept. Several countries provide in their constitutions for
ensuring accountability of judiciary. It is for preventing concentration of power in
the hands of a single organ of the state specially, in countries like India where it is
criticized that judicial activism interferes with and invades into the domain of
other organs. But at the same time judicial accountability is a pre- requisite for
every judge whose oath of office requires him to act without fear or favour,
affection of ill- will and to uphold the constitution and laws of the country.

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 Former chief Justice of India, Hon'ble Mr. Justice S.H. Kapadia
remarked: “When we talk of ethics, the judges normally comment upon ethics
among politicians, students and professors and others. But I would say that for a
judge too, ethics, not only constitutional morality but even ethical morality, should
be the base…” The well-known legal luminaries like former Hon’ble Chief Justice
of India S.Venkataramaiah and former Judge of the Hon’ble Supreme Court
D.A.Desai and another former Judge of the Hon’ble Supreme Court Chennappa
Reddy expressed the view that if all the sections of the society are accountable for
their actions, there is no reason why the judges should not be so. Former Hon’ble
Chief Justice, Verma recognized the validity of this plea when he remarked on one
occasion, “These days we (Judges) are telling everyone what they should do but
who is to tell us? We have task of enforcing the rule of law, but does not exempt
and even exonerate us from following it”. For proper implementation of this
concept of judicial accountability, it is expected that the judges should follow a
code of conduct which may be broadly called as ethics for judges.

2.4 Ethical code for judges:

1. Judicial decision to be honestIt is very important that in order to have full

of public confidence in their role in the society, the judicial decision has to
be honest and fair. No judicial decision is honest unless it has been decided
in response to an honest opinion formed in the matrix of the judges
proficient of law and fact. However, the perception of an individual judge
may be incorrect. But an incorrect decision honestly made does not make
that decision dishonest. A decision becomes dishonest if not decided on
judicial conviction of honesty, fairness and neutrality.
2. No man can be a judge in his own causeThe basic ethics principle is that
no man can be judge in his own cause. The principle confines not only to
the cause where the judge is an actual party to a case, but also to a case in
which he has interest. A judge is not expected to adjudicate in a case if he
has got interest therein. A judge do require certain a degree of detachment
and objectivity in judicial dispensation. They being duty bound by the oath

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 of office taken by them in adjudicating the disputes brought before the
court in accordance therewith, judges must remain impartial and should be
known by all people to be impartial. It has been made clear by Hon’ble the
Supreme Court.
3. Administer justice – Judges should be fearless to administer justice. “Fiat
justitia, ruat caelum” means “Let justice be done though the heavens fall”
must be followed as a motto by a judge.
4. Equal opportunity – Parties to the dispute should be treated equally and in
accordance with the principles of law and equity. A judge does not belong
to any particular section or division or group. He is a judge of all people.
In the courts of law there is always equality. A judge should be departed
from personalities who are parties to the case but only with merits. He
should treat the parties to the dispute equally, giving them an equal
opportunity during the trial. The Rt.Hon.Lord Hewart of Bury, Lord Chief
Justice of England, stated that “It is essential to the proper administration
of justice that every party should have an opportunity of being heard, so
that he may put forward his own views and support them by argument and
answer the views put forward by his opponents”. The Hon’ble Supreme
Court stated in the celebrated case “No man’s right should be affected
without an opportunity to ventilate his views”. In classical language of
metaphor, the God of Justice sits on a golden throne, but at his feet sit two
lions-‘law and equity’. A judge will fail to discharge his duty if he
disregards their presence and participation.
5. Maintenance of distance from relativesSince judging is not a profession
but a way of life, the judge must maintain distance between himself and
the parties to the dispute and their lawyers during the conduct of the trial.
One can take into notice that now a days the growth of a new caste in legal
profession who thrive not by intellectual or professional capabilities but by
utilizing their close connection with the judges. The growth of this
suspicious trend can be controlled by avoiding meeting frequently in
private with practicing lawyers .Persons occupying high public offices

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 must take care to see that those who claim to be close to them are not
allowed to exploit that closeness, alleged or real.
6. Too much of activity and participation in social functions be avoidedOften,
it is said that as a result of a very considerable amount of ordinary social
activity, a judge may become identified with people and points of view,
and litigants may think they may not get fair trial. To avoid that feeling, a
judge should avoid too much of social activity. Again, it is recommended
that judges should be selective in attending social functions. Judges in
USA and England generally decline such participation. If they attend any
private function, they ask for the list of invites. The Hon’ble Supreme
Court in Ram Pratap Sharma v Daya Nand1 issued a note of caution to the
effect that a judge should not to accept any invitation and hospitality of
any business or commercial organization or of any political party or of any
club or organization run or sectarian, communal or parochial line.
7. Media Publicity be avoidedAs far as possible a judge should keep away
himself from the media. He should keep himself away from expressing his
views in media on matters either pending before him or likely to appear for
judicial consideration otherwise he may be accused of prejudging the issue
and his neutrality may be questioned thereby. Lord Chief Justice of
England since 1971 to 1980, Mr.Lord Widgery said that “The best judge is
the man who should not court publicity and should work in such a way that
they don’t catch the eyes of the newsmen”. Lord Hailsham said that“ The
best judges are those who do not find their names in the The Daily Mail
and still, who abhor it”.

2.5 Lack of judicial accountability in India

The framers of the Indian constitution would not have imagined

that the Indian judiciary would emerge as the most powerful institution of the
State, within 60 years of the framing of the constitution.

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 The constitution established the Hon’ble High Courts and the
Supreme Court as watchdog institutions, separate and independent of the
executive and the legislature, not only for dispensing the justice, but also for
ensuring that the executive and the legislature did not exceed the authority
conferred upon them by the constitution.

Thus, the judiciary was conferred the powers to interpret the laws
and the constitution, in addition, to strike down executive action which violated
any law or the fundamental rights of citizens.

It has got the authority to examine whether laws framed by

parliament conformed to the constitution and declare them void if they violated it.
Thus, by a creative interpretation of the provision authorizing the parliament to
amend the constitution, the Hon’ble Supreme Court in 1973 also acquired the
power to strike down even constitutional amendments which were found by the
court to be violative of the basic structure of the constitution.

Till present, many laws and some constitutional amendments have

been struck down by the courts during this period. Through all this, the Indian
judiciary have emerged as the most powerful courts in the world, exercising
virtually imperial & unchecked powers. It is criticized that, while executive action
and even legislation could often be struck down by the courts, the directions of the
courts, sometimes issued without even notice to the affected parties, were beyond
question, and had to be obeyed by all executive officers on pain of contempt of
court.

Of course, often these powers were wisely exercised to correct

gross executive inaction. Further it is criticized that while acquiring these powers,
the court, by an even more inventive, namely purposive interpretation of the
provision regarding appointment of judges by the government, took over the
power of appointment of judges. Thus judges of the Hon’ble High Court and
Supreme Court are being appointed by a collegium of senior judges of the
Hon’ble Supreme Court. Thus it is criticized that judiciary has thus become like a

15
self-perpetrating oligarchy. There is no straight jacket formula followed in the
selection of judges and there is no transparency in the system. Specifically, no
regard is given to examining the record or credentials of judges in their
ideological adherence to the constitutional ideals of a secular, socialist democratic
republic or their understanding of or sensitivity towards the common people of the
country who are poor, marginalized and unable to fight for their rights in the
courts. In short it is further criticized that, the courts in India enjoy virtually
absolute and unchecked power unrivalled by any court in the world.

In such a situation, it is absolutely necessary that judges of the

superior judiciary should be made accountable for their performance and their
conduct – whether it be in respect of corruption or for disregard of constitutional
values and the rights of citizens. Unfortunately, neither the constitution, nor any
other law has specifically created any institution or system to examine the
performance of judges or examine complaints against them. The constitution
states that High Court and Supreme Court judges cannot be removed except by
impeachment. The process of impeachment requires signatures of 100 MPs of the
House of People or 50 MPs of the council of states for its initiation.

If a motion containing charges of serious misconduct with the

requisite signatures is submitted, and approved by the speaker of the House of
People or the chairperson of the Council of States, an Inquiry Committee of 3
judges is constituted to hold a trial of the judge. If he is found guilty then motion
is placed before each house of parliament where it has to be passed by a 2/3
majority of each house. Practically, it is highly difficult to remove a judge through
impeachment even if one is somehow able to get documentary evidence of serious
misconduct.

It is further criticized that it happens because MPs are not keen to

take on a sitting judge because it could be possible because of pending cases in
courts. Till present, the only impeachment of a Judge to have gone far was that of
Justice V. Ramaswami during early 90’s. After the motion was presented, a Judges

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Inquiry Committee found him guilty of several charges of misconduct when the
matter went up for voting to parliament. The ruling congress party directed all
their MPs to restrain themselves from voting.

Thus, even after passing the motion unanimously in the Lok Sabha,
it could not get the support of the majority of the total membership of the house
and, therefore, failed. The judge continued in office till he retired, but was not
assigned any judicial work by the then Hon’ble Chief Justice. Secondly, it was
seen a second motion against a judge of the Calcutta High Court signed and
submitted to the Chairman of the Council of States.

Further, it is criticized that allegations and charges against a judge

though supported by documentary evidence, rarely get any coverage in the media
because of the fear of contempt of court. The contempt law in India provides
discretion to a judge of the Hon’ble High Court and Supreme Court to charge the
offender with criminal contempt and send him to jail, on the ground that he/she
has “lowered the authority or scandalized the court”.

What “lowers or scandalizes” the authority of a court is also the

subjective judgment of each Judge. In Arundhati Roy’s case, the Hon’ble Supreme
Court charged her with contempt and sent her to jail because she criticized the
court in her affidavit lowering the dignity of the court. It is also criticized that the
criminal contempt jurisdiction of the court is an example of the enormous and
unchecked power of the superior courts in India.

The campaign for Judicial Accountability is demanding that the

courts’ power to punish for “scandalizing and lowering the authority of the court”
should be taken away by legislation which was resisted by the courts on the
ground that deleting this provision would greatly encourage baseless allegations
and abuse of judges by disgruntled litigants and would thereby erode public
confidence in the courts. Further, this power of punishment for contempt of the
court is provided by the constitution of India. In 1991, the Supreme Court in it’s
judgment, involving Justice Veeraswami who was Chief Justice of the Tamil Nadu

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High Court, was caught with assets, vastly disproportionate to his income, laid
down that no judge of a superior court could be subjected to a criminal
investigation without the written permission of the Chief Justice of India. It is
opined that this view created a feeling that judges who were used to the feeling
that they could get away with any kind of misconduct or even criminal conduct,
without any fear of any criminal action or action for removal.

Further the power of contempt protected them from fear of public

exposure. All this has made an alarming picture of lack of accountability of the
higher judiciary in India. It is opined that one could not practically take any
disciplinary or criminal action against misconduct or crimes committed by judges.
Exposure of them publicly carries the risk of contempt. The lack of accountability
may lead to corruption in the judicial institution.

2.6 Judicial accountability and discipline

The judiciary is required to be independent and outside influence of

political and economic entities such as government agencies or industry
associations. But judicial accountability does not allow that judges and court
officials are free to behave as they like. Indeed, judicial accountability is based on
public trust and, to maintain it, it is necessary that judges must uphold the highest
standards of integrity and must be accountable to them. Where judges or court
personnel are suspected of breaching the public’s trust, fair measures must be in
place to detect, investigate and sanction corrupt practices.

To whom the judiciary is expected to be accountable? Normally,

accountability means the ability to hold an individual or institution responsible for
its actions. The question for the judiciary is accountability to whom and for what?

Broadly speaking, the judiciary must be accountable to the law, in

the sense that the decisions made are in accordance with the law and are not
arbitrary. Like any other branches of government, it must also be accountable to
the general public it serves.

18
2.7 How judicial accountability can be achieved?

Developing a culture of accountability, impartiality and

accountability amongst the judges is an important step towards ensuring the
overall integrity of the judiciary. Developing codes of judicial conduct also
provides an important means of fostering judicial accountability, since they serve
as both a guide to and a measure of judicial conduct. Further reasoned orders and
judgments are the best way of judicial accountability.

Summary – Here in the chapter – 2 we have studied about the

judicial accountability in India.

In the next chapter – 3 we will study about the judicial appointment

in India.

19
 CHAPTER – 3

JUDICIAL APPOINTMENT IN INDIA

3.1 Judicial appointment in India

On 4 February 2020, the Constitution of the Republic of South

Africa, 1996, had completed 23 years of functioning as the country’s founding
charter. Throughout this period, the function of the Judicial Service Commission
(JSC) in appointing judges to key courts in the country has been the subject of
intense scrutiny. Though no concerted action has been taken to reconsider the
existence of a commission-centric appointment process, calls for reform within
the broader JSC structure have been widespread. They have focused on the need
to depoliticise the JSC; ensure proper criteria for selection and non-selection of
candidates; and redress gender inequalities in the composition of the judiciary. In
the first 23 years of the operation of the Constitution of India, however, the
appointment of judges to the Supreme Court and High Courts has remained
publicly uncontroversial.

The provisions relating to the appointment of judges in the

Constitution of India are unambiguous appointment is an executive function,
exercised in consultation with the judiciary; the convention of deferring to the
view of the Chief Justice of India is widely accepted; and persons who are
appointed are considered individuals of integrity, above the hurly-burly of
political machinations. Privately however, murmurs of unprincipled appointments
are often heard. In 1955, Jawaharlal Nehru, the first Prime Minister, is said to
have recommended either Judge BK Mukherjea or Judge MC Chagla as Chief
Justice of India, instead of Judge MP Sastri, who would have been appointed
under the seniority convention. Extraneous factors relating to caste were viewed
as influential in securing High Court appointments; and a few judges who were
appointed were later considered unsuitable, necessitating their transfer from one
High Court to another.

20
 The first two decades after independence themselves were
characterised by a healthy mutual respect between the three branches of
government. The Supreme Court, while vigilant in protecting fundamental rights,
was largely deferential to the wisdom of Parliament; constitutional amendments
were routinely rendered immune to challenge; and the heady sense of a joint
enterprise of responsible nation-building was palpable. This delicate balance was
decidedly upset on 25 April 1973, when three senior judges of the Supreme Court,
Justices Shelat, Hegde and Grover, were superseded, and the executive appointed
a junior judge, Justice AN Ray, as Chief Justice of India. This breached the
convention of seniority.

In terms of the convention, the President of India appointed the

most senior puisne judge on the Supreme Court to be the next Chief Justice of
India. The appointment was made at the time when the Chief Justice’s predecessor
left office, and irrespective of the appointee’s qualifications, ability or remaining
tenure. The supersession was not a sudden development an altercation between
the judiciary and the government had been brewing since the judgment of the
Supreme Court in Golak Nath. In Golak Nath, the Supreme Court reversed 17
years of precedent and held that fundamental rights in the Constitution were
inviolable and could not be altered even by way of amendment to the Constitution
by Parliament. This was followed by two judgments reversing populist
governmental decisions to nationalise banks and abolish privy purses that had
been paid to erstwhile rulers of princely states.

Finally, in Kesavananda Bharati, when faced with an amendment to

the Constitution that circumscribed judicial review, the Court overruled its own
judgment in Golak Nath, but read in an implied limitation to the amending power
Parliament could amend any part of the Constitution, including fundamental
rights, as long as such amendment did not abrogate the basic structure of the
Constitution. The contents of the basic structure were left for the Court to
determine on a case-by-case basis.

21
 It was on the day that the judgment was delivered, on the eve of the
retirement of the outgoing Chief Justice SM Sikri, that the government defied the
convention of seniority, according to which Justice Shelat should have taken over
as Chief Justice, and appointed Justice AN Ray instead. Though its move was
executed stealthily, there was nothing stealthy about its justification. In two days
of parliamentary debate, the government articulated a new rationale for
appointment of judges and Chief Justices broadly paraphrased as their ‘social
philosophy’. These two days of debate presented the first instance of a substantive
discussion on criteria and powers regarding the appointment of judges. They also
set the future terms of all discussion around judicial appointments in India as the
supersession was overwhelmingly viewed as an assault on the independence of the
judiciary. The next two parts of this article take up each of these issues in turn.
Part II is a detailed look at the arguments made for and against the supersession in
Parliament in 1973. From the debates, the government’s partisan intention to
appoint favourable judges is discernible.

However, the effect of the changed and overtly political nature of

appointments to the office of the Chief Justice would have been to create a
publicly accountable judiciary. Unfortunately, such a judiciary never took root in
India. Consequently, part III charts how the future course of judicial appointments
has played out post-supersession. It focuses on how, as a fallout from this episode,
the dominant view of judicial independence as insulation from the government
took firm hold. Taken together, the journey of the Constitution of India in its 24th
year, a juncture at which South Africa is at present, became epochal in
determining the future course of judicial appointments. Part IV concludes by
presenting some thoughts on lessons which might be drawn from India’s
experience of judicial appointments in designing appointments systems elsewhere.

3.2 Committed or omitted13: the supreme court at 23

The debates in the Lok Sabha (the lower house of Parliament in

India) on 3 and 4 May 1973 in the immediate aftermath of the supersession of

22
judges turned on a single question how political did the Members of Parliament
consider the Supreme Court to be? Parliamentarians from the government and
other parties supporting the supersession of judges expressed the view that the
Supreme Court is always political such is the nature of law and thus methods of
appointment ought to be geared towards securing substantive political goals.
Opponents adhered to the widely held view of constitutional adjudication judges
of the Supreme Court, even in decisions with significant political ramifications,
are engaged in interpreting the Constitution. Interpretation is a legal exercise
carried out in accordance with established canons and precedents. Thus, while
appointing judges, it was both impermissible and undesirable to choose judges on
the basis of their political leanings. In essence this was a debate about the nature
of judicial decision-making itself and to what extent legal interpretation was
influenced by ideology.

Leading the charge for the government, Mohan Kumaramangalam

openly declared that seniority was an unsuitable criterion for making an
appointment to the office of the Chief Justice of India. It was not the way in which
similarly high offices in the Army or the Union Public Service Commission were
filled. Further, it reduced the possibility of becoming Chief Justice to a matter of
chance that was determined merely by who had been appointed to the Supreme
Court first. Instead Kumaramangalam proposed four normative objectives for the
appointment of the Chief Justice: first, there must be continuity in leadership in
the Court; seniority, which led to very short tenures, would therefore be
unsuitable. Second, a judge need not be innocent of political views when
appointed; instead, her views on public affairs and philosophy towards the country
and to life generally, were critical. Third, certainty and stability in the law were
critical for the highest court and any appointment had to reflect this. Finally, it was
open to the government to select the person who met the aforementioned criteria;
a person, who, in his words, had the most suitable ‘philosophy and outlook’.

Kumaramangalam’s first three points are unobjectionable. The first

the need for continuity in leadership is a basic principle of managing any public or

23
private institution. For the office of the Chief Justice of India, owing to the
seniority criterion, the average tenure of a Chief Justice today is 13 months.15 At
the time Kumaramangalam was speaking, it was approximately two years. In fact,
this point was noted by the 14th Law Commission, which commended the
stability brought about by Chief Justices enjoying reasonable tenures.16 His
second and third points assessing the outlook of a judge towards law and life and
the need for certainty and stability in the law when considered outside any specific
individuals, also appear innocuous. Appointment of a Chief Justice who can lead
the judicial institution ought to be based on certain substantive criteria. Such
criteria should ordinarily be declared, and a transparent process followed. By
declaring such criteria, Kumaramangalam appears to have complied with the
demand for transparency. His final point that it is open to government to select
persons who meet the aforementioned criteria is arguably correct, as a matter of
law. The Indian Constitution is silent on any distinct criteria or processes to be
followed in the appointment of the Chief Justice of India, as opposed to other
judges of the Supreme Court.

In fact, the only distinction is that in the appointment of the Chief

Justice, the President is not mandated to consult the outgoing Chief Justice of
India, which he must do for appointment of other judges. It is thus open to the
President, who must act on the aid and advice of the government to set out criteria
for the appointment and then the President must follow a fair process in
appointing someone on the basis of such criteria. However, the appropriateness of
the criteria set out for appointment was belied by Kumaramangalam’s belligerence
regarding Justice KS Hegde, one of the superseded judges (who he referred as
‘Mr. Hegde’, thus defying accepted tradition). His speech was primarily a diatribe
against Justice Hegde’s unsuitability to be Chief Justice, particularly joining issue
at his press conference where he alleged that Justice Hedge had been superseded
because of orders that he (Hedge) had passed in a matter involving the election of
the Prime Minister. Though Kumaramangalam strongly denied the relevance of
any such judgment to the supersession, through the course of his speech, the

24
substantive views of judges in particular cases did appear to forcefully influence
him. Tellingly, in explicating his criteria of ‘suitable philosophy’ and ‘outlook’ he
mentioned: But we do want judges who are able to understand what is happening
in our country; the wind of change that is going across our country; who is able to
recognise that Parliament is sovereign, that Parliament’s powers in relation to the
future are sovereign powers.

Those who are able to see that, those who are able to give that
importance to those areas of the Constitution which according to us are decisive
for taking our country forward, such are the judges, we believe, who can
effectively work and help us in the Supreme Court. This is how we look at it.

The candour with which Kumaramangalam expressed the

government’s desire to appoint judges who could ‘effectively work and help’ them
meant that commentators universally saw through his stated criteria. The
supersession was understood primarily as an assault on the independence of
judges whose views in substantive cases did not comport with the those of
government’s. It was the first step to the creation of what jurist Nani Palkhivala
described as a judiciary ‘made to measure’ where judgments would be assessed on
the touchstone of substantive help to the government.18 Justice Ray, according to
this account, was not appointed Chief Justice on the fair application of transparent
criteria; on the contrary, his judgments in favour of the government in the Bank
Nationalisation, Privy Purses and Kesavananda Bharati cases had tilted the
balance in his favour. As the former Attorney-General Daphtary said, ‘the boy
who wrote the best essay won the prize.’

It is worth noting that both Kumaramangalam and his critics

immediately understood that what was at stake was not merely the seniority
convention in the appointment of the Chief Justice of India. It was rather the much
broader question of the proper place and role of the judiciary in a democratic
society. The supersession debate was essentially a stalking horse for the schism on
that more fundamental issue. Atal Bihari Vajpayee of the opposition (a future

25
Prime Minister) framed the debate in terms of judicial independence and
continuance of democracy itself. In his view, it is not as if the Constitution did not
have a philosophy until Kumaramangalam delivered his speech. What was at issue
was the particular philosophy that Kumaramangalam wanted judges to espouse
which was less a philosophy and more a preference towards privileging directive
principles of state policy (a byword for socialism) over fundamental rights
(equated with individual rights over group interests). Only those with similar
preferences would be considered for Chief Justiceship since this would align with
the government’s own reading of the Constitution.

This, in Vajpayee’s view, seriously undermined judicial

independence. Secondly, by removing seniority, no matter how flawed as a basis,
and replacing it with untrammelled governmental discretion would only politicise
the judiciary and appear as if political alignment alone would determine
appointment. The lack of alternate criteria meant that the government was less
interested in an upright, honest judiciary and more in a pliant one.20 The
conflation of Kumaramangalam’s stated objectives with his personal preferences
regarding judicial appointments was considered unsurprising by commentators.
Given the judiciary’s expansive arrogation of powers, first by limiting any
amendment of fundamental rights and then by expounding the basic structure
doctrine which it would develop on a case-by-case basis, scrutiny of appointment
criteria as well as governmental efforts to control the judiciary were both natural.
Unfortunately, Kumaramangalam’s speech belied any attempt to distinguish the
two. The supersession of judges and the dispensing of the norm of seniority were
not independently done to chart out a new basis for appointment; they were done,
as was declared in Parliament, in order to appoint judges suitable to the
government and thereby send out a clear message to future judges. As a result, the
seniority norm became intertwined with fairness and judicial independence, and
any form of subjective selection particularly by the government became a byword
for its antithesis. It is this binary that has shaped the future contours of the debate
around judicial appointments in India.

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3.3 Lessons from the Indian experience: four design principles for appointing
judges to constitutional courts

The Indian experience of judicial appointments is a cautionary tale.

It is a lesson for lawyers, judges and policy-makers in India that designing a
system of appointments is a complex exercise involving a range of factors, both
legal and political. Equally, it cautions other jurisdictions, which might have their
own controversies surrounding judicial appointments, that there is no single ‘right’
way to appoint judges to constitutional courts. Designing a workable
appointments mechanism must be cognisant of the country’s constitutional history,
its political climate, particularly the powers wielded by the judiciary vis-à-vis
other organs of government and the popular sentiment of the citizenry towards
those organs. Unsurprisingly, devising an appointments system that captures these
realities is a difficult exercise. In India, several experiments have been
implemented and several others mooted with varying degrees of success.79 The
purpose of this part is not to prescribe yet another method. Instead, what would be
more useful for constitutional lawyers in India and elsewhere is to distil a few key
design principles of an appointments system.

To this end, we identify four key principles which ought to be

observed: proportionality between the power wielded by the judiciary and the
level of democratic scrutiny of judicial appointments; breaking the closed loop by
which judges are primarily accountable to themselves and their colleagues; greater
faith in the branches of government directly accountable to the electorate in an
appointments mechanism; and an optimal level of transparency in appointments to
prevent a mechanism as shrouded in secrecy as the collegium in India from taking
root. While understandably these principles will have to be suitably adapted to
apply in different jurisdictions, the Indian experience commends these principles
as essential facets of any legitimate and well-functioning appointments
mechanism. These principles are not exhaustive, nor are they a guarantee of a
functioning appointments system; on the contrary, this discussion is meant to

27
serve as a foundation allowing lawyers in various jurisdictions to introspect on
their own mechanisms and the shape possible reforms might take.

3.4 An appointment method must be proportionate to the exercise of judicial

power

The Indian experience is testament to the salient fact that methods

of appointment of judges must correspond to the extent of substantive powers of
judicial review exercised by the judiciary. That is why the same executive-led
form of appointment which had carried on without significant demur from any
stakeholder in the first two decades of independence became entirely unsuitable in
the next five years. A series of decisions beginning with Golak Nath made the
Supreme Court an active player in the constitutional governance of the country.
While it had ruled on significant issues in the first decade and a half, its consistent
anti-majoritarian rulings upturning two decades of precedent gave it a public
profile it had hitherto not had.

Combined with political ambitions of some of its judges,80 the

Court took on a larger-than-life image in the minds of the citizenry and the
government. In these circumstances, combined with a powerful majority
government with a social reform agenda, having an appointments mechanism that
was based on convention and practice was always going to be under challenge. As
evident from the speeches in Parliament discussed in part II, the perceived
activism of the judiciary was a key factor in the first supersession of three judges
in 1973 and subsequent governmental efforts to use the existing powers of
appointment to meddle with judicial composition. In these episodes lies a salient
lesson the nature of the appointments process is intrinsically linked to the extent
of judicial review powers and consequent public profile enjoyed by the judiciary.
The wider the powers of the appointments process and the more public its role, the
greater are going to be the demands by stakeholders to share the powers of
appointment. Not only did that manifest in the supersession with the executive
attempting to wrangle complete control, but also with the introduction of the

28
NJAC, where the executive was attempting to claw back some of its powers of
appointment in the face of an extremely powerful Supreme Court which had
expanded its writ jurisdiction tremendously.81 The underlying problem here is the
loosening of the ‘web of integrated government.’ The web of integrated
government is woven by the carefully established checks and balances scheme by
which various organs of government optimally collaborate and conflict with each
other to ensure governance. Collaboration is necessary to further governmental
objectives; in the same breath, circumscribed conflict is essential to ensure that
each organ stays true to its task and has enough fortification to resist over-reach
by others and little incentive to over-reach itself. In Madison’s words ‘ambition
counteract ambition.’

In India, this web has loosened with the progressive insulation of

the judiciary from its coordinate organs in its composition and the concomitant
arrogation of wide powers of judicial review. While the latter is substantially
beyond the scope of this article, it is widely acknowledged that the Supreme Court
of India is one of the most powerful constitutional courts in the world. It governs
forest management, the administration of cricket,86 the location of liquor vends
and a range of governance functions whose links to questions of constitutional law
are tenuous at best.

The insulation of the judiciary from the influence of the executive,

concurrent with the expansion of judicial power into domains traditionally
regulated by the executive, causes a constitutional dissonance which undermines
the web of integrated government. If, however, traditionally ‘executive’ domains
are to continue to be increasingly judicialised, the maintenance of the web of
integrated government requires the approximation and transposition of more
robust methods of executive accountability to the judicial branch. In other words,
we must take a ‘functional’ rather than a purely ‘institutional’ view: the question is
not simply whether a particular method of appointment is appropriate to the
judicial branch, but whether it is appropriate given what that branch does.

29
 It may well be that increased judicial power over macro-political
matters is inevitable, but neither mode of appointment with which India has had
experience first executive and then judicial primacy is appropriate to that end.
Public administration necessarily involves weighing competing interests and
arriving at equitable solutions. These compromises are considered legitimate due
to the democratic nature of the decision-making body. If the judiciary is to
continue to engage in such exercises at scale, it must be subject to the concomitant
levels and forms of accountability to maintain the web of integrated government.

3.5 No judiciary, however well-intentioned, can be solely trusted

According to Justice Verma, judicial primacy in appointments was

acceptable because the judges would always be accountable to the ‘ever-vigilant
Bar.’88 No other accountability was considered either necessary or desirable. As
Lord Cooke has pointed out, however, it is unrealistic to imagine that the Chief
Justice and senior Judges of the Supreme Court would be held accountable by
junior members of the Bar, who would presumably hope to appear before the
same Judges in Court. Whether the Bar is a representative, diverse, or independent
enough institution to hold the judiciary accountable may be queried. But even
setting aside these questions, this represents a narrow view of accountability in the
context of judicial appointments.

It assumes that legal proficiency is the main factor to be considered

in appointing a judge. While this is of course a necessary condition, it is not
sufficient. A different skill set is required to assess other qualities such as the
Judge’s personal integrity, character, and antecedents. As discussed earlier, the
executive branch possesses a vast law enforcement machinery to make this
determination, and there is no apparent reason that determinations on such matters
ought to be secondary in importance to the collegium’s and subject to its approval.
It, of course, assumes that such determinations will be made fairly and
professionally, which is often not the case.

30
 Indeed, certain trends do not inspire great confidence in the ability
of the current mode of selection to weigh these various factors in the balance. The
Law Commission of India has highlighted the phenomenon of ‘uncle judges,’
whereby advocates practising in a particular high court are related by familial and
social ties to high court judges in the same jurisdiction. This undermines the
perception of judicial impartiality, as these persons have long-standing
relationships with many of those who appear before them. For instance, in 2010,
the Chief Justice of the Punjab and Haryana High Court forwarded to the Union
Law Ministry a list of serving ‘uncle-judges’ on that Court’s bench, revealing that
34 per cent 16 out of 47 of the serving Justices were related to advocates
practising in the same Court. Earlier, in 2003, the Bar Council of India had
reported to the Ministry that just over a quarter of all sitting High Court Judges in
India had relations appearing in that same High Court.

Nepotism is not a social ill unique to the judiciary or, for that
matter, to India. A wide-ranging survey of varied institutions might reveal that
these numbers are in line with broader social trends, but this is not within the
scope of this article. Legitimacy, however, is at least as much about perception as
about reality. The self-appointing nature of the judiciary, operating in a nearly-
closed loop, raises questions about the motives behind such appointments as there
are no external checks on them. In this way, judicial self-regulation is a poison-
pill, which, though it shields the judiciary from accountability, also undermines its
legitimacy in the eyes of those it seeks to serve.

3.6 No political executive, however vile, must be demonised

The assumption behind judicial self-regulation is, of course, due to

mistrust in the political process. This attitude is clear in the Second Judges’ Case,
in which Justice Verma discounts any possibility of political oversight of judicial
appointments: Accountability of the executive to the people in the matter of
appointments of superior judges has been assumed, and it does not have any real
basis There is no occasion to discuss the merits of any individual appointment in

31
the legislature on account of the restriction imposed by Experience has shown that
it also does not form part of the manifesto of any political party While it is true
there are restrictions on discussing the behaviour of judges in Parliament, this has
not precluded debates on judicial independence and the behaviour of the
Government in appointing judges.

The most heated of these debates, over the behaviour of the

government in superseding judges in 1973, is discussed in the first part of this
article and surely counts among the most robust and informed exchanges in the
history of India’s parliamentary democracy. Furthermore, Justice Verma was
mistaken in saying that judicial appointments have never formed part of party
manifestos. As Prof RK Tiwari’s systematic analysis of party manifestos in India
notes: ‘Judicial Reforms have always been an important component in the party
manifestos.’ Specifically, of the parties represented in Parliament, the Socialist
Party in its 1957 manifesto, the Communist Party of India (Marxist) in its 1971
manifesto, and the Bharatiya Janata Party in its 2014 manifesto, all advocated for
changes to the process of judicial appointments.

Ultimately, the political executive must be held politically

accountable for its actions in every sphere of its activity. This is not just for
reasons of political morality, but rather hard practicality: there are simply more
avenues to hold it accountable. Every five years at the most, the executive must
answer to the people for the sum total of its behaviour. As shown above, it is far
from true that the people and opposition parties do not care about judicial politics.
It arguably decided the Indian General Election of 1977 when Indira Gandhi was
voted out of power.96 Demonising the executive, and further, trying to restrict its
powers, in judicial appointment (or, for that matter in substantive matters of
governance) can scarcely provide a sustainably workable solution.

3.7 Optimal transparency is critical

In order not to replicate the flaws of the secretive collegium, some

level of transparency must be built into the process. In this aspect, the ideal

32
method of appointment must steer a middle course between the smoke-filled
rooms of the collegium, and the overtly political showmanship that sometimes
comes with too much publicity. Transparency has both an instrumental and an
inherent value. In instrumental terms, it ensures that there have been no
extraneous factors animating the process of appointments and allows the public to
be informed about the workings of an institution which has a great impact upon
the national life. Institutions of government in a democracy must be maintained on
the public trust, and this trust cannot be blind.

The people must see that their institutions are functioning in a way
which best serves the public weal. The judiciary is no exception to this rule in its
administrative function as it is in its judicial avatar. This is the inherent need for
transparency. An overly public-facing process, however, has its own pitfalls. The
process of confirming judges to the Supreme Court of the United States has
provided numerous instances of this danger. The confirmation hearings of Judges
Bork in 1986 and Kavanaugh in 2018, whatever the substantive merits, saw
intensely heated partisan exchanges which few would argue behoved the dignity
of the high office under consideration. Partisan politics are, of course, unavoidable
given the process of judicial appointments chosen by the United States of
confirmation by the Senate.

The intention is not to criticise this entire process there may well be
merits, given the political fallout of judicial decisions, for the elected legislature to
have a say in judicial selection but to point out that there are certainly pitfalls
associated with ‘too much’ transparency. As the South African experience has also
shown, transparency is no guarantee of an edifying process of appointment; in one
instance, according to the legal commentator Carmel Rickard, a female candidate
normally residing abroad was asked in an open JSC hearing whether, even if she
were not appointed, she might consider moving back to South Africa ‘if she got a
boyfriend there.’

33
 That a difficult balance must be struck was highlighted by the three
distinct approaches taken to the transparency of JSC deliberations by Madlanga J
(for the majority), Jafta J, and Kollapen AJ in the case of Helen Suzman
Foundation v Judicial Service Commission. Given these considerations, the two
guiding principles in designing an optimally transparent judicial appointment
process ought to be (i) maintaining the dignity of the office to which appointment
is sought while (ii) ensuring that the process is not so opaque as to call into
question the substantive reasons for the outcomes of the process. The pitfalls of
opacity are, of course, clear. A process which is totally shielded from public view
is one which is susceptible to sub-optimal practices. Many of the vices of opacity
are reflected in the functioning of the collegium system in India.

The increasing judicialisation of administration and politics

demands, as we have discussed above, some level of democratic legitimacy in
judicial appointments. A process which is obscured from the public is unlikely to
yield such legitimacy. Though a more abstract idea, the dignity of the courts must
also be borne in mind and balanced against this need for transparency. The law
court is an institution elevated above those who come to it seeking justice. It is an
institution where ‘not only must justice be done; it must be seen to be done.’100
Although empirical research to confirm this is difficult to conduct, few would
dispute that the ‘majesty of the law’ as manifested through many symbols
including but not limited to the elevated bench, black robes, and judicial
honorifics is a factor in the popular legitimacy of the judiciary.

This majesty, which reinforces the notion in the minds of litigants

that the judge will be an impartial arbiter of the dispute before her, would be
undermined if the judicial selection process involved a forensic public
examination of a candidate’s past. For example, a prospective candidate may have
been involved in student activism, represented a controversial client, or even held
political office. Her role as a judge would, of course, depend on setting aside
previous biases, and the public has a right to be aware of the salient facts. An
overly transparent process, however, may unduly politicise such an examination

34
and could well be used by vested interests to cast a shadow over the legitimacy of
a disfavoured candidate. In this, as in other similar matters, an optimal degree of
transparency is desirable ensuring that the public retains confidence in the process.

Summary – Here in the chapter – 3 we have studied about the

judicial appointment in India.

In the next chapter – 4 we will study that how constitution ensure

judicial accountability.

35
 CHAPTER – 4

HOW CONSTITUTION ENSURES JUDICIAL

ACCOUNTABILITY

Judicial accountability in the context of the Indian Constitution

refers to the mechanisms and principles that ensure that the judiciary, which is an
essential branch of government, remains transparent, impartial, and accountable to
the people and the law. It is vital for maintaining the rule of law, upholding
fundamental rights, and preventing any abuse of power within the judicial system.

4.1 Key aspects of judicial accountability in India:

1. Independence of the Judiciary: The Indian Constitution guarantees the

independence of the judiciary as a fundamental feature of the Constitution.
Judges are expected to make decisions without fear or favor, and they
should not be subject to external influences, be it from the government or
any other entity.
2. Judicial Review: The judiciary has the power of judicial review, which
allows it to examine the constitutionality of laws and actions of the
government. This is a crucial tool for holding the legislative and executive
branches accountable by ensuring that they do not exceed their
constitutional authority.
3. Transparency and Openness: Judicial proceedings in India are generally
open to the public, ensuring transparency. This openness allows the public
to scrutinize the functioning of the judiciary and hold it accountable.
4. Judicial Standards and Accountability: To maintain the integrity of the
judiciary, the Constitution provides for the removal of judges through a
well-defined process. Judges can be impeached by Parliament or removed
through other mechanisms if they are found to have engaged in
misconduct or have failed to uphold the high standards expected of them.

36
 5. Public Interest Litigation (PIL): Indian courts have recognized the concept
of Public Interest Litigation, which allows citizens to bring cases before
the court for issues of public concern. This mechanism empowers the
public to hold the government accountable through the judiciary.
6. Judicial Ethics and Codes of Conduct: Judges in India are expected to
adhere to a code of conduct that outlines the ethical standards they must
uphold. This includes principles such as impartiality, integrity, and the
avoidance of conflicts of interest.
7. Oversight Bodies: Various bodies and commissions, like the National
Judicial Appointments Commission (NJAC) or the Bar Council of India,
play roles in overseeing judicial appointments, ethical conduct, and
accountability.
8. Media and Civil Society: An active media and civil society play a
significant role in holding the judiciary accountable by reporting on its
actions, decisions, and any potential issues of misconduct.
9. Continuing Legal Education: Judges are expected to engage in continuing
legal education to stay updated on legal developments and maintain their
competence and accountability.
10. These mechanisms collectively aim to ensure that the judiciary in India
remains independent, impartial, and accountable, which is crucial for
upholding the principles of justice, the rule of law, and the protection of
individual rights as enshrined in the Indian Constitution.

4.2 Articles and provisions related to accountability of the judiciary

1. Article 124: This article deals with the appointment and removal of judges
of the Supreme Court. It outlines the procedure for their appointment,
which involves the President of India, the Chief Justice of India, and a
collegium of judges. It also provides for the removal of a judge through the
process of impeachment. Article 124 of the Indian Constitution is all about
how judges for the Supreme Court are chosen and how they can be
removed if they do something really wrong. In simple terms, it says that:

37
 Judges of the Supreme Court are appointed by the President of India, but
they are usually chosen based on the advice of the Chief Justice of India
and a group of senior judges. Once they become judges, they can stay in
that position until they turn 65 years old. After that, they have to retire. If a
Supreme Court judge does something really bad or is not doing their job
properly, they can be removed, but this can only happen through a very
special and strict process called "impeachment." Impeachment means that
both houses of Parliament (Lok Sabha and Rajya Sabha) must agree to
remove the judge. So, Article 124 deals with how judges of the Supreme
Court get their jobs and the rules for taking those jobs away if they do
something seriously wrong.
2. Article 217: This article deals with the appointment and removal of judges
of High Courts. It follows a similar process as outlined in Article 124 for
the Supreme Court. Article 217 of the Indian Constitution is about the
appointment and removal of judges in High Courts. In simple terms, it
means: Judges in High Courts are usually appointed by the President of
India, but they are chosen based on the advice of the Chief Justice of India,
the Governor of the State, and sometimes other judges. High Court judges
can serve until they turn 62 years old. After that, they have to retire. If a
High Court judge does something really wrong or isn't doing their job
properly, they can be removed, but this can only happen through a very
special and strict process called "impeachment." Impeachment means that
both houses of Parliament (Lok Sabha and Rajya Sabha) must agree to
remove the judge. So, Article 217 outlines the rules for appointing and, if
necessary, removing judges in High Courts in India.
3. Article 124A: This article was inserted by the 99th Constitutional
Amendment Act, 2014, to establish the National Judicial Appointments
Commission (NJAC). The NJAC was intended to play a role in the
appointment of judges to the higher judiciary. However, it was struck
down by the Supreme Court in 2015, and the collegium system was
reinstated.

38
4. Article 126: This article pertains to the appointment of an acting Chief
Justice of India when the Chief Justice is unable to perform his or her
duties. Article 126 of the Indian Constitution deals with the appointment of
an acting Chief Justice of India. In simple terms, it says: When the Chief
Justice of India is not able to perform their duties temporarily due to
illness, absence, or any other reason, the President of India can appoint
another senior judge of the Supreme Court to act as the Chief Justice. This
acting Chief Justice has all the powers and responsibilities of the Chief
Justice until the actual Chief Justice is able to resume their duties. So,
Article 126 is a provision that allows for a temporary replacement of the
Chief Justice of India when the need arises.
5. Article 217(1): This article provides for the appointment of an acting
Chief Justice of a High Court when the Chief Justice is unable to perform
his or her duties. Article 217(1) of the Indian Constitution is about the
appointment of acting Chief Justices of High Courts. In simple language, it
means: When the Chief Justice of a High Court is unable to perform their
duties temporarily due to illness, absence, or any other reason, the
President of India can appoint one of the other judges of that High Court to
act as the Chief Justice in their place. The judge appointed as the acting
Chief Justice will have the same powers and responsibilities as the actual
Chief Justice until the Chief Justice can return to their duties. In essence,
this article allows for a temporary replacement of the Chief Justice of a
High Court when needed.
6. Article 218: This article outlines the procedure for the transfer of a judge
from one High Court to another. Article 218 of the Indian Constitution
deals with the transfer of judges from one High Court to another. In simple
terms, it means: If a judge from one High Court is needed to temporarily
work in another High Court, the President of India can make this transfer.
This might happen due to a shortage of judges or the need for a judge with
special expertise in a particular case. The judge who is transferred will be
able to carry out their judicial duties in the High Court to which they are

39
 transferred. So, Article 218 allows for the temporary movement of judges
between High Courts when there's a specific need for their services in
another region.
7. Article 219: This article deals with the restrictions on post-retirement
employment for judges of the High Courts and Supreme Court. Article 219
of the Indian Constitution is about the rules for judges of High Courts after
they retire. In simple language, it means: After a judge of a High Court
retires, they cannot take on any other job, except for being a judge or an
election commissioner. They can't represent anyone in a legal matter,
work for the government, or accept any other employment. This rule helps
maintain the independence and integrity of judges even after they retire.
So, Article 219 ensures that retired High Court judges cannot take up
certain jobs or activities that might compromise their impartiality and the
integrity of the judicial system.
8. Article 220: This article pertains to the practice of a retired judge of a
High Court to act as a judge of the Supreme Court. Article 220 of the
Indian Constitution deals with the practice of retired judges from High
Courts acting as judges in the same High Court or in another High Court.
In simple terms, it means: 1. After a judge from a High Court retires, they
can be asked to continue working as a judge in the same High Court or in
another High Court if they are willing and the President of India approves.
2. They can only do this for a temporary period, and it's usually done when
there's a need for extra judges or to help with pending cases. So, Article
220 allows retired judges to return to the role of a judge for a temporary
period if there's a shortage of judges in a High Court, and if they agree to
do so.
9. Article 222: This article deals with the transfer of a judge from one High
Court to another with the consent of the President. Article 222 of the
Indian Constitution deals with the transfer of a judge from one High Court
to another. In simple terms, it means: The President of India, after
consulting with the Chief Justice of India, can transfer a judge from one

40
 High Court to another High Court. This can happen if there's a need for
judges to be moved between High Courts for reasons such as the better
administration of justice. The judge who is transferred will continue to
serve as a judge in the High Court to which they are transferred. So,
Article 222 allows for the transfer of judges between High Courts to help
ensure a more efficient and effective judicial system.
10. Article 224: This article provides for the appointment of additional and
acting judges in High Courts. Article 224 of the Indian Constitution is
about the appointment of additional and acting judges in High Courts. In
simple terms, it means: If a High Court believes that it needs more judges
temporarily to handle a backlog of cases or for any other reason, it can
appoint additional judges. These judges will work in the High Court until
the workload decreases. A High Court can also appoint acting judges when
one of its permanent judges is not available for a short period. These acting
judges can step in to handle cases during the judge's absence. So, Article
224 allows High Courts to bring in extra judges when needed, either
temporarily or to fill in for absent judges, to ensure the smooth functioning
of the court system.
11. Article 225: This article addresses the powers of the High Courts in
making rules and regulations regarding their procedure and the practice of
law. Article 225 of the Indian Constitution deals with the power of High
Courts to make rules and regulations regarding their procedures and
practices. In simple terms, it means: Each High Court in India has the
authority to create its own rules and procedures to manage how cases are
heard and processed within its jurisdiction. These rules can cover things
like how cases are filed, how they are heard, and the general functioning of
the court. The High Court can also make rules regarding the qualifications
and conditions of service of its staff, like clerks, lawyers, and others who
work in the court. So, Article 225 gives High Courts the power to establish
and enforce their own rules and regulations for the effective and orderly
operation of the court within their area of authority.

41
 While these articles primarily focus on the appointment and removal of
judges and the functioning of the judiciary, they are central to ensuring
accountability within the judicial system. They establish a balance between
the independence of the judiciary and the need for accountability to uphold
the rule of law and protect the rights of citizens.

Summary – Here in the chapter – 4 we have studied

that how constitution ensure judicial accountability.

In the next chapter – 5 we will study various judicial trends that are
based on the judicial accountability and appointment.

42
 CHAPTER – 5
JUDICIAL TRENDS

Case – 1: Naga People'S Movement, Of Human Rights vs Union Of India on

27 November, 1997: AIR 1998 SUPREME COURT 431, 1998 (2) SCC 109,
1998 AIR SCW 8, (1997) 9 JT 431 (SC), 1997 (7) SCALE 210, (1998) 1 KER
LT 11, 1998 SCC(CRI) 514, (1997) 10 SUPREME 169, (1997) 7 SCALE 210,
(1998) 1 CAL HN 34, (1998) SC CR R 246

Civil Appeals Nos. 2173--76 of 1991 have been filed by the Union
of India, the State of Assam and other respondents in the writ petition against the
said judgment of the Gauhati High Court dated March 20, 1991 in Civil Rules
Nos. 2314, 2238 & 2415 of 1990. Civil Appeal No. 2551 of 1991 has been filed
by the petitioner in Civil Rule No. 11 of 1991 against the said judgment. The
appellant in the Civil Appeal No. 2551 of 1991 has died and the said appeal has
abated.

In the Writ petitions filed under Article 32 of the Constitution the

validity of the Central Act and the State Act as well as the notifications issued the
said enactments declaring disturbed areas in the States of Assam, Manipur and
Tripura have been challenged. In these writ petitions allegations have been made
regarding infringement of human rights by personnel of armed forces in exercise
of the powers conferred by the Central Act. The notifications regarding
declaration of disturbed areas have ceased to operate. The allegations involving
infringement of rights by personnel of armed forces have been inquired into and
action has been taken against the persons found to be responsible for such
infringements. The only question that survives for consideration in these Writ
petitions is about the validity of the provisions of the Central Act and State Act.

We have heard Shri Shanti Bhushan, Ms. Indira Jaisingh, Shri

Kapil Sabil on behalf of the petitioners in the writ petitions and in the civil appeals
we have heard Shri P.K. Goswami on behalf of the petitioners in the writ petitions

43
filed in the High Court. The learned Attorney General has addressed the Court on
behalf of the Union of India. The National Human Rights Commission has been
permitted to intervene and Shri Rajiv Dhavan has addressed the Court on its
behalf.

As noticed earlier, the provisions contained in the State Act are also
found in the Central Act which contains certain additional provisions. The
Submissions on the Validity of the provisions of the Central Act would cover the
challenge to the validity of the State Act. We would, therefore, first deal with the
questions relating to the validity of the Central Act. But before we do so we will
briefly take note of the earlier legislation in the field.

The Police Act of 1861, in sub-section (1) of 15, empowers the

state Government to issue a proclamation declaring that any area subject to its
authority has been fond in a disturbed or in a dangerous state and thereupon in
exercise of the power conferred under sub-section (2) the Inspector General of
Police or other officer authorised by the State Government in that behalf can
employ and police force in addition to the ordinary fixed complement, to be
quartered in the area specified in such proclamation. Sub- section(6) of Section 15
prescribes that every such proclamation issued under sub-section (1) shall indicate
the period for which it is to remain in force, but it may be withdrawn at any time
or continued from time to time for a further period or periods as the State
Government may in each case think fit to direct. The police Act makes no
provision for deployment of armed forces.

To deal with the situation arising in certain provinces on account of

the partition of the country in 1947 the Governor General issued four Ordinances,
namely, (1) The Bengal Disturbed Areas (Special Powers of Armed forces)
Ordinance, 1947 ( 11 of 1947); (2) The Assam Disturbed Areas (Special Powers of
Armed Forces) Ordinance, 1947 (14 of 1947); (3) The East Punjab and Delhi
Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947 (22 of 1947).

44
these Ordinances were replaced by the Armed Forces (Special Powers) Act,
1948 (Act No. 3 of 1948).

Thereafter the Central Act was enacted by Parliament. it was

known as the Armed Forces [Assam and Manipur ] Special powers Act, 1958 and
it extended to the whole of the State of Assam and the Union Territory of Manipur.
As a result of the amendments made therein it is now described as the Armed
Forces [Special Powers] Act, 1958 and it extends to the whole of the Stat of
Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and
Tripura. Under Section 3 of the Act as originally enacted the power to declare an
area to be a disturbed area was conferred on the Governor of Assam and the Chief
Commissioner of Manipur. Section 3 was amended by Act 7 of 1972 and power to
declare an area to be a 'disturbed area' has also been conferred on the Central
Government.

If, in relation to any State or Union Territory to which this Act

extends, the Governor of that Stat or the Administrator of that Union Territory or
the Central Government, in either case, is of the opinion that the whole or any part
of such State or Union Territory, as the case maybe, is in such a disturbed or
dangerous condition that the use of armed forces in aid of the civil power is
necessary, the Governor of that State or the Administrator of that Union Territory
or the Central Government, as the case may be, may, by notification in the official
Gazette, declare the whole or such part of such state or Union Territory to be a
disturbed area.

Section 131. Power to certain armed force officers to disperse

assembly.- When the public security is manifestly endangered by any such
assembly and no Executive Magistrate can be communicated with, any
commissioned or gazetted officer of the armed forces may disperse such assembly
with the help of the armed forces under his command, and may arrest and confine
any persons forming part of it, in order to disperse such assembly or that they may
be punished according to law, but if, while he is acting under this section, it

45
becomes practicable for him to communicate with an Executive Magistrate, he
shall do so, and henceforward obey the instructions of the Magistrate, as to
whether he shall or shall not continue such acting."

Provisions on the same lines were contained in Sections 129 to 131

of the Criminal procedure Code, 1898.

In this context, it may be mentioned that under Section 23(1) of the

Reserve Forces Act, 1980 in England power has been conferred on the Secretary
of the State, at any time when occasion appears to require, to call out the whole or
so many as he thinks necessary, of the members of the Army or Air Force Reserve
to aid the civil power in the preservation of the public peace. In sub-section (2) of
Section 23 of the said Act it is provided that for the same purpose, on the
requisition in writing of a justice of the peace, any officer commanding her
Majesty's forces or the regular air force in any town or district may call out the
men of the Army Reserve or Air Force Reserve, as the case may be, who are there
resident, or so many of them as he thinks necessary. Under the Queen's
Regulations for the Army 1975, para III 0002, a service commander who received
a request from the civil power for assistance in order to maintain peace and public
order is under a duty at once to inform his immediately superior service authority
and the Ministry of Defence, but if, in very exceptional circumstances, a grave and
sudden emergency arises which, in the opinion of the commander present,
demands his immediate intervention to protect life and property, he must act on
his own responsibility, and report the matter as soon as possible to the chief officer
of police and to the service authorities. [See: Halsbury's Laws of England, Fourth
Edition, Vol. 41, pp. 27-28, para 25].

The learned counsel for the petitioners in the writ petitions filed in
this Court as well as in the writ petitions filed in the High Court and the learned
counsel for the intervener have assailed the validity of the Central Act on the
ground that it is beyond the legislative competence of parliament. They have also
challenged the validity of the various provisions of the Act on the ground that the

46
same are violative of the provisions of Articles 14, 19 and 21 of the constitution.
We would first examine the submissions of the learned counsel regarding
legislative competence of parliament to enact the Central Act. For that purpose it
is necessary to take not of the relevant entries in the Union List (List I) and the
State List (List II) in the Seventh Schedule to the Constitution.

A perusal of Entry 1 of the State List Would show that while power
to legislate in order to maintain public order has been assigned to the State
Legislature, the field encompassing the use of armed forces in aid of the civil
power has been carved out from the said Entry and legislative power in respect of
that field has been expressly excluded. This means that the State Legislature does
not have any legislative power with respect to the use of the armed forces of the
Union in aid of the Civil power for the purpose of maintaining public order in the
State and the Competence to make a law in that regard vests exclusively in
parliament. Prior to the Forty-Second Amendment to the Constitution such power
could be inferred from Entry 2 of the Union List relating to naval, military and air
forces and any other armed forces of the Union as well as under Article 248 read
with Entry 97 of the Union List. After the Forty-Second Amendment the
legislative power of parliament in respect of deployment of armed forces of the
Union or another force subject to the control of the Union or any contingent or
unit thereof in any State in aid of the civil powers flows from Entry 2-A of the
Union List.

The expression "in aid of the civil power" in entry 1 of the State
List and in Entry 2A of the Union List implies that deployment of the armed
forces of the Union shall be for the purpose of enabling the civil power in the
State to deal with the situation affecting maintenance of public order which has
necessitated the deployment of the armed forces in the State. The word "aid"
postulates the continued existence of the authority to be aided. This would mean
that even after deployment of the armed forces the civil power will continue to
function. The power to make a law providing for deployment of the armed forces
of the Union in aid of the civil power in the State does not comprehend the power

47
to enact a law which would enable the armed forces of the Union to supplant or
act as a substitute for the civil power in the State. We are, however, unable to
agree with the submission of the learned counsel for the petitioners that during the
course of such deployment the supervision and control over the use of armed
forces has to be with the civil authorities of the State concerned or that the State
concerned will have the exclusive power to determine the purpose, the time period
and the areas within which the armed forces should be requested to act in aid of
civil power. In our opinion, what is contemplated by Entry 2-A of the Union List
and Entry I of the State List is that in the event of deployment of the armed forces
of the Union in aid of the civil power in a State, the said forces shall operate in the
State concerned in cooperation with the civil administration so that the situation
which has necessitated the deployment of the armed forces is effectively dealt
with and normalcy is restored.

Does the Central Act enable the armed forces to supplant or act as
substitute for civil power after a declaration has been made under Section 3 of the
Central Act ? In view of the provisions contained in Sections 4 and 5 of the
Central Act the question must be answered in the negative. The power conferred
under clause (a) of Section 4 can be exercised only when any person is found
acting in contravention of any law or order for the time being in force in the
disturbed area prohibiting the assembly of five or more persons or the carrying of
weapons or of things capable of being used as weapons or of fire arms,
ammunition or explosive substances.

In other words, the said power conditional upon the existence of a

prohibitory order issued under a law, e.g. Cr. P.C. or the Arms Act, 1959. Such
prohibitory orders can be issued only by the civil authorities of the State. In the
absence of such a prohibitory order the power conferred under clause (a)
of Section 4 cannot be exercised. Similarly, under Section 5 of the Central Act
there is a requirement that any person who is arrested and taken into custody in
exercise of the power conferred by clause (c)) of Section 4 of the Act shall be
made over to the officer in charge of the nearest police station with the least

48
possible delay, together with a report of the circumstances occasioning the arrest.
Maintenance of public Order involves cognizance of offences, search, seizure and
arrest followed by registration of reports o offences [FIRs], investigation,
prosecution, trial and , in the event of conviction, execution of sentences. The
powers conferred under the Central Act only provide for cognizance of offences,
search, seizure and arrest and destruction of arms dumps and shelters and
structures used as training camps or as hide-outs for armed gangs.

The other functions have to be attended by the State Criminal

Justice machinery, viz., the police, the magistrates, the prosecuting agency, the
courts, the jails, etc. This would show that the powers that have been conferred
under Section 4 of the Central Act do not enable the armed forces of the Union t
supplant or ac as substitute for the civil power of the State and the Central Act
only enables the armed forces to assist the civil power of the State in dealing with
the disturbed conditions affecting the maintenance of public order in the disturbed
area.

Under Section 3, as amended by Act 7 of 1972, the Central

Government has been empowered to declare an area to be a disturbed area. There
is no requirement that it shall consult the State Government before making the
declaration. As a consequence of such a declaration the power under section 4 can
be exercised by the armed forces and such a declaration can only be revoked by
the Central Government. The conferment of the said power on the Central
Government regarding declaration of areas to be disturbed areas does not,
however, result in taking over of the state administration by the Army or by other
armed forces of the Union because after such declaration by the Central
Government the powers under Section 4 of the Central Act can be exercised by the
personnel of the armed forces only with the cooperation of the authorities of the
State Government concerned. It is, therefore, desirable that the State Government
should be consulted and its co-operation sought while making a declaration. It
would be useful to refer to the report of the Sarkaria Commission on Central-
States Relation which has also dealt with this aspect.

49
 The learned counsel for the petitioners have urged that the period
of one year is unduly long and have invited our attention to the provisions
contained in Articles 352 and 356 which postulate periodic review of a
proclamation issued under the said provisions after every six months. It has been
urged that there is no reason why a longer period should be required for review of
a declaration under Section 3 of the Central Act. Keeping in view the fact that the
declaration about an area being declared as a 'disturbed area' can be issued only in
a grave situation of law and order as well as the extent of the powers that can be
exercised under Section 4 of the Central Act in a disturbed area, we are of the
view that a periodic review of the declaration made under Section 3 of the Central
Act should be made by the Government/Administration that has issued such
declaration before the expiry of a period of six months.

There is one other aspect which cannot be ignored. The primary

task of the armed forces of the Union is to defend the country in the event of war
or when it is face with external aggression. Their training and orientation defeat
the hostile forces. A situation of internal disturbance involving the local
population requires a different approach. Involvement of armed forces is handling
such a situation brings them in confrontation with their countrymen. Prolonged or
too frequent deployment of armed forces for handling such situations is likely to
generate a feeling of alienation among the people against the armed forces who by
their sacrifices in the defence of their country have earned a place in the hearts of
the people. It also has an adverse effect on the morale and discipline of the
personnel of the armed forces. It is, therefore, necessary that the authority
exercising the power under Section 3 to make a declaration so exercises the said
power that the extent of the disturbed area is confined to the area in which the
situation is such that it cannot be handled without seeking the aid of the armed
forces and by making a periodic assessment of the situation after the deployment
of the armed forces the said authority should decide whether the declaration
should be continued and, in case the declaration is required to be continues,
whether the extent of the disturbed area should be reduced.

50
 Shri Sibal has urged that the conferment of power to issue a
declaration under Section 3 of the Central Act on the Governor of the State is
invalid since it amounts to delegation of power of the Central Government and
that for the purpose of issuing a declaration the application of mind must be that
of the Central Government with respect to the circumstances in which such
deployment of armed forces is to take place and that conferment of the power to
make a declaration on the Governor of the State cannot be held to be valid. There
is a basic infirmity in this contention. There is a distinction between delegation of
power by a statutory authority and statutory conferment of power on a particular
authority/authorities by the Legislature. Under Section 3 of the Central Act there
is no delegation of power of the Central Government to the Governor of the State.
What has been done is that the power to issue a declaration has been conferred by
Parliament on three authorities, namely, (1) the Governor of the State;(2) the
Administrator of the Union Territory, and (3) the Central Government.

In view of the information available at the local level the Governor

of the State or the Administrator of the Union Territory is in a position to assess
the situation and form an opinion about the need for invoking the provisions of the
Central Act for use of the armed forces of the Union in aid of the Civil power for
the purpose of dealing with the situation that has arisen in the concerned State or
the Union Territory. Moreover the issuance of a declaration, by itself, would not
oblige the Central Government to deploy the armed forces of the Union. After
such a declaration has been issued by the Governor/Administrator the Central
Government would have to take a decision regarding deployment of the armed
forces of the Union in the area that has been declared as a 'disturbed area'. The
conferment of power on the Governor of the State to make the declaration
under Section 3 cannot, therefore, be regarded as delegation of power of the
Central Government.

Shri Dhavan has taken a difference stand. He has assailed the

conferment of power to issue a declaration under Section 3 on the Central
Government on the ground that the words 'in aid of the civil power" postulates

51
that the state alone should consider whether the public order requires armed forces
of the Union to be called in aide of civil power and that the conferment such a
power on the Central Government is destructive of the federal scheme which is a
part of the basis structure of the Constitution. We are unable to accept this
contention. Whether a situation has arisen which requires the making of a
declaration under Section 3 so as to enable the armed forces of the Union to be
deployed in aid of the Civil power is a matter which has to be considered by the
Governor of the State/Administrator of the Union Territory as well as Central
Government because the cooperation of both is required for handling the situation.
By virtue of Article 355 the Union owes a duty to protect the States against
internal disturbance and since the deployment of armed forces in aid of civil
power in a State is to be made by the Central Government in discharge of the said
constitutional obligation, the conferment of the power to issue a declaration on the
Central Government cannot be held to be violative of the federal scheme as
envisaged by the Constitution.

It cannot, therefore, be said that there was no material before the

Central Government on the basis of which it could form the requisite opinion of
the purpose of making a declaration under Section 3 of the Central Act covering
the entire State of Assam. The impugned direction given by the High Court that
the notifications dated November 27,1990 issued under Section 3 of the Central
Act shall not apply to the districts aforementioned cannot, therefore, be sustained
and has to be set aside.

In support of the notification dated December 7, 1990 issued under

Section 3 of the State Act the State Government had relied upon the intelligence
reports that were received by the State Government with regard to prevailing
conditions. The High Court has, however, struck down the said notification in
relation to the districts aforementioned for the reason that the notification issued
by the Central Government under the Central Act was being struck down in
respect of those districts and the notification of the State Government could not
also be sustained in respect of those districts. In the circumstances we are unable

52
to uphold the direction of the High Court [direction No. (i)] that notification dated
November 27, 1990 issued under the Central Act and notification dated December
7, 1990 issued under the State Act shall apply not in the districts of Golaghat,
Morigaon, Dhubri, Kakrojhar, Bongaigaon, Goalpara, Kamrup (except the city of
Gauhati), Karbi Anglong, North Cachar Hills, Cachar, Karimganj and Hailakandi
and the said direction is , therefore, set aside.

The High Court has also directed [direction No. (ii)] that the
Central Government, under the Central Act, and the State Government, under the
State Act should review every calendar month whether the two notifications are
necessary to be continued. In the context of Section 3 of the Central Act we have
considered this question and have expressed the view that such periodic review
should take place before the expire of six months. The said requirement for a
periodic review would also apply to a notification issued under Section 3 of the
State Act. In the circumstances, we are unable to uphold this direction given by
the High Court.

Case -2: Yashbeer Singh vs Gnct Of Delhi And Anr on 13 February, 2012:
Decided by Delhi High Court

By these petitions preferred under Articles 226 & 227 of the

Constitution of India, the petitioners assail the advertisement dated 21.12.2010
issued by respondent No. 2/GNCTD for the purpose of inviting applications from
candidates for appointment as whole-time members of the State Consumer
Disputes Redressal Commission in Delhi (State Commission), established under
the Consumer Protection Act, 1986 (The Act). The advertisement relates to two
posts, out of which one post has been reserved for "Member (Female - non-
judicial)" and the second post has been reserved for "Member (judicial)", for the
purpose of creation of a second bench of the State Commission.

Learned counsel submits that at present, apart from the President,

who is a retired High Court Judge, the existing two members are females. He,
therefore, submits that the respondent could not have reserved any post for a

53
Member (Female - non-judicial), since the requirement of Section 16(1)(b), which
provides that one of the members of the State Commission should be a woman,
already stands satisfied. I may note that the respondent No. 1/UOI supports this
stand of the petitioner in relation to the reservation of one post for Member
(Female - non-judicial).

Learned counsel for the petitioners places reliance on various

decisions on the interpretation of statutes to submit that normal function of a
proviso is to except something out of the enactment, or to qualify something
enacted therein which, but for the proviso, would be within the purview of the
enactment. The proper function of a proviso is to except and to deal with a case
which would otherwise fall within the general language of the main enactment and
its effect is confined to that case. It is a qualification of the preceding enactment
which is expressed in terms too general, to be quite accurate. As a general rule,
proviso is added to an enactment to qualify or create an exception to what is in the
enactment and ordinarily, a proviso is not interpreted as stating a general rule.
(See Nagar Palika Nigam Vs. Krishi Upaj Mandi Samiti & Others, AIR 2009 SC
187)

Learned counsel for the petitioners submits that the President of the
State Commission is also a "member". Thus considered, the appointment of
another judicial member would breach the restriction contained in proviso
to Section 16(1)(b), as the number of judicial members, including the President,
would exceed 50% of the total strength of the State Commission, as, apart from
the President and Mrs. Kanwal Inder, one more member would be a person having
a judicial background - thus raising their number to three, whereas, the number of
members not having a judicial background shall be only two, even if another
member (Non-judicial) is appointed.

In support of this submission, learned counsel for the petitioners

place reliance on the definition of the expression „member‟ contained in Section
2(jj) of the Act, and also on the decision of the Kerala High Court in K.

54
Kanakachandran Vs. State of Kerala and Others, AIR 2007 Kerala 155. He also
places reliance on the decision of the Supreme Court in Central Bank of India Vs.
Ravindra and Others, AIR 2001 SC 3095. In this case, the Supreme Court has
observed that "ordinarily, a word of expression used at several places in one
enactment should be assigned the same meaning so as to avoid "a head-on clash"
between two meanings assigned to the same word or expression occurring at two
places in the same enactment. It should not be lightly assumed that "Parliament
had given with one hand what it took away with the other" [See- Principles of
statutory Interpretation, Justice G.P. Singh, 7th Edition 1999, p.113]. That
construction is to be rejected which will introduce uncertainty, friction or
confusion into the working of the system (ibid, p. 119). While embarking upon
interpretation of words and expressions used in a Statute it is possible to find a
situation when the same word or expression may have somewhat different
meaning at different places depending on the subject or context. This is however
an exception which can be resorted to only in the event of repugnancy in the
subject or context being spelled out. It has been the consistent view of Supreme
Court that when the Legislature used same word or expression in different parts of
the same section or statute, there is a presumption that the word is used in the
same sense throughout, (ibid, p.263). More correct statement of the rule is, as held
by House of Lords in Farrell V. Alexander, (1976) 2 All ER 721, 736, "where the
draftsman uses the same word or phrase in similar contexts, he must be presumed
to intend it in each place to bear the same meaning"."

Having heard learned counsel for the parties, considered the rival
submission in the light of the judgments cited before me and after giving my due
consideration to the provisions of the Act, I am of the considered view that so far
as the advertisement of one post for Member (Female - non-judicial) is concerned,
the same appears to be contrary to the provisions of Section 16(1)(b) of the Act.
However, the advertisement of one post for Member (judicial) appears to be in
order, and in consonance with the provisions of the Act.

55
 A perusal of Section 16 of the Act clearly shows that there is no
reservation of posts, either in favour of a woman or a person having judicial
background, for being appointed as a Member of the State Commission. All
that Section 16(1)(b) provides is that, of the members appointed to a State
Commission, at least one shall be a woman. It does not mean that a slot or a post
of a member of the State Commission can be labled or classified as that reserved
for a Member (Female). What Section 16(1)(b) provides is that while making
appointment of members to the State Commission, if none of the existing
members is a woman, the appointing authority shall give priority to a candidate
who is a female, who otherwise fulfills the criteria set out in Section 16(1)(b) (i),
(ii) & (iii) of the Act.

For example, if only one post of a member of the State

Commission is required to be filled, and none of the existing members is a
woman, then the respondent No. 2 would be justified in advertising the post for a
member, while restricting the applicants to female candidates. It would serve no
purpose to call for applications even from male candidates, as the necessity is to
appoint a woman member, and the appointment of a male member would, in that
eventuality, be in breach of Section 16(1)(b) of the Act.

The Act also does not restrict the number of women appointees as
members of the State Commission. There could be more than one women
members of the State Commission, who may be appointed on their own merit, but
the statutory requirement is that at least one of the members of the State
Commission should be a woman. That woman member may, or may not, be a
person having a judicial background, and may belong to any of the fields, i.e.
economics, law, commerce, accountancy, industry, public affairs or administration
with adequate knowledge and experience of at least 10 years.

The requirement of having at least one woman member having

been fulfilled with the appointment of Mrs. Salma Noor, who still continues to be
Member (Mrs. Kanwal Inder having already retired), the advertisement of one of

56
the posts of member, with reservation for Female - non-judicial candidate, appears
to be in the teeth of Section 16(1)(b) of the Act. As aforesaid, the respondent No. 2
cannot shut out applications by other aspirants, who may otherwise satisfy the
requirement of Section 16(1)(b) of the Act, and who may, or may not, be women.
The respondent No. 2 is not precluded from appointing a woman from amongst
the applicants, but the said appointment should be based entirely on the
applicants‟ merit and should not be swayed by the consideration that she is a
woman. The understanding of respondent No. 2 that the earlier appointee, namely
Mrs. Salma Noor was not appointed on account of her being a woman and,
therefore, a post of Member is still reserved for a woman, is clearly not in
consonance with the language and spirit of the Act.

So far as the advertisement of one post for a Member (judicial) is

concerned, the same stands on a very different footing. The Consumer Courts
constituted under the Act provide an additional and alternate forum to consumers
to seek redressal of their grievance in relation to the goods & services that they
may procure for consideration and for their personal use or consumption. The
Consumer Courts which have a 3-tier hierarchy, are required to function in
compliance of the principles of natural justice. They are vested with the same
powers as a Civil Court while trying a suit in respect of various matters, such as
summoning and enforcing the attendance of any defendant or witness,
examination of the witnesses on oath; the discovery and production of any
document or other material object producible as evidence; the reception of
evidence on affidavits; the requisitioning of the report of the concerned analysis or
test from the appropriate laboratory or from any other relevant source; issuing of
any commission for the examination of any witness, and; such other matter as may
be prescribed.

The aforesaid being the position, if the Government decides to specifically appoint
a person having judicial background so as to facilitate the creation of a bench of
the State Commission and, therefore, advertises the post by inviting applications
from persons having a judicial background, the petitioners can have no grievance,

57
particularly when the percentage of the persons having judicial background would
not exceed 50%, even after the filling up of the advertised post.

The State Government is entitled to fill the vacancy of a Member

from amongst the persons having judicial background if that is the need of the
hour. There is no purpose of inviting applications from the general public
under Section 16(1)(b) and then making an appointment of a person having
judicial background from amongst the applicants. Unless a specific advertisement
is issued to make appointment of a person having judicial background, it is quite
likely that persons with such credentials may not even apply. At the same time, it
would be a wasted exercise for those who do not have such background, to require
them to submit their applications, if the need is to appoint a person having judicial
background.

As aforesaid, Mrs. Kanwal Inder has already retired and even if the
President of the State Commission is considered as a "member" for the purpose
of Section 16(1)(b) of the Act, the appointment of another person having a judicial
background would not breach the upper limit of 50% of posts of members of the
State Commission. Since the tenure of the persons of the State Commission is
provided for in Section 16(3), the State Government would in advance, be aware
of the date of expiry of the term of each of the members, and would do well to
advertise the posts in advance to fill up the impending vacancies, so that the work
of the Consumer Courts do not suffer due to non-filling up of vacancies.

For all the aforesaid reasons, I partially allow these petitions and
hold that the advertisement in question issued by respondent No. 2 for filling the
post of Member (Female - non-judicial) is contrary to the provisions of the Act.
However, the said advertisement to fill the post of a Member (judicial), i.e., to
appoint a person having judicial background is in accord with Section 16 of the
Act and is, therefore, upheld.

58
Case – 3: Supreme Court Advocates-On-Record vs Union Of India on 6
October, 1993: AIR 1994 SUPREME COURT 268, 1993 (4) SCC 441, 1993
AIR SCW 4101, (1993) 5 JT 479 (SC), (1993) 5 SERVLR 337

Union of India (1990) 2 S.C.R. 433 and the matters connected

therewith, the papers of Writ petition No. 1303 of 1987 - Supreme Court
Advocates-on-Record Association and Anr. v. Union Of India were directed to be
placed before the learned Chief Justice of India for constituting a Bench of nine
Judges to examine the two question referred therein, namely, the position of the
Chief Justice of India with reference to primacy, and justiciability of fixation of
Judge strength. That Order was made since the referring Bench was of the
opinion, that the correctness of the majority view in S.P. Gupta and Ors. etc. etc. v.
Union of India and Ors. etc. etc. (1982) 2 SCR 365 : (AIR 1982 SC 149), required
reconsideration by a larger Bench. This is how these questions arise for decision
by this Bench.

The context in which the aforesaid two questions have been

referred for decision by this Bench requires that they be considered in all the facts
as were argued before us by all, to give a comprehensive answers to the problem.

Able assistance was afforded to us by several eminent counsel who

appeared to canvass the different viewpoints in order to focus attention on every
aspect of these questions. Sarvashri F.S. Nariman, Kapil Sibal, Ram Jethmalani,
P.P. Rao and Shanti Bhushan argued for reconsideration of the majority opinion in
S.P. Gupta, contending that the role of the Chief Justice of India in the matter of
appointments to the Supreme Court and the High Courts and transfers of the High
Court Judges and Chief Justices has primacy, with the executive having the role of
merely making the appointments and transfers in accordance with the opinion of
the Chief Justice of India. This, in substance, was the common theme of their
address. However, there were minor variations between them relating to the extent
of exclusion of the executive's role. One point of view canvassed was that the
primacy of the Chief Justice of India is in all matters; another point of view was

59
that in an exceptional case the executive may not make an appointment
recommended by the Chief Justice of India if, for strong reasons disclosed to the
Chief Justice of India, that appointment was considered to be unsuitable. It was
also contended by them that the matter of fixation of the Judge-strength
under Article 216 is justiciable, there being some difference between them about
the extent to which it is justiciable. Shri S.P. Gupta, petitioner-in-person in Writ
Petition No. 156 of 1993, also argued that the majority opinion in S.P. Gupta v.
Union of India (1982) 2 SCR 365 : (AIR 1982 SC 149) , is incorrect.

Shri K. Parasaran by and large argued in favour of affirmance of

the majority opinion in S.P. Gupta, contending that there is no occasion to take a
different view, more so when, in spite of that decision, in the actual working, the
Government of India gives the greatest weight to the opinion of the Chief Justice
of India; and, except on rare occasions, appointments have been made only in
accordance with the opinion of the Chief Justice of India. Shri Parasaran
submitted that the Constituent Assembly Debates show that the plea for primacy
of Chief Justice of India, or the requirement of his concurrence in making the
appointment, was considered and expressly discarded while drafting the
Constitution. He also submitted that the several provisions in the Constitution
relating to the oath of office; fixity of tenure; restriction against alteration of
conditions of service to the detriment of the judges after their appointment;
salaries and pensions being charged on the Consolidated Fund; restriction on
discussion of their conduct in the legislature; power to punish for contempt; and
open hearing in courts are sufficient safeguards for the accountability of the
judiciary and therefore, no further exclusion of the executive's role in the process
of appointment of Judges is contemplated.

The learned Attorney General, in substance, canvassed for

acceptance of the opinion of Pathak, J. (as he then was) in S.P. Gupta as the
correct view, providing a middle course. The learned Advocate General of
Karnataka agrued for reconsideration of the majority opinion in S.P. Gupta. He
contended that the role of the executive is merely to suggest the names of those it

60
considers suitable, to the Chief Justice, but initiation of the proposal must be by
the Chief Justice and the opinions of the Chief Justice of India and Chief Justice
of the High Court are entitled to much greater weight. The learned Advocate
General submitted, that any person disapproved of by the Chief Justice of India
cannot be appointed a Judge; and the President is not bound to appoint every one
who may be recommended. He also submitted that the opinion of the judiciary
binds the executive even in the matter of fixation of Judge-strength under Article
216, as a matter of policy. On the other hand the learned Advocate General of
Sikkim contended that the primacy is in the executive, and the majority opinion in
S.P. Gupta is correct. To the same effect was the submission of the learned
Advocate General of Madhya Pradesh.

Shri R.K. Garg submitted that the opinion of Pathak, J. (as the then
was) in S.P. Gupta is preferable, that there is primacy of the role of the Chief
Justice of India in the process of appointment, which is an inter-grated process.
The submissions of some others who addressed us fall within the broad
parameters of the rival contentions.

It is unnecessary for us the burden this opinion with the full

historical background in which these questions arise for decision, since the same
is stated at length in S.P. Gupta and, along with the subsequent developments,
mentioned in the referring Order. However, for the sake of convenience, a brief
resume of the background in which these questions have to be considered, may be
given.

It is, therefore, realistic that there has to be room for discretionary

authority within the operation of the rule of law, even though it has to be reduced
to the minimum extent necessary for proper govenance; and within the area of
discretionary authority, the existence of proper guidelines or norms of general
application excludes any arbitrary exercise of discretionary authority. In such a
situation, the exercise of discretionary authority in its application to individuals,
according to proper guidelines or norms, further reduces the area of discretion; but

61
to that extent discretionary authority has to be given to make the system workable.
A further check in that limited sphere is provided by the conferment of the
discretionary authority not to one individual but to a body of men, requiring the
final decision to be taken after full interaction and effective consultation between
them, to ensure projection of all likely points of view and procuring the element of
plurality in the final decision with the benefit of the collective wisdom of all those
involved in the process. The conferment of this discretionary authority in the
highest functionaries is a further check in the same direction. The constitutional
scheme excludes the scope of absolute power in any one individual. Such a
construction of the provisions also, therefore, matches the constitutional scheme
and the constitutional purpose for which these provision were enacted.

It is well known that the appointment of superior Judges is from

amongst persons of mature age with known background and reputation in the legal
profession. By that time the personality is fully developed and the propensities
and background of the appointee are well known. The collective wisdom of the
constitutional functionaries involved in the process of appointing superior Judges
is expected to ensure that persons of unimpeachable integrity alone are appointed
to these high offices and no doubtful persons gain entry. It is not unlikely that the
care and attention expected from them in the discharge of this obligation has not
been bestowed in all cases. It is, therefore, time that all the constitutional
functionaries involved in the process of appointment of superior Judges should be
fully alive to the serious implications of their constitutional obligation and be
zealous in its discharge in order to ensure that no doubtful appointment can be
made. This is not difficult to achieve.

The question of primacy of the role of the Chief Justice of India in

the context of appointment of Judges in the Supreme Court and the High Courts
must be considered in this backdrop for the proper picture of the constitutional
scheme to emerge from the mixture of various hues, to achieve the constitutional
purpose of selecting the best available for composition of the Supreme Court and
the High Courts, so essential to ensure the accountability of the judiciary, and,

62
thereby, to preserve democracy. A fortiori any construction of the constitutional
provisions which conflicts with this constitutional purpose or negates the avowed
object has to be eschewed, being opposed to the true meaning and spirit of the
Constitution and, therefore, an alien concept.

Thus, even under the Government of India Act, 1935, appointments

of Judges of the Federal Court and the High Courts were in the absolute discretion
of the Crown or, in other words, of the executive, with no specific provision for
consultation with the Chief Justice in the appointment process. The consultation,
if any with the Chief Justice under the Government of India Acts was merely to
enable the executive to take into account that view, if it so desired, but prior
consultation with the Chief Justice was no an essential prerequisite.

When the Constitution was being drafted, there was general

agreement that the appointments of Judges in the superior judiciary should not be
left to the absolute discretion of the executive, and this was the reason for the
provision made in the Constitution imposing the obligation to consult the Chief
Justice of India and the Chief Justice of the High Court. This was done to achieve
accountability of the Judges of the superior judiciary even at the time of their
appointment, instead of confining it only to the provision of security of tenure and
other conditions of service after the appointment was made. It was realised that
the accountability of the judiciary had to be safeguarded not merely by providing
security of tenure and other conditions of service after the appointment, but also
by preventing the influence of political considerations in making the
appointments, if left to the absolute discretion of the executive as the appointing
authority. It is this reason which impelled the incorporation of the obligation of
consultation with the Chief Justice of India and the Chief Justice of the High
Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose
this purpose in prescribing for such consultation, even though the appointment is
ultimately an executive act.

63
 This clear departure in the constitutional scheme from the earlier
pattern in the Government of India Acts, wherein the appointments were in the
absolute discretion of the Crown, is a sure indication that irrespective of the
question of primacy of the Chief Justice of India in the matter of appointments,
the Constitutional provisions cannot be construed to read therein the absolute
discretion of primacy of the Government of India to make appointments of its
choice, after completing formally the requirement of consultation, even if the
opinion given by the consultees of the judiciary is to the contrary. In our opinion,
this departure made in the Constitution of India from the earlier scheme under the
Government of India Acts, is itself a strong circumstance to negative the view that
in the constitutional scheme primacy is given to the opinion of the Government of
India, notwithstanding the mandate of obligatory consultation with the Chief
Justice of India all cases, and also with the Chief Justice of the High Court in the
case of appointment to a High Court.

The consideration must, therefore, be confined to the comparative

weight to be attached to the opinion of the Chief Justice of India vis-a-vis the
opinion of the other consultees and the Central Government.

It follows that the view of Bhagwati, J. (as he then was) in S.P.

Gupta which reflects the majority opinion therein, at least to the extent indicated
hereafter, conflicts with this constitutional scheme, and, with respect, does not
appear to be a correct construction of the provisions in Article 124(2) and 217(1).

It is obvious, that the provision for consultation with the Chief

Justice of India and, in the case of the High Courts, with the Chief Justice of the
High Court, was introduced because of the realisation that the Chief Justice is best
epuipped to know and assess the worth of the candidate, and his suitability for
appointment as a superior judge; and it was also necessary to eliminate political
influence even at the stage of the initial appointment of a judge, since the
provisions for securing his accountability after appointment were alone not
sufficient for an independent judiciary. At the same time, the phraseology used

64
indicated that giving absolute discretion or the power of veto to the Chief Justice
of India as an individual in the matter of appointments was not considered
desirable, so that there should remain some power with the executive to be
exercised as a check, whenever necessary. The indication is, that in the choice of a
candidate suitable for appointment, the opinion of the Chief Justice of India
should have the greatest weight; the selection should be made as a result of a
participatory consultative process in which the executive should have power to act
as a mere check on the exercise of power by the Chief Justice of India, to achieve
the constitutional purpose. Thus, the executive element in the appointment process
is reduced to the minimum and any political influence is eliminated. It was for this
reason that the word 'consultation' instead of 'concurrence' was used, but that was
done merely to indicate that absolute discretion was not given to any one, not even
to the Chief Justice of India as individual, much less to the executive, which
earlier had absolute discretion under the Government of India Acts.

The primary aim must be to reach an agreed decision taking into

account the views of all the consultees, giving the greatest weight to the opinion
of the Chief Justice of India who, as earlier stated, is best suited to know the worth
of the appointee. No question of primacy would arise when the decision is reached
in this manner by consensus, without any difference of opinion. However, if
conflicting opinions emerge at the end of the process, then only the question of
giving primacy to the opinion of any of the consultees arises. For reason indicated
earlier, primacy to the executive is negatived by the historical change and the
nature of functions required to be performed by each. The primacy must,
therefore, lie in the final opinion of the Chief Justice of India, unless for very
goods reasons known to the executive and disclosed to the Chief Justice of India,
that appointment is not considered to be suitable.

With regard to the role of the Chief Justice of India vis-a-vis the
Chief Justice of the High Court in making appointments to the High Court, I
would favour their views to coalesce because on that depends discipline in the
judicial family. As said above, the appointments to the High Court are not a local

65
affair or a State subject. At times local affairs may appear messed up and
complicated which cannot be conducive to the emergence of right appointments.
As said before, the Chief Justice of India has an over all role in the image and
upkeep of the judiciary for he has a hand in the appointment of every High Court
Judge and also a hand in the matter of transfers of Judges from one High Court to
another. Those transfers need to have a basis. Unless he is obliged under the
Constitutional scheme to oversee the functioning of the High Courts, he cannot
purposively have a participatory role in the subject of transfers. In that limited
hierarchical sense, the voice of the Chief Justice of India, in my view, to the
proposal, should there be a difference, unexpected though, be the determining
factor. The views of the Chief Justice of the High Court regarding an appointment,
being virginal and primary in nature, he being the initiator, would normally be
entitled to great accommodation, but should there ever be a difference with the
views of the Chief Justice of India, the latter's view should be allowed to take the
lead. For it cannot be ever said in the constitutional scheme that there are as many
judiciaries in the country as of the High Court; the Supreme Court being just
another. As a wing of the political set up, the judiciary is one whole, knitted
hierarchically under the Constitution in the manner suggested earlier and in the
preceding paragraphs, and by allocation of specific roles.

Transfers of Judges from one High Court to another is almost the

judiciary's internal affair. The role of the Chief Justice of India in that regard is
primal in nature because this being a topic within the judicial family, the
Executive cannot have an equal say in the matter. Here the word 'consultation'
would shrink in a mini form. Should the Executive have in equal role and be in
divergence of many a proposal, germs of indiscipline would grow in the judiciary.
For instance take the case of a recommendation made by a Chief Justice of the
High Court to which the Chief Justice of India is in dis-agreement, and the
Executive preferring the view of the Chief Justice of the High Court makes the
appointment and which Judge is recommended to be transferred by the Chief
Justice of India to another High Court. In the first place, preferring the opinion of

66
the Chief Justice of the High Court over and above that to the Chief Justice of
India erodes the primacy of the Chief Justice of India based on his status, rank and
precedence constitutionally noticed, and in the second place, recommendation of
transfer of that Judge to another High Court, makes the proposal suspect. This
obviously is a breeding ground of indiscipline. So the role of the Chief Justice of
India in the matter of appointment of Judges of the High Court and their
transferability are connected matters which cannot be divorced on the mere fact of
the possibility of their separate happening. The role of the Chief Justice of India in
this twin subject has to be viewed from the self angle, i.e. to subserve the
accountability of judiciary in the interest of the Indian people.

Thus on the question of primacy I conclude to say that the role of

the Chief Justice of India in the matter of appointments to the Judges of the
Supreme Court is unique, singular and primal, but participatory vis-avis the
Executive on a level of togetherness and mutuality, and neither he nor the
Executive can push through an appointment in derogation of the wishes of the
other. S.P. Gupta's case to that extent need be and is hereby explained away
restoring the primacy of the Chief Justice. The roles of the Chief Justice of India
and Chief Justice of the High Court in the matter of appointments of Judges of the
High Court, is relative to this extent that should the Chief Justice of India be in
disagreement with the proposal, the Executive cannot prefer the views of the
Chief Justice of the High Court in making the appointment over and above those
of the Chief Justice of India. In the matters of transfers of Judges from one High
Court to another, the role of the Chief Justice of India is primal in nature and the
Executive has a minimal, if not, no say in the matter, for consultation envisaged
under Article 222 of the Constitution is used in a shrunk from and more as a
courtesy, the subject being one relating to the in- working of the judiciary.

I am in dis-agreement, though regretfully but respectfully, with the

views of the majority in virtually re-writing the Constitution to assign a role to the
Chief Justice of India, in the whole conspectus of the Constitution, as symbolic in
character and to his being a mere spokesman representing the supposed vies of

67
entire judiciary. I also dis- agree, likewise, in the creation of and vesting of powers
assumed, in the hands of the oligarcy representing the judiciary as a whole created
by adding words to the Constitution by interpretative exercise so to silence the
singular voice of the Chief Justice of India of ever. I also disagree to the denial of
judicial review on the subject on the supposition that it would be the judiciary's
act, as that is against the basic structure of the Constitution. Subject to the views
afore-expressed, I am, by and large, in respectful agreement with the opinion of
my learned brother Ahmadi, J. Necessarily and sequally, save to the views afore-
expressed by me, I am in respectful dis-agreement with the view of my learned
brethren Pandian and Kuldip Singh, JJ. since they are supportive of the majority
view, save and except where their views accord with mine and that of brother
Ahmadi, J.

Since neither before the referring bench nor in the pleading was
any point raised as to the innovation and application of service jurisprudence to
the induction into the higher judiciary, or to the concept of reasonable
expectations, I do not feel obliged to even touch these questions. It needs also to
be added that nothing ever was projected before us on these subjects as indicated.
As stated in the outset we did not have the benefit of a discussion inter-se on
which the desirability of going into these aspects may have been gone into. The
majority has expressed views thereon without alerting counsel appearing and
others concerned. A lot can be said against such views of the majority out for the
present the comment be kept reserved. I would rather desist conviction on the
subject and prefer to remain advised. So, in my view, on this aspect, the opinion is
obitor. Consideration on these points was wholly unnecessary on the rigid terms of
the reference. For such view I am with respect in disagreement with the majority.

On the question of justiciability of the Judge-strength, I have

nothing useful to add. While parting with this opinion, I join hands with my
learned brethren in recording my sense of gratitude to the galaxy of men who
addressed us at the bar in this venture, which could aptly be called a labour of

68
love, and to have enlightened us on the subject with their professional skill,
analysis and wisdom.

Case – 4 : Surendra Narain Singh & Ors vs State Of Bihar & Ors on 24
April, 1998: AIR 1998 SUPREME COURT 1841, 1998 (5) SCC 246, 1998 AIR
SCW 1638, 1998 LAB. I. C. 1864, 1998 (2) BLJR 975, 1998 BLJR 2 975,
(1998) 2 SCR 1165 (SC), 1998 (3) SCALE 242, 1998 (4) ADSC 397, 1998 (2)
UJ (SC) 128, (1998) 3 SERVLJ 129, (1998) 3 JT 489 (SC), (1998) 4 SERVLR
97, 1998 SCC (L&S) 1317, (1998) 2 LABLJ 342, (1998) 2 LAB LN 948, (1998)
4 SCT 828, (1998) 4 SUPREME 221, (1998) 3 SCALE 242

The break up of 200 posts was 152 posts for general category and
48 posts were reserved for SC/ST. The BPSC conducted the written examination
sometime in December, 1973. On August 26, 1974 the High Court of Patna
conveyed its approval to the proposal of the BPSC to fix qualifying marks at 40%
for general category candidates and 30% for SC/ST candidates. Those who were
qualified in the written tests in terms of Rule 19 of 1955 Rules were called for
viva-voce in August - September, 1974. At the conclusion of these formalities a
common Select List based on merits was prepared. Although 48 posts were
reserved for SC/ST candidates but only 15 from the SC/ST category could qualify.
Thus the BPSC forwarded the list of 158 candidates to the Bihar Government for
appointment as Munsifs under 1955 Rules of which 143 candidates belonged to
general category and 15 to the SC/ST. Those 158 candidates came to be appointed
between March 1975 and 22nd May, 1975 as Munsifs under 1955 Rules. While
this process was going on, on October 14, 1974, another advertisement under
1974 Rules was issued by the BPSC for appointment of 152 Munsifs to fill in
additional temporary posts of Munsifs created by the Bihar Government. After
holding the written examination and viva-voce tests, merit list of 152 candidates
was sent by BPSC to the Government of Bihar, which appointed them under 1974
Rules between 23. 5. 1975 and 17. 11. 1976 initially for a period of six months but
the said period was extended thereafter till their confirmation on 22. 11. 1985.
Between June 14, 1975 and August 4, 1975 additional nine candidates as per the

69
merit list prepared under 1955 Rules came to be appointed taking the total number
of appointments to 167 candidates comprising of 152 candidates of general
category and 15 candidates of SC/ST category. Resultantly 33 posts of SC/ST
candidates remained vacant for want of qualified candidates.

There was acute shortage of Munsifs and since the candidates from
the SC/ST category were not available in the merit list prepared under 12955
Rules, the State Government sometime in June, 1976 de-reserved these 33 posts.
In view of this decision, a list of 33 candidates from the merit list prepared under
1955 Rules was forwarded to the Government and accordingly between 17th June,
1976 and 1st September, 1976 these 33 candidates came to be appointed as
Munsifs, however one of them died lateron. The respondent Nos.3 to 34 are
appointees falling in this category. These 32 candidates were confirmed on 9. 3.
1983 w. e. f. the dates they were appointed. These 32 candidates were given the
seniority over the appellants who were recruited under 1974 Rules and were in
fact appointed earlier to them. Naturally this determination of inter-se seniority
between 32 candidates appointed under 1955 Rules and the appellants appointed
under 1974 Rules sought to be challenged by the appellants in Writ Petitions
under Article 226 of the Constitution of India in the Patna High Court. There were
two sets of writ petitions (1) the appellants (writ petitioners) who were selected
and appointed under 1974 Rules and (2) the SC/ST candidates who were selected
and appointed under 1955 Rules. It is a common premise that the respondent Nos.
3 to 34 were in fact appointed later in point of time than these appellants. At this
stage it needs to be stated that these 32 respondents were placed above the SC/ST
candidates in the merit list prepared under 1955 Rules.

The controversy as regards the seniority started when the Munsifs

appointed from 15th Judicial Service Examination under 1955 Rules were
confirmed by Notification dated 9.3. 1983 w. e. f. the different dates in the years
1977 and 78 whereas the Munsifs appointed under 1974 Rules were confirmed by
Government Notification dated 22. 11. 1985 w. e. f. 1. 9. 80 which gave advantage
to these 32 respondents. Similarly the Munsifs appointed in subsequent three

70
batches i. e. 16th, 17th and 18th Judicial Service Examinations were also made
senior to the Munsifs appointed under 1974 Rules. It would be appropriate at this
stage to refer to the litigation started in 1985 at the behest of the appellants in
CWJC Nos.6216/85 wherein a part of Rule 9 of 1974 Rules was challenged. This
Rule says that on absorption of Munsifs appointed under this Rule "will not be
entitled to reckon the period of his service as temporary Munsif for the purpose of
his seniority". Challenge to this part of the Rule was sustained by the High Court
being unjust and arbitrary and consequently a direction was issued by the Patna
High Court that seniority of the appointees under 1974 Rules be re-fixed in
accordance with law ignoring the struck down part of Rule 9.

The Munsifs appointed under 1974 Rules including some of the

appellants claimed seniority from the actual date of their appointments i. e.
23.3.1975 and requested that they be placed above the present respondents Nos. 3
to 34. Against the decision rendered by the Patna High Court in CWJC
No.6216/85 some of the Munsifs appointed pursuant to 15th, 16th, 17th and 18th
batches apprehending that their seniority might be affected moved this Court by
filling three Special Leave Petition (Civil) Nos.8699, 9354 and 11565/86 and the
same were dismissed

On this backdrop, pleadings of the parties to the present

proceedings may now be summarised. According to the appellants they were
appointed in 1975/1976 earlier in point of time to the respondents Nos.3 to 34 and,
therefore, these respondents could not have been, placed above from them in the
seniority list. Such a course was illegal, unconstitutional and violative of Articles
14 and 16 of the Constitution of India. The decision of the Patna High Court in
CWJC No.6126/85 and the order passed by this Court while dismissing the
Special Leave Petition Nos.8698, 9354 and 11565/86 must be treated conclusive
and binding upon the respondents and in view thereof the respondents cannot
claim the seniority over them. The appellants pleaded that the respondents
projected an incorrect picture before the Supreme Court that the appointments of
some of the Munsifs of 15th Judicial Examination were delayed on account of

71
medical report and police verification. None of the respondents belonged to these
categories but on the contrary they were appointed as Munsifs against the posts
reserved for SC/ST. The State Government had no power to de-reserve these 33
posts without following the due procedure. These 33 posts must be deemed to
have remained vacant and against these vacancies the appellants came to be
appointed. Thus there existed no vacancy and, therefore, respondents Nos. 3 to 34
could not claim that they were appointed against such vacant posts. The appellants
having been appointed earlier, they must be treated senior to respondents Nos.3 to
34. Length of service would be the only proper criteria for fixing the seniority and
any deviation therefrom would be violative of Articles 14 and 16 of the
Constitution of India.

The other set of appellants in Civil Appeal Nos.1385-86 of 1991

belong to SC/ST group. They were appointed as Munsifs on the basis of the merit
list 15th Bihar Judicial Service Examination held under 1995 Rules. They pleaded
that since they were appointed against the reserved posts earlier to respondent
Nos.3 to 34 although they were placed higher in the merit list, they could not
legitimately claim seniority over them. The seniority must be determined on the
basis of actual date of appointment and not with retrospective effect. The order
dated 14. 6. 85 of the Standing Committee of the High Court was illegal inasmuch
as these respondents were made senior to them on the erroneous assumption that
these 33 posts reserved for SC/ST were de- reserved but ignoring that no due
procedure was followed by the Government by the Government of Bihar.

The High Court in its counter affidavit which came to be adopted

by the State of Bihar pleaded inter alia that the appellants were appointed under
1974 Rules as ad hoc Munsifs whereas respondents Nos.3 to 34 were appointed
against 200 posts under 1955 Rules. The BPSC pursuant to the advertisement
issued in April, 1973 in respect of 15th Judicial Examination under 1955 Rules
followed the correct procedure laid down under Rules 19 and 20 and prepared a
merit list of 24% candidates and recommended 158 candidates for appointment as
Munsifs. The break up was 143 form general category and 15 from SC/ST. They

72
came to be appointed between 8. 3. 1975 to 22. 5. 1975 as per the merit list
keeping in view the reservation for SC/ST. Further recommendations of eight
candidates from general category were made on 14.6.1975 and 4. 7. 75 in addition
t one more recommendation from general category on 24. 8. 1977. It was pleaded
that there was a procedural delay in de-reserving 3 vacant posts to general
category and there was no fault of theirs. These 33 vacancies of Munsifs were
earmarked for 13th examination and were in existence at the time when
respondents Nos. 3 to 34 were appointed. The appellants have no claim over these
33 de-reserved posts as they were selected under 1974 Rules. The decision taken
by the Standing Committee of the High Court on 10. 9. 1987 treating the
respondent Nos.3 to 34 as seniors to the appellants was perfectly legal and
justified and the earlier decision of the Standing Committee dated 14. 7. 86 stood
rescinded. The appellants have no right to claim seniority over the respondents
Nos. 3 to 34 which was determined in accordance with the recommendations
made by the BPSC in terms of Rule 20 of 1955 Rules.

The Patna High Court after considering the rival contentions of the
parties and no interpretation of Rule 20 of 1955 Rules by its Judgment and order
dated May 3, 1991 dismissed all the Writ Petitions. It is against this judgment and
order the appellants (writ petitioners) have filed these Appeals by Special Leave to
this Court. The Main question that needs to be considered in these Appeals relates
to the interpretation of rule 20 of 1955 Rules and in particular the words "as such"
occurring therein.

It was then urged that the BPSC and the State Government have no
owner to convert 33 vacancies of SC/ST into General Category. These vacant
posts according to the learned counsel for the appellants ought to have been
carried forwarded.

This submission does not appeal to us for the reason that there is no
provision under 1955 Rules to carry forward the vacancies/posts reserved for
SC/ST. in the absence of any such provision under 1955 Rules, it was not

73
permissible for the BPSC or the State Government to adopt such courses. It is true
that the BPSC after submitting the original list of 152 candidates from General
Category, 10 from SC and 5 from ST Categories corresponded with the State
Government to convert these 33 vacancies/costs of SC/ST to General Category
and in that process, Government ultimately took a decision converting these 33
vacancies/posts of SC/ST to General Category in 1976 and only thereafter the
BPSC submitted the supplementary list of 33 candidates from the merit list to the
State Government for appointment as Munsifs. In the absence of any provision
under 1955 Rules to carry forward the SC/ST vacancies/posts and in view of
mandate or Rule 20, the BPSC was obliged to nominate the candidates from the
merit list to the vacant posts reserved for SC/ST. The nominations and
appointments of respondent Nos.3 to 34 (32) candidates was delayed till 1976
because a supplementary list was not prepared because of some misconception of
law for which these respondents cannot be blamed. It is in these circumstances,
we are of the considered view that the respondent Nos.3 to 34 belonged to the
batch of 15th Examination held under 1955 Rules in 1974 will have to be given
the placement in the seniority list in terms of the merit list. The appellants in Civil
Appeal Nos.1381- 84/91 were admittedly selected and appointed as Munsifs
pursuant to the 152 posts advertised the 15th Examination was held under 1955
Rules. These appellants, therefore, cannot claim the seniority over respondent
Nos.3 to 34 in the seniority list.

Mr. Tripathy then urged that in view of the order of this Court in
Special Leave Petition, the claim of the respondent Nos.3 to 34 is barred by res
judicata and/or constructive res judicata and they cannot be permitted to claim
seniority over the appellants.

In the case of Rajendra Sinha (supra), the issue involved was that
the appointees under the 1974 Rules challenged a part of the Rule 9 being
arbitrary and in constitutional on the ground that their adhoc services were not
reckoned for the purposes of determining their seniority. That part of the Rule 9
was struck down by the Patna High Court.

74
 It appears that some of the respondents from amongst respondent
Nos. 3 to 34 got impleaded to the proceedings apprehending that their seniority
might be affected and, therefore, laid this Court by filling three Special Leave
Petition Nos.8698, 9354 and 11656 of 1986.

Case -5: Kadra Pahadiya And Ors. Etc vs State Of Bihar Etc on 19 March,
1997: AIR 1997 SUPREME COURT 3750, 1997 AIR SCW 1776, 1997
CRILR(SC&MP) 340, 1997 APLJ(CRI) 29, 1997 (3) SCALE 93, 1997 (3)
ADSC 413, 1997 CALCRILR 162, (1997) 3 JT 738 (SC), 1997 (3) JT 738,
1997 (4) SCC 287, 1997 SCC(CRI) 553, 1998 (1) FAC 196, 1997 (2) BLJR
1148, 1997 CRILR(SC MAH GUJ) 340, (1997) 3 SCR 32 (SC), (1997) 1
RECCRIR 472, (1996) 3 CURCRIR 91, (1996) MPLJ 662, (1997) 2 PAT LJR
71, (1996) JAB LJ 642, (1997) 2 SCT 650, (1997) 2 RECCRIR 541, (1997) 3
SUPREME 193, (1997) 1 CRIMES 289, (1997) 1 MADLW(CRI) 376, (1997) 1
SCJ 653, (1997) 2 CURCRIR 129, (1997) 2 EASTCRIC 1, (1997) 2 SERVLR
241, (1997) 3 SCALE 93, (1998) 1 BLJ 280, (1997) 3 CRIMES 297, 1996
CALCRILR 325, (1997) 1 CALLT 255, (1997) 3 ALLCRILR 156, (1998) 1
FAC 196

Writ Petition No. 5943/80, along with Writ Petition No. 57 of 1979
(Hussainara Khatoon) was placed for final disposal on 4.8.1995. On that day the
latter was finally disposed of but insofar as the former petition is concerned,
counsel drew our attention to the point raised in his written submission in regard
to the appointment of Special Judicial Magistrates and Special Metropolitan
Magistrates under Sections 13 & 18 of the CrPC, 1973, (hereinafter called 'the
Code') respectively. The disposal of the petition was deferred for considering this
question.

Mr. Mukul Mudgal contended that the dockets of the Magistrates

all over the country were swollen on account of petty cases which could be
disposed of by the appointment of Special Judicial Magistrates and Special
Metropolitan Magistrates in sufficient numbers and once these cases are taken out

75
of the regular courts, the regular courts would be free to dispose of serious cases
faster, and that would meet the requirement of speedy justice. He submitted that
when cases are pending in such large numbers, there is no justification for not
using a part of the system envisaged by the Code According to him, it betrays
indifference and lack of concern for speedy disposal of cases.

At this stage, it would be proper to mention the facts of Writ

Petition No. 298/94 - yet another public interest litigation - based on an article
published in the magazine, "India Today", in its issue dated 31.7.1994, with the
caption "Ordeal of Innocents" by Sri Ruben Banerjee, narrating how rape victims
are detained in Remand Homes for long periods, and are virtually undergoing
imprisonment. Remand Homes are protective homes for women run by the State
Government, in which inter alia, destitute victims of rape are received with a view
to ensuring their safe custody, particularly where the victim is a minor and has no
guardian who can be trusted with her custody. This also enables the Court to
obtain their testimony during the trial of the offender, without there being hurdles
such as the non-availability of the prosecutrix, or tampering by the accused by
means of threats or allurement. What is reported by Sri Ruben Banerjee in his
article is that nearly 150 rape victims are languishing in three Remand Homes in
the State of West Bengal awaiting their release, which usually gets delayed if the
trial of the accused is prolonged. Apart from giving an over-all view, the article
also mentions three cases viz. those of Sarbani Ghosh, Rukhsana Khatoon and
Swapna Mazumdar.

Although the article was found sufficient to initiate proceedings

under the writ jurisdiction of the court, we thought it proper to put Sri Ruben
Banerjee to oath before issuing any notice to the State of West Bengal. Sri Ruben
Banerjee filed an affidavit in support of his article and, inter alia, disclosed the
real names of three victims mentioned in his article which was necessary for us to
set in motion the process of law. The State of West Bengal filed an affidavit of the
Director of Social Welfare without seriously disputing the state of affairs
mentioned in the article. The three women mentioned in the article were ordered

76
by the local courts of Session Section to be released on 29.7.1994, 4.7.1995 and
10.1.1995 respectively, subsequent to their attaining majority. The State also filed
a list of inmates in various Remand Homes for girls which discloses that barring
exceptions, most inmates are minors and the trial of the cases in which they are
witnesses still remain pending. In respect of some inmates in District Shelter,
Nadia, their ages have been omitted in the lists. Some inmates of these Remand
Homes had already attained majority (18 +). To illustrate, the girls at serial Nos.
18 & 23, are both aged 19 and have been interned since 1994. The woman at serial
No. 21 is aged 40 and has been in the institution since April, 1994. The
information submitted shows that they are victims of some offence or the other
but it does not disclose why such women who have already attained majority have
not yet been released. The information reveals that despite this the disposal of
their criminal cases has still been delayed, e.g., the inmate at serial No. 1 came in
the remand home of Liluah in 1987 and was still there on 30.7.1995 awaiting
completion of trial of the accused. There are various other instances of the same
kind. This brings into sharp focus the unhappy state of affairs in the criminal
justice system existing in the State. In the meantime other writ petitions received
from various jails concerning prolonged detention of prisoners were in progress.
This case was also taken up after those matters.

On 4.8.1995, the learned Counsel for the petitioners drew our

attention to Section 6(4) of the Code which contemplates appointment of Judicial
Magistrates of the IInd Class. Section 13 contemplates appointment of Special
Judicial Magistrates by the High Court if requested by the Central or the State
Government so to do, and Section 18 contemplates appointment of Special
Metropolitan Magistrates by the High Court if requested by the Central or the
State Government so to do.

A brief legislative history for the introduction of Sections

13 and 18 in the Code may not be out of place. Before the enactment of the Code,
a system Honorary Magistrate in addition to regular stipendiary Magistrates was
available. These Honorary Magistrates came from all walks of life. It was

77
expected that, by virtue of their education, experience and contact with people,
they would be able to deal with and effectively dispose of cases involving petty
offences. This introduced the idea of participation of citizen in the administration
of criminal justice. The institution of Honorary Magistrates was, therefore,
functional in character and was considered to be a useful and valuable adjunct to
the regular courts, particularly in the Metropolitan cities. Unfortunately, the
institution of Honorary Magistrates came in for widespread and serious criticism
within a short time. The criticism of misuse and abuse of the system led to the
Law Commission recommending the appointment of Special Judicial Magistrates
and Special Metropolitan Magistrates, vide Sections 13 and 19 of the
draft Criminal Procedure Code. Section 13 of the draft Code provided for the
appointment of Special Judicial Magistrates from amongst persons holding or who
had held any judicial office under the Union or a State or possessed such other
qualification as may be prescribed by the High Court.

Similar was the position in respect of Section 19 of the

draft Criminal Procedure Code, which provided that a person holding or who has
held as judicial post or any other person who possessed other qualifications as
may be prescribed, could be appointed a Special Metropolitan Magistrate. The
Law Commission had taken note of the experience of the judicial post for the
purpose of appointment and conferment of power of Special Judicial Magistrates
and Special Metropolitan Magistrates with the object of securing the expeditious
disposal of criminal case. The Joint Select Committee also took note of the
criticisms against the system of Honorary Magistrates and expressed the view that
that proper way to deal with the arrears of petty criminal cases was to appoint
sufficient number of stipendiary Magistrates as a wholesome deletion of the
institution of Honorary Members would give rise to problems in some States. The
Joint Select Committee suggested that provision be made for the appointment of
Special Metropolitan Magistrates and Special Judicial Magistrates with certain
modifications in the earlier system. One of the suggestions was that the appointees
should either be persons in Government service or those who have retired from

78
Government service. As a result of these deliberations, the two
provisions, Sections 13 and 18 came to be enacted in their present form.

It was contended that having regard to the pendency of a large

number of cases in criminal courts all over the country, it is essential that the
infrastructure contemplated by these provisions should be put to use so that, to
begin with, sufficient number of Special Judicial Magistrates and Special
Metropolitan Magistrates could be appointed, without unduly burdening the
exchequer, for the disposal of cases which are triable summarily under Sections
260 and 261 of the Code as well as cases which fall in table I under Section 320 of
the Code (compoundable by the parties). The counsel further submitted that there
was no justification for the State Governments and the Central Government for
not invoking the afore-mentioned provisions even after resolutions were adopted
in this behalf by the Conference of Chief Ministers and Chief Justices in 1993 and
which were later endorsed by the Law Minister's Meeting held in Calcutta on
17.11.1994. The Court, therefore, directed the issuing of notices to all the State
Governments, except Jammu & Kashmir, as well as the Central Government to
indicate whether or not the concerned states had invoked the aforesaid provisions
and if not, the reasons therefore. The State Governments were also required to
indicate how many traffic cases, or cases which fall in table I under Section 320 of
the Code, were pending in their States. The Central Government was required to
submit similar information in regard to the Union Territories. The Governments
were given time upto 15.9.1995 to submit the required information and the matter
was directed to be listed on 22.9.1995 for orders.

The Court carefully examined the information received from each

State. So far as the State of Madhya Pradesh was concerned, it had not taken any
action to request the High Court under Section 13 and 18 of the Code on the plea
that it had forwarded a proposal to the Central Government to amend Section
13 of the Code. This explanation did not satisfy us. So far as Delhi was concerned,
there were more two lakh cases pending in the Magisterial Courts which which
had been distributed amongst 88 Metropolitan Magistrates who were required to

79
work from 2.00 p.m. to 5.00 p.m. on every working Saturday. This would show
that the time of 88 Metropolitan Magistrates had to be expended for petty cases.
Despite such an arrangement, having regard to the huge number of traffic cases, a
large number of them remained pending. We noted with disapproval the lack of
initiative on the part of the administration in getting Special Metropolitan
Magistrates appointed for clearing these petty cases and for placing the highly
paid Metropolitan Magistrates for the disposal of petty matters. The State of U.P.
had not taken any such initiative. The State of West Bengal did not come out with
any response. The State of Karnataka disclosed that it had already taken the
initiative by writing to the High Court, but the High Court had not taken action in
the appointment of the Special Judicial Magistrates. So far the State of Kerala was
concerned, the High Court of Kerala informed the State Government that in the
prevailing circumstances there was no need for appointment of Special Judicial
Magistrates and/or Special Metropolitan Magistrates in the State. We directed the
High Court of Kerala to inform us as to whether there was no pendency of traffic
cases or other petty cases within the category of Sections 206 and 260 of the Code
which could justify such a stand. The state of Himachal Pradesh had already
invoked the afore-mentioned provisions and the High Court had, after framing
rules regarding such appointments, conferred powers on three officers. So far as
the State of Bihar is concerned, the Government had taken steps and the High
Court had decided to confer such powers on suitable persons. The notification,
however, had not been issued and it was not known how the power was proposed
to be exercised. The Registrar of the High Court of Patna was therefore, required
to explain the situation. In the State of Punjab, the matter was pending with the
High Court and the appointments were yet to be made. The High Court of Punjab
& Haryana has framed the necessary rules. Later, the Registrar of the High Court
informed us that six such appointments have been made. The State of Assam has
appointed 97 IAS Officers as Special Judicial Magistrates. The States which had
not responded to our direction were given further time.

80
 The Registrar, High Court of Calcutta, Appellate side, vide his
letter dated 14.12.1995, reported that the High Court had taken several steps for
withdrawal of petty cases, appointment of Special Magistrate etc. and that the
efforts had slowed down because the Government, upon the withdrawal of all
petty cases more than five years old, had opined that the existing Courts could
cope with the reduced volume of work, and that steps were now being taken to
frame rules.

We find it difficult to uphold this approach of the High Court

because it is based on a narrow reading of the said two sub-sections. In the first
place, it may be noticed that both the sub-sections confer power on the High Court
to make the appointments and confer such of the powers as it deems proper from
the whole bundle of powers conferrable by or under the Code on a Judicial
Magistrate of the first or second class or conferrable on a Metropolitan Magistrate
as the case may be. The choice of power to be conferred on the appointees under
these two provisions is left to the sole discretion of the High Court. The proviso to
each sub-section makes it clear that the appointee must possess such qualification
and experience in relation to legal affairs as the High Court may by rules specify.
Thirdly, the words "who holds or has held any post under the Government" do not
necessarily exclude judicial officers belonging to the subordinate judiciary of a
State/Union Territory. The sub-sections merely enable the High Court to appoint
persons, other than judicial officers, who hold or have held any post under the
Government and who possess the qualification and experience in relation to legal
affairs as may be specified by the High Court. Parliament has taken care to leave
the question of specifying the requirements for appointment to the High Court.
There is therefore, no warrant for placing a narrow construction on the words 'who
holds or has held any post under the Government' to confine them to appointments
of Government servants, present or past only, and to exclude members belonging
to the subordinate Judicial Services. Special provision in the nature of an enabling
provision had to be made because without such a provision, appointment of
Government servants, past or present, could not have been possible. Care has also

81
been taken to ensure that the appointments are made of persons who have the
necessary qualification and experience in relation to legal affairs which the High
Court considers necessary for the exercise of power that may be conferred on the
appointee. Furthermore, the duration of appointment has been restricted to one
year at a time which would give the High Court an opportunity to observe the
work of the appointee to enable it to decide whether or not to extend the
appointment for a further period, if the workload justifies such continuance. We
are, therefore, of the opinion that the High Court fell into an error in thinking that
Sub- section 13(1) and 18(1) of the Code totally exclude appointment of members
of the subordinate judiciary as Special Judicial Magistrates/Special Metropolitan
Magistrates. We, therefore, overrule the said decision.

For the assistance of the Court, Shri Rajiv Dhawan made written
submissions on the implementation of Sections 13 & 18 of the Code in which he
traced the history of the lay magistracy in England, Canada, Italy and India and
drew up a proposal for the lay magistracy in India including therein clauses for
appointment, removal, training, allowances, formation of benches, clerks, power
and jurisdiction. Mr. Mukul Mudgal, assisting the Court thereafter, drew up draft
rules in this regard. These draft rules were circulated for comments of all the
States/Union Territories involved. Comments were submitted by the State of West
Bengal and by the High Courts of Himachal Pradesh and Madras.

The position that now emerges is that practically every State has
paid attention to the provisions of Sections 13 and 18 of the Code and necessary
steps have been taken by them for giving effect to these provisions by appointing
suitable number of Special Judicial Magistrates/Special Metropolitan Magistrates.
They have also initiated the process of framing the rules required to give effect to
these provisions of the Code. It is not necessary to go into the details of the draft
rules framed by Shri Mukul Mudgal or the proposals made by Shri Rajiv Dhawan,
nor it is necessary to go into the comments on these proposals. No further orders
are required to be made in that behalf.

82
 There can be little doubt that when the calendars of criminal courts
(magistracy) in most of the States, barring a few geographically small States, are
clogged and as a result, trial of cases is delayed, there is no justification for not
setting a part of the machinery envisioned by the Code into motion.

The basic idea in providing for the appointment of Judicial

Magistrates, second class, is to ensure that petty cases do not occupy the time of
the regular magisterial courts. So also the idea underlying the provision for the
appointment of Special Judicial Magistrates/Special Metropolitan Magistrates
under Sections 13(1) and 18(1) respectively, is to relieve the regular courts of the
burden of trying those cases which could be disposed of by such Magistrates.
Parliament has advisedly left the decision as to the choice of power to be
conferred on such Magistrates with the High Court.

Once a request is received from the Central/State Government by

the High Court, the ball is entirely in the High Court, and it is the High Court and
the High Court alone which has to decide on the number of appointments to be
made, the choice of personnel to be entrusted with such power, and the extent of
power to be conferred on such persons. It is the High Court which has to specify
the qualification and/or experience that would be required for the discharging of
duties by such Magistrates. As pointed out earlier, the period for which such
appointments may be made must not exceed one year at a time, which shows that
these are not appointments by way of regular entry into service, and are mean to
be short-duration appointments to reduce the burden of pendency in regular
Courts. In our view, the appointees should view the call as a social obligation and
not employment; indeed as a social service to society.

That is the spirit of Section 13 and 18 and every appointee must

take the call in that spirit and not expect payment as if they are in the service of
the concerned State/Union Territory. That is the reason why the said two
provisions expect persons who have retired or are about to retire from
Government service to be appointed to help clear the pendency. Viewed from this

83
angle it seems fairly clear to us that retired Judicial Officers, officers of the
Registry of District Courts and High Courts, as well as other Government servants
who have the specified experience and qualification, can be requested to accept
appointments as part of social service and they may be paid a fee to meet their
out-of-pocket expenses and honorarium. We are sure that the High Courts will
find any number of public spirited, retired persons available to extend a helping
hand to the Criminal Justice System in the country. The High Court, we must add
by way of caution, must be extremely careful in the conferment of power and
should do so based on the qualification and experience of each appointee.

Section 320 of the Code enumerates offences punishable under

the Indian Penal Code which may be compounded with or without the permission
of the Court. Generally speaking, the Code divides crimes into three categories
namely (i) serious crimes which cannot be compounded and must be tried (ii)
crimes which can be compounded but only with the permission of the Court and
(iii) crimes which can be compounded by the wrong doer and the victim. Sub-
section (1) of Section 320 deals with the last mentioned category i.e. crimes which
can be compounded by the concerned parties without the permission of the Court.
The table immediately following Sub-section (1) enumerates the compoundable
offences in Column 1, sets out the section of the Indian Penal Code which makes
the act punishable in column 2, while column 3 indicates the person who may
compound the same. Sub-section (2) of Section 320 enumerates the offences
which may be compounded with the permission of the Court before which the
prosecution is pending. The table immediately following specifies the nature of
the offence, the corresponding provision in the Indian Penal Code and the person
who may compound the same. Sub-section (3) of Section 320 also makes the
abetment of such offence or the attempt to commit such offence compoundable. In
the case of a minor, an idiot, or a lunatic, any person competent to contract on his
behalf is held by Sub-section (4) to be competent to compound the offence. So
also in case the person competent to compound is dead, Sub- section (5) permits
his legal representative to compound the offence.

84
 We may also refer to Section 206 of the Code which provides a
special procedure for petty offences to be tried summarily. It further provides that
the Magistrate may issue summons to the accused, requiring him to appear in
person or through his lawyer, or if he desires to plead guilty, to transmit by post or
messenger, his plea of guilt along with the fine specified in the summons. So also
Chapter XXI comprising Section 260 to 265 provides for Summary Trials. We
have mentioned these provisions illustratively, merely to point out the category of
cases under the Indian Penal Code which could be considered to be disposed of
through the instrumentality of the Special Judicial Magistrates/Special
Metropolitan Magistrates, the power being conferred on them in a phased manner
depending on the experience gained on their working.

In the past, in certain States, large numbers of such petty cases

were withdrawn with a view towards reducing the burden on the regular courts.
We are of the opinion that unless a machinery is set up to ensure that such cases
will not pile up once again after the system is put on an even keel by the
withdrawal of such cases, such measure will not serve any purpose but will,
instead, send a wrong signal to the offenders that they can commit such infractions
with impunity as nothing will happen to them, and ultimately the cases would be
withdrawn. That will bring about more indiscipline in society rather than create a
culture of discipline which is so vital for national growth. But, if an adequate
machinery of the type envisioned by Sections 13 and 18 of the Code is placed in
position to ensure that cases do not pile up in future and then the cases are
withdrawn with a view to placing the system on an even keel, it will achieve the
desired objective to bring about discipline in society and eradicate crime. That is
because the wrong-doer will know that he will be immediately hauled up before a
Magistrate and would be punished if found guilty.

If the load of such petty crimes is taken out of the regular courts,
those courts would have time to deal with more serious crimes rather than have
their time consumed by such petty cases. Besides, petty cases would also be
disposed of with speed if sufficient number of Second Class Magistrates and

85
Special Judicial/Special Metropolitan Magistrates are appointed. With such a huge
pendency, it is difficult to understand the indifference in utilising this machinery
envisioned by the Code. The decision to invoke these provisions was taken in
1993 at the Conference of Chief Ministers and Chief Justices which was presided
over by the Prime Minister and was attended by the Chief Justice of India and yet
there was almost halting progress. Even today the machinery has not been set up
in some States, and where it has been set up, it is not in full strength as the status
position indicated State-wise earlier would show.

Case -6: Subhash Sharma And Others vs Union Of India on 26 October,

1990:Equivalent citations: 1991 AIR 631, 1990 SCR SUPL. (2) 433, AIR 1991
SUPREME COURT 631, 1991 AIR SCW 128, 1991 (1) SCC(SUPP) 574,
(1990) 4 JT 245 (SC), 1991 (2) UPLBEC 826, 1990 (4) JT 245, 1991 SCC
(SUPP) 1 574, (1991) IJR 217 (SC), (1990) 6 SERVLR 36, (1991) 2 UPLBEC
826, (1991) 2 CIVLJ 532

M.S. Ganeshan, Ms. M. Karanjawala (N.P.), H.S. Anand, P.H.

Parekh and Ms. Sunita Sharma for the Petitioners. Ashok Desai, Solicitor General,
Ms. A. Subhashini, P.S. Poti, K.R. Nambiar, (For Kerala), Probir Chowdhury (For
Assam), A.K. Panda (For Orissa), Ms. G.S. Misra, H.K. Puri, T.V.S.N. Chari (For
Bihar), S.K. Agnihotri (For Madhya Pradesh), Ms. Kamini Jaiswal (For
Chandigarh), Ms. S. Dik- shit (For U.P.), V. Krishnamurthy (For Tamil Nadu), B.
Parthasarthi (For Andhra Pradesh), Ms. Urmila Kapoor & Ms. S. Janani (For
Manipur), Aruneshwar Gupta, M.N. Shroff (For Gujarat). Mahabir Singh (For
Haryana), A.S. Bhasme (For Maharashtra), I. Makwana (For Rajasthan), Ms.
Urmila Kapur (For Manipur) and M. Veerappa (For Karnataka) the Respond- ents.

The Judgment of the Court was delivered by RANGANATH

MISRA, CJ. These are applications under Arti- cle 32 of the Constitution. The
first petition is by an advocate practising in this Court; the second by the Supreme
Court Advocates on Record Association and the last by the Honorary Secretary of
the Bombay Bar Association. These applications are in the nature of public

86
interest litiga- tion. The relief asked for is one for mandamus to the Union of India
to fill up the vacancies of Judges in the Supreme Court and the several High
Courts of the country and ancil- lary orders of directions in regard to the same.
The peti- tion from Bombay is confined to the relief of filling up of vacancies in
the Bombay High Court. Since common please were advanced and the relief
sought was of similar nature, these applications have been clubbed together and
heard from time to time.

In response to the rule, the Union of India took the stand through
the Attorney General that the petitions were not maintainable and the filling up of
the vacancies in the superior courts was not a justiciable matter. Reliance was
placed on the decision of this Court in the case' of S.P. Gupta v. Union of India,
[1982] 2 SCR 365. The objection raised by the learned Attorney General was
overruled by the Court by drawing a distinction between fixing the Judge strength
in the Courts or selection of judges on one side and the filling up of vacancies on
the basis of sanctioned strength on the other. This Court as an interim measure
took the view that while the ratio in S.P. Gupta's case left the matter of fixing up
of the Judge strength to the President of India under the constitutional scheme, and
the choice of Judges to the prescribed procedure, once the sanctioned strength was
determined it was the obligation of the Union of India to maintain the sanctioned
strength in the superior Courts and these cases were allowed to proceed.

Mr. Soli Sorabjee, the succeeding Attorney General, withdrew the

objection regarding this Court's jurisdiction and made a statement that he was of
the view that it was the constitutional obligation of the Union of India to provide
the sanctioned Judge strength in the superior courts and the default, if any, was a
matter of public interest and the writ petitions requiring a direction to the Union of
India to fill up the vacancies were maintainable.

From time to time administratively the Judge strength of the

different High Courts has been retired. At the time these matters were first placed
before us the total strength was 462 but later it has been enhanced to 470. The

87
enhancement has been on account of the fact that in the Judge strength of the High
Courts of Calcutta,. Himachal Pradesh, Karnata- ka, Madras and Rajasthan had
ten additions in all and the sanctioned strength of the Kerala High Court was
reduced by two. There was a time during the pendency of these writ petitions
affidavit filed before this Court on behalf of the Ministry of Law & Justice the
position as on 20th of Febru- ary, 1990, showed that as against the sanctioned
strength of 462,368 had been filled up and the vacancies were 94 in all. By
16.8.1980, the sanctioned strength had gone up to 470 and as against these, 440
appointments had been made. The total posts to be filled up were 30 in number--
19 being permanent and 11 additional vacancies. We gather that by now some
more appointments have been made and the number of unfilled posts has been
reduced to around 22.

These cases were adjourned from time to time with inter- im

directions calling upon Union of India to fill up the vacancies within specified
dates. As a result of monitoring by the Court by interim directions in these
petitions, the position has somewhat eased but 22 vacancies still remain to be
filled up. With retirements and other cognate processes the number of vacancies
keeps increasing from time to time. We had made it clear to the learned Attorney
General at the several interlocutory hearings that these petitions and the Court's
directions have nothing to do with the actual selection of particular Judges to be
appointed in the vacan- cies and that was a matter exclusively within the domain
of the constitutional scheme and concern of the concerned constitutional
functionaries. These petitions are concerned with the filling up of vacancies and
discharge of the con- stitutional obligation of the Union of India to the nation in
that behalf. We may point out that filing of these writ petitions and the
proceedings of the Court have helped the Union of India to fill up the vacancies to
a considerable extent by making the various constitutional authorities con- scious
of the urgency of problem and of their responses. We have noticed the fact that
while the process of filling up of vacancies was considerably slow prior to the
general election held in November, 1989, there has been an improve- ment in the

88
process from January this year. We have, howev- er, not been able to appreciate
the stand taken in some of the affidavits of the Union of India that as the place and
process of appointments has been expedited, the writ-petitions be taken to have
served their purpose and do not survive. We recall several occasions when our
interim directions were received not with any conspicuous enthusiasm and other
occasions when inspite of assurance and undertak- ings no progress was noticed.

II For more than six scores of years High Courts have been
functioning in this country. Earlier appeals lay from the High Courts to the Privy
Council in certain situations. Under the Government of India Act, 1935, a Federal
Court was stipulated which started functioning from 1937. With Inde- pendence of
India in 1947, the jurisdiction of the Privy Council got repealed. Our Constitution
provided for a Su- preme Court for the entire country and a High Court for every
State. The superior judiciary in India now, therefore, consists of the Supreme
Court and the High Courts. Article 50 in Part IV of the Constitution required the
State to take steps to separate the Judiciary from the Executive in the public
services of the States. By now that has been done. The constitutional scheme
postulates Rule of Law and inde- pendence of the judiciary. With a view to
providing the same as an indispensable factor for the sustenance of the demo-
cratic pattern of society, provisions have been made in the Constitution.

The Preamble of our Constitution stipulates justice--social,

economic and political for all citizens of India. It is too late in the day to dispute
the position that justice has to be administered through the courts and such
administration would relate to social, economic and political aspects of justice.
The Judiciary therefore be- comes the most prominent and outstanding wing of the
Consti- tutional System for fulfilling the mandate of the Constitu- tion. For its
sound functioning, it is, therefore, necessary that there must be an efficient judicial
system and one of the factors for providing the requisite efficiency is ensur- ing
adequate strength.

89
 Inspite of highlighting of the position by the Law Commission and
the warning administered by it, the process of providing adequate judge strength
commensurate with the volume of litigation has been usually slow. Subsequent
reports of the Law Commission have referred to this aspect.

The Commission took note of the position that due con- sideration
was not being bestowed upon the administration of justice and the importance of
the subject was not realised by the Executive authorities. Lack of adequate
financial provision and absence of appropriate funding of schemes for
improvement often led to abandonment of contemplated whole- some measures
and made long term planning difficult. In fact, the plea from several relevant
quarters that `Adminis- tration of Justice' should be treated as a `plan subject' has
not been entertained all these years. It has been so more on account of lack of
appropriate appreciation of the importance of the matter than anything also.

Sir Frederick Pollock in one of his lectures pointed out that long
indifference to the legal system and to all that goes with it is the result of many
generations of neglect in communicating to the layman some understanding of the
very ground work of the legal system under which he spends his life. Religion,
politics, art, literature--all these are taught as part of general education, but not the
fundamentals concerning the administration of law, nor the history of liberty nor
the need for public vigilance over its legal system. It is not surprise that faith and
confi- dence in the law are steadily declining and legal systems, by and Large, are
losing their base of popular support on which they must ultimately rely.

We are living in an age when all traditional institu- tions are under
scrutiny, suspicion and challenges of reas- sessment. If the current mood of
disillusionment infects the core of the law and its institutions, we may have lost
our last opportunity for the preservation of freedom under the Law. It is, therefore,
a matter for immediate attention of all concerned--and of Government in
particular--that the need is recognised and the Administration of Justice is made a
plain subject and given appropriate attention. It is true that the number of High

90
Courts compared to 1950 has increased in later years. It is also true that the Judge
strength has been increased. It is, however, equally true that the enhancement has
not been commensurate. After a lot of exercise, per year disposal per Judge of
main cases has been fixed at 650. If this be the basis, perhaps no High Court in
India excepting that for Sikkim has adequate judge strength.

We gather that the Kerala High Court where the sanc- tioned
strength has been reduced by 2, has a sanctioned strength 22 while its pendency as
on 1.1. 1990 being 34,330 cases justifies a Judge strength of almost 50 on the
basis of the measure of 650 cases per Judge per year. We intend to indicate that
there was no justification for reduction of the sanctioned strength.

We are alive to the position that in S.P. Gupta's case this aspect has
been held to be not justiciable. We do not agree with the opinion expressed by the
majority on this aspect and are of the opinion that that aspect requires
reconsideration. For the present we suggest to Government that the matter should
be reviewed from time to time and steps should be taken for determining the
sanctioned strength in a pragmatic way on the basis of the existing need. If there
be no correlation between the need and the sanctioned strength and the provision
of judge-manpower is totally inadequate, the necessary consequence has to be
backlog and sluggish enforcement of the Rule of Law.

III Another reason directly contributing to backlog and its increase

is the non-filling up of the sanctioned vacancies. Under the traditional process
followed the matter, steps for filling up of vacancies have been initiated by the
Chief Justice of the High Court six months in advance of the occurrence of the
vacancy. The date of retirement of a Judge is known on the date he enters office
unless vacancy is caused by resignation, removal by impeachment or death. Apart
from these eventualities, the date of vacancy in the post being known for years
before there can really be no justifiable excuse for inaction in the initiation of
steps for filling up the vacancy well in advance of its actual occurrance. The
existing scheme of appointment involves a process of consultation with the Chief

91
Justice, the Governor of the State, the Chief Justice of India before the Presi- dent
of India makes the appointment. The involvement of the Governor brings in the
Chief Minister and Presidential action involves the Central Government. If,
however, every functionary associated with the process remains cognisant of the
constitutional obligation involved in the matter we see no justification as to why
for selection of the incumbent more than 3 to 4 months should be necessary. The
system should be so perfect and smooth that with the retirement of one Judge his
successor should be ready to step in and by this process not a day's judge strength
should be lost to a High Court.

The word "consultation" is used in the constitutional provision in

recognition of the status of the high constitu- tional dignitary who formally
expresses the result of the institutional process leading to the appointment of
judges. To limit that expression to its literal limitations, shorn of its constitutional
background and purpose, is to borrow Justice Frankfurther's phrase, "to stick in
the bark of words".

Judicial Review is a part of the basic constitutional structure and

one of the basic features of the essential Indian Constitutional policy. This
essential constitutional doctrine does not by itself justify or necessitate any
primacy to the executive wing on the ground of its political accountability to the
electorate. On the contrary what is necessary is an interpretation sustaining the
strength and vitality of Judicial Review. It might under certain circum- stances be
said that Government is not bound to appoint a judge so recommended by the
judicial wing. But to contem- plate a power for the executive to appoint a person
despite his being disapproved or not recommended by the Chief Jus- tice of the
State and the Chief Justice of India would be wholly inappropriate and would
constitute an arbitrary exercise of power. Then-again, whatever there might be
difference of opinion between the Chief Justice of a State and the Chief Justice of
India some of the weighty reasons in this behalf are set out by the other three
judges in their opinion the opinion of the Chief Justice of India should have the
preponderant role. We are of the view that the primacy of the Chief Justice of

92
India in the process of selection would improve the quality of selection. The pur-
pose of the `consultation' is to safeguard the accountability of the judiciary and to
ensure selection of proper persons. The matter is not, therefore, to be considered
that the final say is the exclusive prorogative of the executive Government. The
recommendations of the appropriate constitu- tional functionaries from the
judicial organ of the State has an equally important rule. "Consultation" should
have sinews to achieve the constitutional purpose and should not be rendered
sterile by a literal interpretation. Who is able to decide the qualities of lawyers
proposed to be elevated to the Bench more than the Judges of the Superior Courts
before whom they practice? There are preponderant and com- pelling
considerations why the views of the Chief Justices of the States and that of the
Chief Justice of India should be afforded a decisive import unless the executive
has some material in its possession which may indicate that the appointment is
otherwise undesirable.

The view which the four learned Judges shared, in Gup- ta's case,
in our opinion, does not recognise the special and pivotal position of
the .institution of the Chief Jus- tice of India.

The correctness of the opinion of the majority in S.P. Gupta's case

relating to the status and importance of con- sultation, the primacy of the position
the Chief Justice of India and the view that the fixation of Judge strength is not
justiciable should be re-considered by a larger bench. Indeed, the Union
Government has quite often both before the Parliament and outside has stated that
it has, as matter of policy, not made any appointments to the superior judici- ary
without the name being cleared by the Chief Justice of India. This, indeed, would
be the application of a standard of selection higher than envisaged by the majority
opinion in S.P. Gupta's case. But if the executive sets up a stand- ard by which it
professes its actions to be judged it must be held to those standards. This is to be
done by a judicial recognition of the standard with a concomitant legal and
constitutional obligation for the executive to adopt and apply the standard.

93
 As we have already pointed out, the bulk of the vacan- cies in the
High Courts have been filled up. Apart from two vacancies all other Judges in the
Supreme Court are in position. Learned Attorney General has assured us that
prompt steps are being taken to fill up the remaining vacan- cies and thereafter it
will take steps to fill up the addi- tional posts which have recently been created in
the differ- ent High Courts. In view of what we have already stated and the
assurance held out by the learned Attorney General we are of the view that further
monitoring for the time being is not necessary.

As already pointed out the petition from Bombay was confined to

filling up of vacancies in the Bombay High Court. Excepting two, the remaining
vacancies have been filled up and we have been told that steps are afoot for
getting two Judges to the Bombay High Court. We, therefore, dispose of the writ
petition from Bombay with no further direction. Similarly, the writ application
filed by Subhash Sharma for the reasons indicated above may also be disposed of
without further directions. As and when necessary the matter can be brought
before the Court. As in our opinion the correctness of the majority view in S.P.
Gupta's case should be considered by a larger Bench we direct the papers of W.P.
No. 1303 of 1987 to be placed before the learned Chief Justice for constituting a
Bench of nine Judges to examine the two questions we have referred to above,
namely, the position of the Chief Justice of India with reference to primacy and,
secondly, justiciability of fixation of Judge strength. We are aware of the position.
that the setting up of the National Judicial Commission through a Constitutional
Amend- ment is in contemplation. In the event of the Amendment being carried
and a National Judicial Commission being set up, the correctness of the ratio
in S.P. Gupta's case of the status of the Chief Justice of India may not be necessary
to be examined in the view of the fact that by the Amendment the Chief Justice of
India would become the Chairman of the Commission. In case the Commission is
not constituted, the two questions indicated above which are of vital importance to
the efficient functioning of the judicial system in the country require consideration
and there is an element of immediacy in the matter. We, therefore, suggest that the

94
writ petition on the two issues indicated above maybe taken up for hearing at an
early date and preferably before the end of this year. We hope and trust that the
Supreme Court Advocate-on-Record Association would continue to evince interest
in the matter but if our expectations are belied, this being in the nature of a public
interest litigation, some on interested in the restitution of the issues would be
brought on record to effectively continue the proceeding and assist the Court.

We clarify that apart from the two questions which we have

indicated, all other aspects dealt with by us are intended to be final by our present
order. There shall be no order for costs.

Case – 7: M. Krishna Swami vs Union Of India & Ors on 27 August, 1992:

Equivalent citations: AIR 1993 SUPREME COURT 1407, 1992 (4) SCC 605,
(1992) 4 SCR 53 (SC), 1993 (1) UJ (SC) 314, (1992) 5 JT 92 (SC), (1992) 3
SCJ 599, (1992) 7 SERVLR 547

Petitioner Raj Kanwar (in Writ Petition No. 140 of 1992) alleges
that the notice of motion by 108 members of the Ninth Lok Sabha, its admission
by the then Speaker of Lok Sabha and constitution of the Inquiry Committee
under S.3(2) of the Judges (Inquiry) Act, 1968 are unconstitutional being violative
of Art. 124(4) of the Constitution. It is also asserted in that Writ Petition that the
judgment in Sub-Committee on Judicial Accountability is violative of Art.
145(3) of the Constitution and hence void ab initio.

In Writ Petition No. 149 of 1992, the petitioner M. Krishna Swami

claims sufficient interest to file the writ petition as a member of the Tenth Lok
Sabha and as an advocate of Madras known to Mr. Justice V. Ramaswami for
long. In this petition, it is alleged that certain illegalities in the procedure adopted
by the Inquiry Committee prejudicial to Mr. Justice V. Ramaswami have rendered
the inquiry invalid. On the basis of the illegalities in procedure, alleged in the
petition, the relief sought is for quashing the proceedings of the Committee as
invalid. This is the alternative prayer in the petition while the primary relief
claimed in the petition is substantially the same as in the other petition to quash

95
the notice of motion admitted by the Speaker of the Ninth Lok Sabha and the
charges framed by the Committee against Mr. Justice V. Ramaswami. Another
prayer made to hold that the Inquiry Committee is disqualified to conduct the
inquiry was given up at the hearing by Shri Sibal accepting the position that the
allegation of bias against the Committee could be examined only at the instance of
Mr. Justice V. Ramaswami who is not even a party in either of these two writ
petitions. In substance, the primary relief claimed in both these writ petitions is for
reconsideration of the earlier Constitution Bench decision in Sub-Committee on
Judicial Accountability, (1991 AIR SCW 3049) and for accepting the view
expressly rejected in the majority opinion therein. In Writ Petition No. 149 of
1992, the alternative prayer for quashing the proceedings of the Inquiry
Committee on the ground of illegality in the procedure adopted by it for
conducting the inquiry is alleged to be based on the decision in Sub- Committee
on Judicial Accountability which held that the proceeding relating to inquiry
conducted by the Committee is statutory in nature subject to judicial review.

Subsequently, on conclusion of the investigation by the Inquiry

Committee, Smt. Sarojini Ramaswami, wife of Mr. Justice V. Ramaswami, filed
Writ Petition No. 514 of 1992 (reported in 1992 AIR SCW 2683), praying for a
direction to the Inquiry Committee to supply a copy of its report to Mr. Justice V.
Ramaswami before submitting it to the Speaker under S. 4(2) of the Judges
(Inquiry) Act, 1968 to enable the learned Judge to seek judicial review of the
finding of 'guilty', if any, against him made in the report of the Committee. We
have disposed of that writ petition by a separate judgment pronounced earlier
today. We are, therefore, confining the decision of these petitions only to the
points raised herein which survive for decision.

We had concluded the hearing of these writ petitions before the

hearing was commenced in Writ Petition No. 514 of 1992, but at the request of
Shri Kapil Sibal, senior counsel appearing for the petitioner in Writ Petition No.
149 as well as in Writ Petition No. 514, we deferred the decision in these writ
petitions till now. In Writ Petition No. 149, we have heard Shri Kapil Sibal for the

96
petitioner, the Attorney General of India for the Union of India and Shri F. S.
Nariman for the Inquiry Committee. In addition, we have also heard Shri Shanti
Bhushan and Shri Jitendra Sharma who represented the interveners viz. Sub-
Committee on Judicial Accountability and Supreme Court Bar Association. Raj
Kanwar, petitioner in Writ Petition No. 140 of 1992 was directed to file the
written submissions which have been considered by us. We considered it
unnecessary to hear petitioner Raj Kanwar orally also in addition to his written
submissions since his case is the same which was urged by Shri Kapil Sibal as one
of his contentions and to some extent advanced also by the Attorney General of
India. The constraint of time because of which the hearing in these matters was
required to be concluded early impelled us to adopt this course, particularly on
account of the fact that Writ Petition No. 140 of 1992 was tagged on to Writ
Petition No. 149 to be heard along with Writ Petition No. 149 of 1992 which was
treated as the main matter by order dated 23-3-1992.

When the hearing commenced before us, the question of

maintainability of these writ petitions for the reliefs claimed herein in the absence
of Mr. Justice V. Ramaswami and tenability of the plea of reconsideration of the
earlier decision at the instance of these petitioners who were not parties thereto
and are not directly affected thereby arose for consideration. On 6-5-1992 after
Shri Kapil Sibal, learned senior counsel for the petitioner had been heard for some
time on the preliminary question relating to maintainability of the petition, he
sought time 'to consider further whether the petitioner should move an application
for impleading Mr. Justice V. Ramaswami as a party'. The matters were adjourned
to the next day at the request of Shri Sibal. On 7-5-1992, Shri Sibal informed us
that the petitioner does not want to implead Mr. Justice V. Ramaswami as a party
and that he had decided to pursue the writ petition as framed in its present form. In
the other writ petition (W.P. No. 140) also, Mr. Justice V. Ramaswami is not a
party and the. petitioner's stand is the same; and, therefore, the question of
maintainability of these writ petitions for the reliefs claimed herein in the absence
of Mr. Justice V. Ramaswami as party is common to both of them. These matters

97
were, therefore, heard on the question of maintainability indicating that in case
these petitions are held to be maintainable for the reliefs claimed herein in the
absence of Mr. Justice V. Ramaswami as a party, then the matters may be heard
further on merits.

We have reached the conclusion that both these petitions must be

dismissed on this preliminary ground and, therefore, the question of hearing these
petitions further does not arise.

In view of the fact that the petitioners in both these writ petitions
have persisted in pursuing the writ petitions without impleading Mr. Justice V.
Ramaswami as a party, in spite of ample opportunity given by us for the purpose
at the commencement of the hearing and even thereafter till its conclusion, there is
now no question of giving any further opportunity to the petitioners for this
purpose. Shri Sibal took the definite stand on instructions of the petitioner that Mr.
Justice V. Ramaswami would not be impleaded as a party in the writ petition and
that the Court itself may give him notice if it so desires. We do not find any reason
why the Court should suo motu issue notice to Mr. Justice V. Ramaswami when
the petitioner persisted in not impleading him even though the reliefs claimed are
for the benefit of the learned Judge alone. Even otherwise we do not consider it
appropriate to examine any of the questions raised in these petitions at the
instance of these petitioners in view of our decision in Writ Petition No. 514 of
1992 (reported in 1992 AIR SCW 2683), the learned Judge himself having not
chosen to do so.

We have dealt with this aspect at some length and also referred to
the decision in S. P. Gupta since in the present context it has become necessary to
reiterate the same to disabuse the mind of persons, like Raj Kanwar, who insist
that they have such a right in the abstract. Petitioner Raj Kanwar could have
served the public interest better if he had assisted Shri Kapil Sibal in the main
petition, assuming he had something additional to say. The assertion of petitioner
Raj Kanwar that he has any such right in the abstract is misconceived.

98
 Even though the hearing in these petitions had concluded before we
heard Writ Petition No. 514 of 1992 (reported in 1992 AIR SCW 2683), yet we
deferred the decision of these writ petitions till now on the express request made
by Shri Kapil Sibal not to decide these matters before deciding Writ Petition No.
514 of 1992.

We add that on a reconsideration of the matter in the light of the

exposition of law made by Brother K. Ramaswamy in his separate opinion
circulated to us, we regret our inability to concur with him in the area of his
disagreement. On the points decided by us, leaving open the points which do not
arise at this stage for our consideration for the reasons we have given, preferring
to follow the salutary practice of not deciding any question, much less a
constitutional one, unless it is necessary to do so, we would prefer to reserve our
opinion on the remaining questions for the occasion, if any, in the future when
they arise for decision.

For the aforesaid reasons, both these writ petitions fail and are
dismissed on the above preliminary grounds without going into the points raised
on merits herein which do not arise for consideration at the instance of the
petitioners at this stage on the conclusion we have reached. In view of our
conclusion to dismiss these writ petitions, it is unnecessary to decide the pending
I.As., including those for impleadment, which are accordingly disposed of. No
costs.

In Encylopedic Law Dictionary, 3rd Edition, at p. 720

'misbehaviour' was defined as "improper or unlawful conduct, generally applied to
a breach of duty or propriety by an officer, witness, etc. not amounting to a crime.
P. Ramanathan Aiyar's 'The Law Lexicon, Reprint Edition, 1987 defines
'misbehaviour' at p. 820 as "ill conduct; improper or unlawful behaviour.
'Misconduct' was defined at p. 821 as "the term "misconduct' implies a wrongful
intention, and not a mere error of judgment. Misconduct is not necessarily the
same thing as conduct involving moral turpitude". The word 'misconduct' is a

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relative term, and 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 statute
which is being construed. 'Misconduct' literally means wrong conduct or improper
conduct", 'Misconduct in office' was defined as "unlawful behaviour or neglect by
a public officer, by which the rights of a party have been affected ".

Every act or conduct or even error of judgment or negligent acts by

higher judiciary per se does not amount to misbehaviour. Wilful abuse of judicial
office, wilful misconduct in the office, corruption, lack of integrity, or any other
offence involving moral turpitude would be misbehaviour. Misconduct implies
actuation of some degree of mens rea by the doer. Judicial finding of guilt of grave
crime is misconduct. Persistent failure to perform the judicial duties of the judge
or wilful abuse of the office dolus malus would be misbehaviour. Misbehaviour
would extend to conduct of the Judge in or beyond the execution of judicial office.
Even administrative actions or omissions too need accompaniment of mens rea.
The holder of the 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. The
failing moral or ethical standards in the society are no ruse nor refuse to slacken
the higher standards of judicial conduct. The society, therefore, is entitled to
expect higher degree of propriety and probity in the judicial conduct from higher
judiciary. There cannot be any fixed or set principles, but an unwritten code of
conduct of well established traditions are the guidelines for judicial conduct, The
conduct that tends of undermine the public confidence in the character, integrity
and impartiality of the judge must be eschewed. It is expected of him to
voluntarily setting forth wholesome standards of conduct reaffirming fitness to
higher responsibilities. Even the private life of a judge must adhere to standards of
probity and propriety, acceptable to others. They alone would receive confidence
and respect from the public. This legal setting would furnish the foundation to
focus the question whether the learned Judge had committed financial
improprieties or irregularities undermining the above standards in his

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administrative disposition and whether would constitute misbehaviour is to be
angulated and findings given from the proven evidence by the Committee. Such
finding of proved misbehaviour would undoubtedly be subject to requisite
majority voting and when voted would become "deemed proof under S. 6(3)" for
removal under Art. 124(4). Then alone can the finding of proved misbehaviour be
deemed accepted and would become final. If the motion is voted down, by
necessary implication, the finding of the committee stands disproved and rejected.

We are alive to the fact that declaration of law would be laid only
to apply it to the facts of the case on hand for or not granting the relief. The facts
of the case presented an extraordinary scenario. The Constitution or the Act did
not define 'misbehaviour'. Several International forums for judicial independence
suggested to define misbehaviour but to no avail. No legislature in any democratic
country attempted to do so as it would appear to be difficult to give a
comprehensive definition to meet myriad situations. The scope of judicial review
after the committee records findings that the misbehaviour has been proved would
appear to be fraught with imponderables. The occasion for judicial review would
scarcely arise. There are no set rules of conduct. The law laid by this Court
under Article 141 of the Constitution is the law of the land. Under these diverse
circumstantial constraints I undertook to survey and declare the law and left it for
its application by the committee to the proved facts.

Though Sri Sibal, attempted to argue on the grounds of violation of

the principles of natural justice for non-supply of needed documents etc., I refrain
to go into the diverse questions. Firstly, the reliefs sought are personal in nature to
the learned Judge. He alone should seek and none else be permitted to assail. In a
proceeding of this or the like or of departmental enquiry or in criminal matters no
one except the person aggrieved is entitled to ventilate the grievances regarding
the legality, propriety, correctness or otherwise of the charges, the procedure the
Committee adopted or the findings recorded therein. If the law permits suo motu
or inherent exercise of power and the facts warrant exercise of the power, it would
be open to the court tribunal in an appropriate case, to do public justice to correct

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the same. Secondly, investigation has since been completed and the report is
ready, I am sure the learned members with their rich and variegated experience,
must have subjected the evidence to the same standard of consideration and
reached at their findings. Even if. otherwise a fresh look in this light, if need be,
may not be surplusage but assuages an reassurance of the confidence. So it is for
the Committee to look into and if need be afresh. This Court cannot trench into
that area. If the findings are positive they would be subject to political process of
discussion on the floor of each House of Parliament and resolution per majority.

The writ petition is accordingly allowed to the extent of the above

declarations and we direct the Registrar General to address a letter to the
Committee with a request to exclude the entire adverse evidence or record against
the learned Judge placed either by M/s. George Fernandez, Jaswant Singh or the
Sub Committee on Judicial Accountability, except the one part of the record sent
by the Speaker. In other respects, subject to the above declaration of law the writ
petition stand dismissed. But in the circumstances, without costs. This Writ
Petition is dismissed in accordance with the majority opinion.

Summary – Here in the chapter – 5 we have studied various

judicial trends that are based on the judicial accountability and appointment.

In the next chapter – 6 we will conclude the conclusion and will

also make some recommendations to improve the mechanism.

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 CHAPTER – 6

CONCLUSION AND RECOMMENDATIONS

6.1 Conclusion

Expansive reforms are necessary in current judicial system. As

judges do commit misdeeds which take the form of corruption, biases etc. So in
order to have an independent judiciary such malice should be corrected, otherwise
the accountability would be at stake. But how to do it, it is of prime importance if
Executive or Legislature will do it Judiciary will be under a constant pressure. An
independent commission to investigate the charges and awarding punishment and
to take appropriate measures as per 80th Report and 121st Report of Law
Commission of India. Judicial accountability depends upon the public acceptance
of the judiciary being a fair, just and honest institution.

Judicial accountability and good judicial conduct goes hand in

hand towards the effective working of the judiciary and maintenance of rule of
law. Employ more judges and create more courts to handle the problem of
pendency of cases. Increase the number of working hours and working days for all
courts, this single measure can dramatically reduce backlog. Incentivise to judges
to deliver quality judgements and a mutually agreed number of judgments in a
certain period.

Hon‟ble Mr. Justice S. H. Kapadia, chief justice of India said,

“When we talk about ethics, the judges normally comment upon ethics among
politicians, students and professors and others.

But I would say that for judge too, ethics, not only constitutional
morality but even ethical morality, should be the base ” “These days we (judges)
are telling everyone what they should do but who is to tell us? We have talk of
enforcing the rule of law, but does not exempt and even exonerate us from
following it”.

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Code of Ethics of a Judge

1. Judicial decision to be honest: the judge‟s life is full of public confidence

in their role in society; the judicial decision is to be honest and fair. No
judicial decision is honest unless it is decided in response to an honest
opinion formed in the matrix of the judge‟s proficient of law and fact.
Nevertheless the perception of a judge may be wrong. But a wrong
decision honestly made does not make that decision dishonest. A decision
becomes dishonest if not decided on judicial conviction of fairness, honest
and neutrality.
2. No man can be judge in his own cause: The principle not applies only to
the cause where the judge is an actual party to a case, but also applies to a
case in which he has interest. A judge should not adjudicate in a case if he
has got interest therein. Judges must remain impartial and should be also
known by all people to be impartial.
3. Administer Justice: Judges must not fear to administer justice. “flatjustitia,
ruatcaelum” that is “let justice be done though heaven fall” should be
followed as motto by a judge.
4. Equal opportunity: Parties to the dispute be treated equally and accordance
with the principles of law and equity. A judge does not belong to any
person or section or division or group. A judge should not have any
concern with personalities who are parties to the case but only with merits.
“it is essential to the proper administration of justice that every party
should have equal opportunity of being heard, so that he may put forward
his own views and support them by argument and answer the views put
forward by his opponents”.
5. Maintenance of distance from relatives: Since judging is not a profession
but a way of life, the judge must keep distance himself from the parties to
the dispute and their lawyers during the conduct of trial. Now a days the
growth of a new caste in legal profession who thrive not by intellectuals or
professional capabilities but by utilizing their close connection with the

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 judges. The growth of this suspicious trend can be checked if practicing
lawyers and sitting judges avoid meeting frequently in private.
6. Too much of activity and participation in social functions be avoided: The
Supreme Court in Ram pratap Sharma Vs. Dayanand issued a note of
caution to the effect that it is proper for a judge not to accept any invitation
and hospitality of any business or commercial organization or of any
political party or of any club or organisation run on sectarian, communal
or parochial line. As a considerable amount of ordinary social activity, a
judge may become identified with people and points of view, and litigants
may think they may not get fair trial.
7. Media Publicity shall be avoided: As far as possible a Judge should keep
off the media. Lord Widgery, Lord Chief justice of England since 1971 to
England since 1971 to 1980, said that “the best judge is the man who
should not court publicity and should work in such a way that they don‟t
catch the eyes of the newsmen”. Most of the problem of judicial stagnation
stems from inadequate incentives and overly complicated procedures.
This is thought of around the world that judicial inefficiency is not only
bad for litigants, legal system; it is also bad for economic prosperity,
undercutting a national wealth and economic growth.
8. Appointment of judges: In European Union, judges are elevated to the
higher judiciary on pure concrete basis of merit, not on political or judicial
consideration. They look to the quality of decision rendered and past
records of the judge. In India appointment and rejection should be made
public. Constitutional provision should be amended for attainment of
democratic, transparent and foolproof method of appointment, removal
and transfer of judges.
9. Contempt of Court Act : One and foremost task should be to amend the
contempt of Court Act, 1972. Because wide powers are being conferred
upon the courts vide contempt of court Act. Even today we are following
the age old colonial system of deciding contemptuous act. The law of

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 contempt in India has deviated from its very object. So definition of
contempt shall confine within the four corners of statutory definition.

6.2 Recommendations

1. Reduce Case Backlogs: The Indian judicial system has a large number of
pending cases, which can lead to delays in justice delivery. There is a need
to improve the efficiency of courts, increase the number of judges and
support staff, and explore the use of technology to help expedite the
process.

Enhance Judicial Infrastructure: There is a need to invest in judicial

infrastructure, including the construction of new courts, the modernization
of existing facilities, and the deployment of technology to help streamline
processes.

2. Increase in Judicial Accountability: The Indian judiciary is known for its

accountability, but there is a need to increase accountability. One way to
do this is to establish a system for monitoring judges' performance,
including regular evaluations and assessments.

3. Strengthen Legal Education: Improving the quality of legal education can

help produce better lawyers, judges, and legal professionals. This includes
updating the curriculum, improving teaching methods, and increasing
funding for legal education.

Strengthen Legal Education: Improving the quality of legal education can

help produce better lawyers, judges, and legal professionals. This includes
updating the curriculum, improving teaching methods, and increasing
funding for legal education.

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4. Explore Alternative Dispute Resolution Mechanisms: Traditional court
systems can be slow and expensive, and there is a need to explore
alternative dispute resolution mechanisms such as arbitration, mediation,
and conciliation. This can help reduce the burden on courts and provide
faster resolution to disputes.

5. Improve Access to Justice: Access to justice is a critical issue in India,

particularly for marginalized communities. There is a need to increase
legal aid, provide legal services in local languages, and increase awareness
of legal rights and entitlements.

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 BIBLIOGRAPHY

Books

1. Professional Ethics, Accountancy For Lawyers And Bench Bar Relation by

Dr. S.R. Myneni
2. Appointing Our Judges–Forging Independence And Accountability-
Essays On Judicial Appointments And An Analysis Of The Njac
Judgment by Santosh Paul

Websites

1. www.google.com
2. www.wikipedia.com
3. www.indiankanoon.org
4. www.papers.ssrn.com
5. www.thelawbrigade.com

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5. Hegde, Sanjay (19 October 2015). "Judging the Judge-Maker". The Hindu.
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