C. RAVICHANDRAN IYERversusJUSTICE A.M. BHATTACHARJEE

                      C. RAVICHANDRAN IYER                                      A
                                     v.
                  JUSTICE A.M. BHATTACHARJEE

                          SEPTEMBER 5, 1995

            [K. RAMASWAMY AND B.L. HANSARIA, JJ]                                B

      Constitution of India-A1ticles 124(4) and 121-Impeachment-Judi-
cial misconduct-Removal of a Judge on proved misbehaviour or in-
capacity-Word 'misbehaviour'-Scope and meaning-Bad conduct or bad
behaviour of a Judg&-Role of Bar Council or Bar Associations-Plimacy of C
Chief Justice of India-Self regulation by judiciary.

     Rule of Law-Independence of Judicia1y-Judicial individualism-
Duty of Judge to maintain high standard of conduct-Freedom of expression
and duty of advocate-Contempt of cowt.
                                                                                D
       The petitioner, a practising advocate, initiated a public interest
litigation under Article 32 of the Constitution seeking to issue an ap-
propriate writ, order or direction restraining the Bar Council of
Maharashtra and Goa, Bombay Bar Association and the Advocates' As-
sociation of Western India, respondents 2 to 4 respectively, cQercing the
                                                                                E
1st. Respondent, Chief Justice of Bombay High Court, to resign from the
office as Judge. He sought an investigation by the Central Bureaue of
Investigation etc. into the allegation made against the 1st. respondent, and
if the same were found true, to direct the Speaker, Lok Sabha, to initiate
action for his removal under Article 124(4) and (5) read with Article 218
of the Constitution of India and Judges (Inquiry) Act, 1968. This Court         F
issued notice to respondents 2 to 4 and rejected the prayer for interim
direction to the President of India and the Union of India not to giv~ effect
to the resignation by the 1st respondent.

      The petitioner alleged that the news published in various national        G
newspapers proved that the respondents 2 to 4 had pressurised the 1st
respondent to resign from the office as Judge for his alleged misbehaviour;
that the acts and action of the respondents were unknown to law, i.e.,
removal by forced resignation, which was not only unconstitutional but
also deleterious to the independence of the Judiciary; that the accusations
against the Ist respondent without proper investigation by an independent       H
                                    319
    320                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A   agency seriously damaged the image of judiciary and efficacy of judicial
    adjudication and thereby undermined the credibility of the judicial system
    itself; that the Judges are not to be judged by the Bar and allowing
    adoption of such demands by collective pressure rudely shakes the con-          .,
    fidence and competence of Judges of integrity, ability, moral vigour and
    ethical firmness which destroyed the very foundation of democratic polity.
B
    The petitioner requested the Court to adopt such procedure which would
    safeguard the independence of the judiciary and protect the Judges from
    pressure through unconstitutional methods to demit the office.

           The respondents 2 to 4 stated that they had in their custody the
C   documents to show that the 1st respondent had negotiated with a Publish-
    ing Company of London and the acceptance by the 1st respondent for
    publication and sale abroad of a book authored by him for two years at a
    royalty US $ 80,000 and an inclusive negotiation for US $ 75,000 for
                                                                  0

    overseas publishing rights of this another book; that from ab out late 1994,
D   there was considerable agitation amongst the members of the bar that
    certain persons were bringing influence over the 1st respondent and could
    influence the course of his judgment; that the 1st respondent himself had
    discussed with the advocate General impressing upon the latter that the
    former had decided to proceed on leave and would resign in April 1995;
    that a press interview published in Times of India said to have been given
E   by the 1st respondent stating that he had not seriously checked the antece-
    dents of the Publisher and it was possible that he had made a mistake in
    accepting the offer. The Bar Council of Maharashtra and Goa passed a
    resolution seeking, resignation forthwith' of the 1st respondent, who as-
    sured the Bar that he would res(gn within a week. However, he had not
F   kept his promise. Consequently, after full discussion, for and against, an
    over whemling majority of 185 out of 207 permanent members resolved in
    the meeting demanding the resignation of the 1st respondent. It was
    contended that the Supreme Court and the High Court are two inde-
    pendent constitutional institutions and a High Court is not subordinate
    to the Supreme Court; that the constitutional process of removal of a
G   Judge as provided in Article 124(4) is only for proved misbehaviour or
    incapacity; that the Bar, being a collective voice of the court, has respon-
    sibility and owes duty to maintain independence of the judiciary and it is
    its obligation to bring it to the notice of the Judge concerned the perceived
    misbehaviour or incapacity and if it is not voluntarily corrected they have
H   to take appropriate measures to have it corrected.
                      C.R. IYER v. AM. BHATIACHARJEE                         321

          The Attorney General contended that any resolution passed by any          A
    Bar Association tentamounts to scandilising the court entailing contempt
    of the court and that it should be left to the Chief Justice of India to
    impress upon the erring Judge to correct his conduct.

           The question raised for consideration was whether any Bar Council
                                                                                    B
    or Bar Association has the right to pass resolution against the conduct of
    a Judge perceived to have committed misbehaviour and, if so, what is its
    effect on independence of the judiciary.

          Disposing of the writ petition, this Court
                                                                                    c
           HELD : 1.1. Where the complaint relates to the Judge of the High
    Court, the Chief Justice of that High Court, after verification, and if
    necessary, after confidential enquiry from his independent source, should
    satisfy himself about the truth of the imputation made by the Bar Associa-
    tion through its office bearers against the judge and consult the Chief         D
    Justice of India, where deemed necessary, by placing all the information
    with him. When the Chief Justice of India is seized of the fi!atter to avoid
    .embarrassment to him and to allow fairness in the procedure to be
    adopted in furtherance thereof, the Bar should suspend all further actions
    to enable the Chief Justice of India to appropriately deal with the matter.

-   This is necessary because any action he may take must not only be just but
    must also appear to be just to all concerned; i.e., it must not even appear
    to have been taken under pressure from any quarter. The Chief Justice of
                                                                                    E


    India, on receipt of the information from the Chief Justice of the High
    Court, after being satisfied about the correctness and truth touching the
    conduct of the Judge, may tender such advice either directly or may initiate    F
    ~uch action, as is deemed necessary or warranted under given facts and
    circumstances. If circumstances permit, it may be salutary to take the
    Judge into confidence before initiating action. On the decision being taken
    by the Chief Justice of India, the matter should rest at t~at. This procedure
    would not only facilitate nipping in the bud the conduct of a Judge leading
    to loss of public confidence in the courts and sustain public faith in the      G
    efficacy of the rule of law and respect for the judiciary, but would also
     avoid needless embarrassment of contempt proceedings against the office
    bearers of the Bar Association and group libel against all concerned. The
    independence of judiciary and the stream of public justice, would remain
    pure and unsullied. The Bar Association could remain a useful arm of the        H
                                                                                     ~-




    322                   SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.

A   judiciary and in the case of sagging reputation of the particular Judge, the
    Bar Association could take up the matter with the Chief Justice of High
    Court and await his response for the action taken thereunder for a
    reasonable period. [348-E-H; 349-A-C]

          1.2. In case the allegations are against chief Justice of a lligh Court,
B   the Bar should bring them directly to the notice of the Chief Justice of
    India. On receipt of such complaint, the Chief Justice of India would in
    the same way act as stated qua complaint against a Judge of the High
    Court, and the Bar would await for a reasonable period the response of
    the Chief Justice of India. [349-D]
c
          1.3. This Court has neither administrative control over the High
    Court nor power on the Judicial side to enquire into the misbehaviour of
    a Chief Justice or Judge of a High Court. when the Bar of the High Court
    concerned reasonably and honestly doubts the conduct of the Chief Justice
    of that court, necessarily the only authority under the· Constitution that
D   could be tapped is the Chief Justice of India, who in common parlance is
    known as the head of the judiciary of the country. Impeachment is meant
    to be a drastic remedy and needs to be used in serious cases. But there
    must exist some other means to ensure the Judges do not abuse the trust
    the society has in them. Self-regulation by the judic!ary is the only method
E   which can be tried and adopted. Chief Justice of India is the first among
    the Judges. [346-D-F]                                                            ...

          Yawning gap between proved misbehaviour and bad conduct in
    consistent with the high office on the part of a non co-operting Judge/Chief
    Justice of a High Court could be disciplined by self-regulation through
F   inhouse procedure, this inhouse procedure would fill in the constitutional .
    gap and would yield salutary effect. [349-E]

         2.1. In a democracy governed by rule of law under written constitu-
  tion, judiciary is sentinel on the qui vive to protect the fundamental rights
G and to poise even scales of justice between the citizens and the State or the
  State Inter se. Rule of law and judicial review are basic features of the
  Constitution. As its integral constitutional structure, independence of the
  judiciary is an essential attribute of rule of law. [333-D]

          2.2. The independence of judiciary is not limited only to the inde-
H pendence from the executive pressure or influence; it is a wider concept
                   C.R. IYER v. AM. BHAITACHARJEE                           323

which takes within its sweep independence from any other pressure and              A
prejudices. It has many dimensions, viz., fearlessness of other power
centres, economic or political, and freedom from prejudices acc1uired and
nourished by the class to which the judge belong. [333-H; 334-A]

      S.P. Gupta v.Union of llldia, [1981] Supp. SCC 87, relied on.
                                                                                   B
       2.3. Independent judiciary is, therefore, most essential when liberty
of citizen is in danger. It then becomes the duty of the judiciary to poise
the scales of justice unmoved by the powers (actual or perceived) undis-
turbed by the clamour of the multitude. The heart of judicial independence
is judicial individualism. The judiciary is not a disembodied abstraction.         c
It is composed of individual men and women who work primarily on their
own. [334-B]

       Stephen S.Cliand!er v. Judicial Council of the Tenth Circuit of the
Ullited States, 398 US 74:26 L.Ed. 2d HIO, relied on.                              D
        2.4. The extraordinary complexity 01 modern litigation requires a
Judge not merely to declare the rights of citizens but also to mould the
relief warranted under given facts and circumstances and often command
the executive and other agencies to enforce and give effect to the order,
writ or direction or prohibit them to do unconstitutional acts. In this on         E
going complex of adjudicatory process, the role of the Judge is not merely
to interpret the law but also to lay new norms of law and to mould the law
to suit the changing social and economic scenario to make the ideals
enshrined in the Constitution meaningful and realty. Therefore, the Judge
 is rec1uired to take judicial notice of the social and economic ramification,     F
consistent with the theory of law. Thereby, the society demands active
judicial roles which formerly were considered exceptional but now a
routine. The Judge must act independently, if he is to perform the func-
tions as expected of him and he must feel secure that such action will not
lead to his mm downfall. The independence is not assured for the Judge
but to those judged. Independence to the Judge, therefore, would be both           G
essential and proper considered judgmellt of the cowt would guarantee the
constitutional libe1ties which would tluivc only ill all atmo.5phere of judicial
independence. Every endeavour should be made to preserve independent
judiciary as a citadel of public justice and public security to fulfil the
constitutional role assigned to the Judges. [336-B-E]                              H
    324                    SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.

A          3.1. Judicial office is essentially a public trust. Society is, therefore,
    entitled to expect that a Judge must be a man of high integrity, honesty
    and required to have moral vigour, ethical firmness and impervious to
    corrupt or venial influences. He is ret1uired to keep most exacting stand-
    ards of propriety in judicial conduct. Any conduct which tends to under-
    mine public confidence in the integrity and impartiality of the court would
B   be deleterious to the efficacy of judicial process. Society, therefore, expects
    higher standards of conduct and rectitude from a Judge. Unwritten code
    of conduct is writ large for judicil;ll officers to emulate and imbibe high
    moral or ethical standards expected of a higher judicial functionary, as
    wholesome standard of conduct which would generate public confidence,
c   accord dignity to the judicial and enhance public image, not only of the
    Judge but the court itself. It is, therefore, a basic requirement that a
    Judge's official and personal c!mduct be free from impropriety; the same
    must be in tune with the highest standard of propriety and probity. The
    standard of conduct is higher than expected of a layman and also higher
D   than expected of an advocate. In fact, even his private life must adhere to
    high standards of probity and propriety, higher than those deemed accept-
    able for others. Therefore, the Judge c~_i:i._ill-afford to seek shelter from the
    fallen standard in the society. [338-G-H; 339-A-C]


E         3.2. The founding fathers of the Constitution advisedly adopted
    cumbersome process of impeachment as a mode to remove a Judge from
    office for only proved misbehaviour or incapacity which implies that
    impeachment process is not available for minor abrasive behaviour of a
    Judge. It reinforces that independence to the Judge is of paramount
    importance to sustain, strengthen and elongate rule of law. Parliament
F   sparingly resorts to the mechanism of impeachment designed under the
    Constitution by political process as the extreme measure only upon a
    finding of proved misbehaviour or incapacity recorded by a committee
    constituted under section 3 of the Act by way of address to the President
    in the manner laid down in Article 124 (4) and (5) of the Constitution, the
G   Act and the rules made thereunder. [336-F-H]


          3.3. Our Constitution permits removal of the Judges only when the
    motion is carried out with requisite majority of both the houses of the
    parliament recommending to the President for removal. The Constitution
H   does not permit any action by any other agency. [337-G]
                  C.R. IYER v. A.M. BHATIACHARJEE                       325

      3.4. Articles 124(4) and 121 would thus put nail SCJuarely on the A
projections, prosecutions or attempts by any other forum or group of
individuals or associations, statutory or otherwise, either to investigate or
inquire into or discuss the condition of a Judge or the performance of his
duties ond on/off court behaviour except as per the procedure provided
under Articles 124(4) and (5) of the Constitution, the Act and the Rules.
                                                                              B
Thereby, equally no other agency or authority like the C.B.I., Ministry of
Defence, the Reserve Bank of India (respondents Nos. 8 to 10) as sought
for by the petitioner, could investigate into the conduct or acts or actions
of a Judge. No mandamus or direction would be issued to the Speaker of
Lok Sabha or Chairman of Rajya Sabha to initiate action for impeach-
ment. (338-C-D]                                                               c
       3.5. Article 124(4) of the Constitution sanctions action for removal
of a Judge on proved misbehaviour or incapacity. The word 'misbehaviour"
was not advisedly defined. It is vague and elastic word and embraces within
its sweep different facets of conduct as opposed to good conduct. Literally, D
it means wrong conduct or improper conduct. It has to be construed with.
reference to the subject matter and the context wherein the term occurs
having regard to the scope of the Act or the statute under consideration.
                                                                  [340-B-C]
      4.1. Article 121 of the Constitution prohibits discussion by the mem-
bers of the Parliament of the conduct of any Judge of the Supreme Court
                                                                               E
or of High Court in the discharge of his duties, except upon a motion for
presenting an address to the president praying for the removal of the
Judge as proved under Articles 124 (4) and (5) and in the manner laid
down under the Act, the Rules and the Rules of Business of the Parliament
umsistent therewith. By necessary implication, no other forum or fora or       F
platform is available for discussion of the conduct of a Judge in the
discharge of his duties as a Judge of the Supreme Court or the High Court,
much less a Bar Council or group of practising advocates. They are
prohibited to discuss the conduct of a Judge in the discharge of his duties
or to pass any resolution in that behalf. [342-E-F]                            G
     · 4.2. Guarantee of tenure and its protection by the Constitution would
not, however, accord sanctuary for corruption or grave misbehaviour. ):'et
every action or omission by a judicial officer in the performance of his
duties, which is not good necessarily, may not be misbehaviour indictable
by impeachment, but its insidious effect may be pervasive and may produce      H
    326                    SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A   deleterious effect on the integrity and impartiality of the Judge. Every
    m\sbehaviour in juxtaposition to good behaviour, as a constitutional
    tautology, will not support impeachment but a misbehaviour which is not
    a good behaviour may be improper conduct not befitting to the standard
    expected of a Judge. Threat of impeachment process itself may swerve a
    Judge to fall prey to misconduct but it serves disgrace to use impeachment
B
    process for minor offences or abrasive conduct on the part of a Judge. The
    bad behaviour of one Judge has a rippling effect on the reputation of the
    judiciary as built heavily on public confidence and respect, the damage by
    an obstinate Judge would rip apart the entire judicial structure built in
    the Constitution. [341-C-E]
c
          4.3. Bad Conduct or bad behaviour of a Judge, therefore, needs
    correction to prevent erosion of public confidence in the efficacy of judicial
    process or dignity of the institution or credibility to the judicial office held
    by the obstinate Judge, when the Judge cannot be removed by impeachment
D   process for such conduct but generates widespread feeling of dissatisfac-
    tion among the general public, the haitus between bad behaviour and
    impeachable misbehaviour needs to be filled in to stem erosion of public
    confidence in the efficacy of judicial process. [341-F-G; HJ

           4.4. The nation's interest requires that criticism of the judiciary must
E   be measured, strictly rational, sobre and proceed from the highest motives
    without being coloured by partisan spirit or pressure tactics or in-
    timidatory attitude. The Court must, therefore, harmonise constitutional


p
    values of free criticism and the need for a fearless curial process and its
    presiding functionary, the Judge. If freedom of expression subserves public
    interest in reasonable measure, public justice cannot gag it or manacle it;
                                                                                       -
    but if the court considers the attack on the Judge or Judges scrurrilous,
    offensive, intimidatory or malicious, beyond condonable limits, the strong
    arm of the law must strike a blow on him who challenges the supremacy
    of the rule of the law by fouling its source and stream. The power to punish
    the contemner is, therefore, granted to the court, not because Judges need
G   the protection, but because the citizens need an impartial and strong
    judiciary. [344-H; 345-A-C]

         4.5. Scurrilous abuse of a Judge or court, or attack on the personal
    character of a Judge, are punishable contempts. Punishment is inflicted,
H   not for the purpose of protecting either the court as a whole or the
                   C.R. IYER v. AM. BHATIACHARJEE                         327

individual Judges of the court from repetition of the a.ttack, but for           A
protecting the public, and especially who either voluntarily or by compul-
sion are subject to the jurisdiction of the court, from the mischief they will
incur if the authority of the tribunal is undermined or impaired. In
consequence, the court has regarded with particular seriousness allega-
tions of partiality or bias on the part of a Judge of a court. Criticism of a
                                                                                 B
Judge's conduct or of the conduct of a court, even if strongly worded, is,
however, not contempt, provided that the criticism is fair, temperate and
made in good faith and is not directed to the personal character of a Judge
or to the impartiality of a Judge or court. [343-B-D]

      Brahma Prakash Shanna & Ors. v. State of Uttar Pradesh AIR (1954)          c
SC 10 and Chokolingo v. AG of Trinidad & Tobaqo, [1981) 1 All ER 244,
relied on.

     CJ. Miller, Contempt of Cowt (2nd Edn.) and Borrie & Lowe, Law
of Contempt (2nd Edu.), referred to.
                                                                                 D
        CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 162 of
1995.

        (Under Article 32 of the Constitution of India.)

     C. Ravichandran Iyer-in-Person, Milon Kr. Banerjee, Attorney                E
General of India, and S.N. Terdol for the Petitioner.

        V.N. Ganpule, and V.B. Joshi for the Respondent No. 2

     F.S. Nariman, Dariyar Khambatta, R.N. Karanjawala, P.K. Mullick
and Ms. Manik Karanjawala for the Respondent NO. 3                               F
        Harish N. Salve AM. Khanwilkar for the Respondent No. 4.

     M.N. Krishnamani, for the S.C. Bar Association M.P. Vashi for the
Bar Council of Maharashtra.
                                                                                 G
        The Judgment of the Court was delivered by

       K. RAMASWAMY, J. The petitioner, a practising advocate, has
initiated the public interest litigation under Article 32 of the Constitution
seeking to issue an appropriate writ, order or direction restraining per-
manently the Bar Council of Maharashtra and Goa (BCMG), Bombay Bar H
    328                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A   Association (BBA) and the Advocates' Association of Western India
    (AAWI), respondents 2 to 4 respectively, coercing Justice A.M. Bhat-
    tacharjee [the 1st respondent], Chief Justice of Bombay High Court, to
    resign from the office as Judge. He also sought an investigation by the
    Central Bureau of Investigation etc. (respondents 8 to 10) into the allega-
    tions made against the 1st respondent and if the same are found true, to
B   direct the 5th respondent, Speaker Lok Sabha to initiate action for his
    removal under Article 124 (4) and (5) read with Article 218 of the Con-
    stitution oflndia and Judges (Inquiry) Act, 1968 (for short, 'the Act'). This
    Court on March 24, 1995 issued notice to respondents 2 to 4 only and
    rejected the prayer for interim direction to the President of India and the
    Union of India (respondents 6 and 7 respectively) not to give effect to the
c   resignation by the 1st respondent. We have also issued notice to the
    Attorney General for India and the President of the Supreme Court Bar
    Association (SCBA). The BBA filed a counter-affidavit through its Presi-
    dent, Sri Iqbal Mahomedali Chagla. Though respondents 2 and 4 are
    represented through counsel, they did not file any counter-affidavit. The
D   SCBA informed the Court that its newly elected office bearers required
    time to take a decision on the stand to be taken and were directed them
    to file their written submissions. Shri F.S. Nariman, learned senior counsel
    appeared for the BBA and Shri Harish N. Salve, learned senior counsel,
    appeared for AAWI, the 4th respondent. The learned attorney General
    also assisted the Court. We .place on record our deep appreciation for their
E   valuable assistance.

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

          The petitioner in a well-documented petition stated and argued with
    commitment that the news published in various national newspapers do
    prove that respondents 2 to 4 had pressurised the 1st respondent to resign
G   from the office as .Judge for his alleged misbehaviour. The Constitution
    provides for independence of the Judges of the higher courts, i.e., the
    Supreme Court and the High Courts. It also lays down in proviso (a) to
    clause (2) of Article 124; so too in Article 217 (1) proviso (a) and Article
    124 (4), procedure for voluntary resignation by a .Judge, as well as for
H   compulsory removal, respectively from office in the manner prescribed
       C.R. IYER v. AM. BHATIACHARJEE [K. RAMASWAMY, J.)                 329

therein and in accordance with the Act and the rules made thereunder. A
The acts and actions of the respondents 2 to 4 are unknown to law, i.e.,
removal by forced resignation, which is not only unconstitutional but also
deleterious to the independence of the judiciary. The accusations against
the 1st respondent without proper investigation by an independent agency
seriously damages the image -0f judiciary and efficacy of Judicial adjudica-
                                                                             B
tion and thereby undermine credibility of the judicial institution itself.
Judges are not to be judged by the Bar. Allowing adoption of such
demands by collective pressure rudely shakes the confidence and com-
petence of judges of integrity, ability, moral vigour and ethical firmness,
which in turn, sadly destroys the very foundation of democratic polity.
Therefore, the pressure tactics by the Bar requires to be nibbed in the bud.   c
He, therefore, vehemently argued and requested the Court to adopt such
procedure which would safeguard the independence of the judiciary and
protect the judges from pressure through unconstitutional methods to
demit the office.
                                                                               D
       Shri Chagla in his affidavit and Shri Nariman appearing for the BBA
 explained the circumstances that led the BBA to pass the resolution
requesting the 1st respondent to demit his office as a judge in the interest
of the institution. It is stated in the affidavit that though initially he had in
his custody the documents to show that the 1st respondent had negotiated
with Mr. S.S. Musafir, Chief Executive of Roebuck Publishing, London and E
the acceptance by the 1st respondent for publication and sale abroad of a
book authored by him, viz., "Muslim Law and the Constitut~on" for two
years at a royalty of US $ 80,000 (Eighty thousand U.S. Dollars) and an
inconclusive negotiation for US$ 75,000 (Seventy five thousand U.S. Dol-
lars) for overseas publishing rights of his book "Hindu Law and the F
Constitution" (2nd Edn), he did not divulge the information but kept
confidential. From about late 1994, there was considerable agitation
amongst the members of respondents 3 and 4 that certain persons whose
names were known to all and who were seen in the court and were being
openly talked about, were bringing influence over the 1st respondent and G
could "influence the course of judgments of the former Chief Justice of
Bombay". "The names of such persons though known are not being men-
tioned here since the former Chief Justice of Bombay has resigned as Chief
Justice and judge of the Bombay High Court". Tt was also rumoured that
"the former Chief Justice of Bombay has been paid a large sum of money
in foreign exchange purportedly as royalty for a book written by him, viz., H
                                                                                    I




    330                  SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A   "Muslim Law and the Constitution". The amount of royalty appeared to be
    totally disproportionate to what a publisher abroad would be willing to pay
    for foreign publication of a book which might be of academic interest
    within India (Since the book was a dissertation of Muslim Law in relation
    to the Constitution of India). There was a growing suspicion at the Bar that
    the amount might have been paid for reasons other than the ostensible
B   reason". He further stated that the lst respondents himself had discussed
    with the Advocate General on February 14, 1995 impressing upon the later
    that the Chief Justice "had decided to proceed on leave from the end of
    February and would resign in April 1995". The Advocate General had
    conveyed it to Shri Chagla and other members of the Bar. By then, the
c   financial dealings referred to above were neither known to the public nor
    found mention in the press reports. Suddenly on February 19, 1995, the
    advocates found to their surprise a press interview published in Times of
    India said to have been given by the· lst respondent stating that "he had '
    tiot seriously checked the antecedents of the publishers and it was possible
D   that he had made a mistake in accepting the offer". He was not contemplat-
    ing to resign from judgship at that stage and was merely going on medical
    leave for which he had already applied for and was granted. The BCMG
    passed a resolution on February 19, 1995 seeking "resignation forthwith" of
    the 1st respondent. On February 21, 1995, the BBA received a requisition
    for holding its General Body meeting to discuss the financial dealings said
E   to have been had by the 1st respondent "for a purpose other than the
    ostensible purpose thereby raising a serious doubt as to the integrity of the
    Chief Justice". The meeting was scheduled to be held at 2.15 p.m. on
    February 22, 1995 as per its bye-laws. The 1st respondent appears to have
    rung up Shri Chagla in the evening on February 21, 1995 but he was not
    available. Pursuant to a contact by Shri W.Y. Yande, the President of
F
    AA WI, at the desire of Chief Justice to meet him, Shri Chagla and Shri
    Yande met the 1st respondent at his residence at 10.00 a.m. in the presence
    of two Secretaries of the 1st respondent, who stated thus to Shri Chagla as
    put in his affidavit :

G           ".... The Bar council of Maharashtra and Goa had already shot an
            arrow and that the wound was still fresh and requested me to
            ensure that he would not be hurt any further by a resolution of the
            Bombay Bar Association. The 1st respondent informed me that he
            had already agreed to resign and in fact called for and showed, me
H           a letter dated 17th February, 1995 addressed by him to the
       C.R. IYER v. AM. BHATIACHARJEE [K. RAMASWAMY,J.]               331

        Honourable the Chief Justice of India in which he proposed to go    A
        on medical leave for a month and that at the end of the leave or
        even earlier he proposed to tender his resignation".

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

      Since the 1st respondent has already resigned, the question is
whether a Bar Council or Bar Association is entitled to pass resolution E
demanding a judge to resign, what is its effect on the independence of the
judiciary and whether it is constitutionally permissible. Shri Nariman Con-
tended that the Supreme Court and the High Court are two independent
constitutional institutions. A High Court is not subordinate to the Supreme
Court though constitutionally the Supreme Court has the power to hear F
appeals from the decisions or orders or judgments of the High Courts or
any Tribunal or quasi-judicial authority in the Country. The Judges and the
Chief Justice of a High Court are not subordinate to the Chief Justice of
India. The constitutional process of removal of a Judge as provided in
Article 124(4) of the Constitution is only for proved misbehaviour or
incapacity. The recent impeachment proceedings against Justice V. Ramas- G
wami. and its fall-out do indicate that the process of impeachment is
cumbersome and the result uncertain. Unless corrective steps are taken
against judges whose conduct is perceived by the Bar to be detrimental to
the independence of the judiciary, people would lose faith in the efficacy
of judicial process. Bar being a collective voice of the court concerned has H
    332                   SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.

A   responsibility and owes duty to maintain independence of the Judiciary. It
    is its obligation to bring it to the notice of the Judge concerned the
    perceived misbehaviour or incapacity and if it is not voluntarily corrected
    they have to take appropriate measures to have it corrected. Bar is not
    aware of any other procedure than the one under Article 124(4) of the
    Constitution, and the Act. Therefore, the BBA, instead of proceeding to
B   the press, adopted democratic presses to pass the resolution, in accordance
    with its bye-laws, when all attempts made by it proved abortive. The
    conduct of the Judge betrayed their confidence in his voluntary resignation.
    Consequently, the BBA was constrained to pass the said resolution. There-
    by it had not transgressed its limits. Its action is in consonance with its
c   bye-laws and in the best tradition to maintain independence of the
    judiciary. Shri Nariman also cited the instance of non-assignment of work
    to four judges of the Bombay High Court by its former chief Justice when
    some allegations of misbehaviour were imputed to them by the Bar. He,
    however submitted that in the present case the allegations were against the
D   Chief Justice himself, and so, he could not have been approached. He
    urged that if some guidelines could be laid down by this Court in such
    cases, the same would be welcomed.

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

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

         The learned Attorney General contended that any resolution passed
    by any Bar Association tantamounts to scandalising the court entailing
    contempt of the court. It cannot coerce the judge to resign. The pressure
H   brought by the Chief Justice of India upon the Judge would be constitu-
       C.R. IYER v. AM. BHATIACHARJEE [K. RAMASWAMY,J.)                  333

tional but it should be left to the Chief Justice of India to impress upon     A
the erring Judge to correct his conduct. This procedure would yield
salutary effect. The Chief Justice of India would adopt such procedure as
is appropriate to the situation. He cited the advice tendered by Lord
Chancellor of England to Lord Denning, when the latter was involved in
the controversy over his writing on the jury trial and the composition of
                                                                               B
the black members of the jury, to demit the office, which he did in grace.

Rule of Law and Judicial Independence - Why need to be prese1ved?


       The diverse contentions give rise to the question whether any Bar
council or Bar Association has the right to pass resolution against the         c
conduct of a Judge perceived to have committed misbehaviour and, if so,
what is its effect on independence of the judiciary. With a view to ap-
preciate the contentions in their proper perspective, it is necessary to have
at the back of our mind the importance of the independence of the
judiciary. In a democracy governed by rule of law under written Constitu- D
tion, judiciary is sentinel on the qui vive to protect the fundamental rights
and to poise even scales of justice between the citizens and the State or
the States inter se. Rule of law and judicial review are basic features of the
Constitution. As its integral constitutional structure, independence of the
judiciary is an essential attribute of rule of law. In S.P. Gupta v. Union of
India, [1981] Supp. SCC 87, in paragraph 27, this Court held that if there E
is one principle which runs through the entire fabric of the Constitution it
is the principle of the rule of law, and under the Constitution it is the
judiciary which is entrusted with the task of keeping every organ of the
State within the limits of the law and thereby making the rule of law
 meaningful and effective, Judicial review is one of the most potent weapons F
in the armoury of law. The judiciary seeks to protect the citizen against
violation of his constitutional or legal rights or misuse or abuse of power
by the State or its officers. The .judiciary stands between the citizen and
the State as a bulwark against executive excesses and misuse or abuse of
power by the executive. It is therefore, absolutely essential that the judiciary G
must be free from executive pressure or influence which has been secured
by making elaborate provisions in the Constitution with details. The inde-
pendence of judiciary is not limited only to the independence from the
executive pressure or influence; it is a wider concept which takes within its
sweep independence from any other pressure and prejudices. It has man-y
dimensions, viz., fearlessness of other power centres, economic or political, H
    334                   SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A and freedom from prejudices acquired and nourished by the class to which
    the judges belong.

    Judicial individualism - whether needs protection?

           Independent judiciary is, therefore, most essential when liberty of
B   citizen is in danger, It then becomes the duty of the judiciary to poise the
    scales of justice unmoved by the powers (actual or perceived) undisturbed
    by the clamour of the multitude. The heart of judicial independence is
    judicial individualism. The judiciary is not a disembodied abstraction. It is
    composed of individual men and women who work primarily on their own.
    Judicial individualism, in the language of Justice Powell of the Supreme
c   Court of United States in his address to the American Bar Association,
    Labour Law Section on August 11, 1976, is perhaps one of the last citadels
    of jealously preserved individualism... ". Justice Douglas in his dissenting
    opinion in Stephen S. Chandler v. Judicial Council of the Tenth Circuit of
    the United States 398 US 74: 26 L.ED. 2d 100 stated :
D
            "No matter how strong an individual judge's spine, the threat of
            punishment---i:he greatest peril to judicial independence - would
            project as dark a shadow whether cast by political strangers or by
            judicial colleagues. A federal judge must be independent of every
            other judge... Neither one alone nor any number banded together
E           can act as censor and place sanctions on him. It is vital to preserve
            the opportunities for judicial individualism."

          He further opined that to give the administrative officer any super-
    vision or control over the exercise of purely judicial function would be to
F   destroy the very fundamentals of the theory of government. An inde-
    pendent judiciary is one of the nation's outstanding characteristics. Once
    a federal judge is confirmed by the Senate and takes his oath, he is
    independent of every other judge. Be commonly works with other federal
    judges who are likewise sovereign. But neither one alone nor any number
    banded together can act as censor and place sanctions on him. Under the
G   Constitution the only leverage that can be asserted against him in impeach-
    ment, where pursuant to a resolution passed by the House, he is tried by
    the Senate, sitting as a jury. The tradition even bars political impeachments
    as evidence by the highly partisan, but unsuccessful, effort to oust Justice
    Samuel of that Court in 1805 ...... ·There is no power under the Constitution
H   for one group of federal judges to censor any federal judge and no power
       C.R. IYER v. AM. BHATIACHARJEE [K. RAMASWAMY, J.]                 335

to declare him inefficient and strip him of his power to act as a Judge. At     A
page 139 it was further pointed out that it is time that an end be put to
these efforts of federal judges to ride herd on other federal judges. This is
a form of 'hazing' having no place under the Constitution. Federal Judges
are entitled, like other people, to the full freedom of the First Amend-
ment. If they break a law, they can be prosecuted. If they become corrupt
                                                                                B
or sit in cases in which they have a personal or family stake, they can be
impeached by Congress. But I search the Constitution in vain for any power
of surveillance which other federal judges have over those aberrations.
Some judges may be displeasing to those who walk in more measured,
conservative steps. But those idiosyncrasies can be of no possible constitu-
tional concern to other federal judges. It is time to put an end to the         c
monstrous practices that seem about to overtake us ..... ".

       In Chandler, a United States District Judge had filed a motion for
leave to file a petition for a writ of mandamus or alternatively a writ of
prohibition addressed to the Judicial Council of the Tenth circuit. His D
petition sought resolution of questions of first impression concerning, inter
aliq, the scope and constitutionality of the powers of the Judicial Council
under 28 USC 88 137 and 6,332. The Judicial Council of each federal
circuit is under that stature, composed of the active circuit judges of the
circuit. Petitioner asked the Court to issue an order under the All Writs
Act telling the Council to "cease acting in violation of its powers and in E
violation of Judge Chandler's rights as a federal judge and an american
citizen". Majority held that in essence, petitioner challenged all orders of
the judicial Council relating to assignment of cases in the Western District
of Oklahoma and fixing conditions on the exercise of his constitutional
powers as a Judge. Specifically, petitioner urged that the Council has F
usurped the impeachment power, committed by the Constitution to the
Congress exclusively. While conceding that the invoking statute conferred
some powers on the Judicial Council, petitioner contended that the
legitimate administrative purposes to which it may be turned, do not
include stripping a judge of his judicial functions as, he claimed, was done
~~~~~d                                                                        G

      The arch of the Constitution of India pregnant from its Preamble,
Chapter III (Fundamental Rights) and Chapter IV (Directive Principles)
is to establish an egalitarian social order guaranteeing fundamental
freedoms and to secure justice-social, economic and political - to every        H
    336                  SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A   citizen through rule of law. Existing social inequalities need to be remo¢ed
    and equality in fact is accorded to all people irrespective of caste, creed,
    sex, religion or region subject to protective discrimination only through rule
    of law. The Judge cannot retain his earlier passive judicial rule when he
    administers the law under the Constitution to give effect to the constitu-
    tional ideals. The extraordinary complexity of modern litigation requires
B   him not merely to declare the rights of citizens but also to mould the relief
    warranted under given facts and circumstances and often command the
    executive and other agencies to enforce and give effect to the order, writ
    or direction or prohibit them to do unconstitutional acts. In this on going
    complex of adjudicatory process, the role of the judge is not merely to
c   interpret the law but also to lay new norms of law and to mould the law
    to suit the changing social and economic scenario to make the ideals
    enshrined in the Constitution meaningful and reality. Therefore, the Judge
    is required to take judicial notice of the social and economi~ ramification,
    consistent with the theory of law. Thereby, the society demands active
D   judicial roles which formerly were considered exceptional but now a
    routine. The Judge 'must act independently, if he is to perform the functions
    as expected of him and he must feel secure that such action of him will not
    lead to his own downfall. The independence is not assured for the Judge •
    but to the judged. Independence to the Judge, therefore, would be both
    essential and proper. Considered judgment of the court woi,tld guarantee the
E   Constitutional libe1ties which would thrive only in an atmosphere of judicial
    independence. Every endeavour should be made to preserve independent
    judiciary as a citadel of public justice and public security to fulfil the
    constitutional role assigned to the Judges.

p          The founding fathers of the Constitution advisedly adopted cumber-
    some process of impeachment as a mode to remove a Judge from office
    for only proved misbehaviour or incapacity which implies that impeach-
    ment process is not available for minor abrasive behaviour of a Judge. It
    reinforces that independence to the Judge is of paramount importance to
    sustain, strengthen and elongate rule of law. Parliament sparingly resorts
G   to the mechanism of impeachment designed under the Constitution by
    political process as the extreme measure only upon a finding of proved
    misbehaviour or incapacity recorded by a committee c?nstituted under
    Section 3 of the Act by way of address to the President in the manner laid
    down in Article 124 (4) and (5) of the Constitution, the Act and the Rules
H   made thereunder.
•'          C.R. IYER v. A.M. BHAITACHARJEE [K. RAMASWAMY, J.]                337

             In all common law jurisdictions, removal by way of impeachment is       A
     the accepted norm for serious acts of judicial misconduct committed by a
     Judge. Removal of a Judge by impeachment was designed to produce as
     little damage a possible to judicial independence, public confidence in the
     efficacy of judicial process and to maintain authority of courts for its
     effecfae operation.
                                                                                     B
            In United State, the Judges appointed under Article III of the
     American Constitution could be removed only by impeachment by the
     Congress. The Congress enacted the Judicial Councils Reform and Judicial
     Conduct and disability Act of 1980 (the 1980 Act) by which Judicial
     Council was explicitly empowered to receive complaints about the judicial       C
     conduct "prejudicial to the effective and expeditious administration of a
     business of the courts, or alleging that such a judge or magistrate is unable
     to discharge all the duties of office by reason of mental or physical
     disability".
                                                                                     D
           Jeffrey N. Barr and Thomas E. Willging conducted research on the
     administration of the 1980 Act and in their two research volumes, they
     concluded that "several chief judges view the Act as remedial legislation
     designed not to punish judges but to correct aberrant behaviour and
     provide opportunity for corrective action as a central feature of the Act".
     From 1980 to 1992, 2388 complaints were filed. 95 percent thereof resulted      E
     in dismissal. 1.7. per cent of the complaints ended in either dismissal from
     service or corrective action of reprimands - two of public reprimands and
     one of private reprimand. Two cases were reported to Judicial Conference
     by the judicial councils certifying that the grounds might exist for impeach-
     ment.                                                                           F

            Our Constitution permits removal of the Judge only when the motion
     was carried out with requisite majority of both the Houses of the Parlia-
     ment recommending to the President for removal. In other words, the
     Constitution does not permit any action by any agency other than the
     initiation of the action under Article 124(4) by the Parliament. In Sub-Com- G
     mittee on Judicial Accountability Etc. Etc. v. Union of India & Ors. Etc.,
     [1991] Supp. 2 SCR 1, this Court at page 54 held that the removal of a
     Judge culminating in the presentation of an address by different Houses of
     Parliament to the President, is committed to the Parliament along and no
     initiation of any investigation is possible without the initiative being taken H
    338                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A   by the Houses themselves. At page 71 it was further held that the constitu-
    tional scheme envisages removal of a Judge on proved misbehaviour or
    incapacity and the conduct of the Judge was prohibited to be discussed in
    the Parliament by Article 121. Resultantly, discussion of the conduct of a·
    judge or any evaluation or inferences as to its merit is not permissible
    elsewhere except during investigation before the Inquiry Committee con-
B   stituted under the Act for this purpose.

           Articles 124(4) and 121 would thus put the nail squarely on the
    projections, prosecutions or attempts by any other forum or group of
    individuals or Associations, statutory or otherwise, either to investigate or
C   enquire into or discuss the conduct of a Judge or the performance of his
    duties and on/off court behaviour except as per the procedure provided
    under Article 124(4) and (5) of the Constitution, and Act and the Rules.
    Thereby, equally no other agency or authority like the C.B.I. Ministry of         ,_
                                                                                           I
    Finance, the Reserve Bank of India (respondents Nos. 8 to 10) as sought
D   for by the petitioner, would investigate into the conduct or acts or actions
    of a Judge. No mandamus or direction would be issued to the Speaker of
    Lok Sabha or Chairman of Rajya Sabha to initiate action for impeachment.
    It is true, as contended by the petitioner, that in K. Veeraswami v. Union
    of India, [1991] 3 SCC 655, majority of the Constitution Bench upheld the
    power of the police to investigate into the disproportionate assets alleged
E   to be possessed by a Judge, an offence under Section 5 of the Prevention
    of Corruption Act, 1947 subject to prior sanction of the Chief Justice of
    India to maintain independence of the judiciary. By interpretive process,
    the Court carved out primacy to the rule of the Chief Justice of India,
    whose efficacy in a case like one at hand would be considered at a later
F   stage.

    Duty of lht! Judge to maintain high standard of conduct. Its judicial in-
    dividualism - whether protection imperative?

          Judicial office is essentially a public trust, Society is, therefore,
G entitled to expect that a Judge must be a man of high integrity, honesty
    and required to have moral vigour, ethical firmness and impervious to
    corrupt or venial influences. He is required to keep most exacting stand-
    ards of propriety in judicial conduct. Any conduct which tends to under-
    mine public confidence in the integrity and impartiality of the court would
H   be deleterious to the efficacy of Judicial process. Society, therefore, expects
       C.R. IYER v. A.M. BHATfACHAR.TEE [K. RAMASWAMY, J. J              339

higher standards of conduct and rectitude from a Judge. Unwritten code          A
of conduct is writ large for judicial officers to emulate and imbibe high
moral or ethical standards expected of a higher judicial functionary, as
wholesome standard of conduct which would generate public confidence,
accord dignity to the judicial office and enhance public image, not only of
the Judge but the court itself. it is, therefore, a basic requirement that a
                                                                                B
Judge's official and personal conduct be free from impropriety; the same
must be in tune with the highest standard of propriety and probity. The
standard of conduct is higher than expected of a layman and also higher
than expected of an advocate. In fact, even his private life must adhere to
high standards of probity and propriety, higher than those deemed accept-
able for others. Therefore, the Judge can ill-afford to seek shelter from the   c
fallen standard in the society.

      In Kiishna Swami V. Union of India & Ors., [1992] 4       sec605 at
650-51, one of us (K. Ramaswamy, J). held that the holder of office of the
judge of the Supreme Court or the High Court should, therefore, be above        D
the conduct of ordinary mortals in the society. The standards of judicial
behaviour, both on and off the Bench, are normally high. There cannot,
however, be any fixed or set principles, but an unwritten code of conduct
of well-established traditions is the guidelines for judicial conduct. The
conduct that tends to undermine the public confidence in the character,
integrity or impartiality of him Judge must be eschewed. It is expected of      E
him to voluntarily set forth wholesome standards of conduct reaffirming
fitness to higher responsibilities.

      To keep the stream of justice clean and pure, the Judge must be
endowed with sterling character, impeccable integrity and upright be-           F
haviour. Erosion thereof would undermine the efficacy of the rule of law
and the working of the Constitution itself. The Judges of higher echelons,
therefore, should not be mere men of clay with all the frailties and foibles,
human failings and weak character which may be found in those in other
walks of life. They should be men of fighting faith with tough fibre not
susceptible to any pressure, economic, political or any sort. The actual as     G
well as the apparent independence of judiciary would be transparent only
when the office holders endow those qualities which would operate as
impregnable fortress against surreptitious attempts to undermine the inde-
pendence of the judiciary. In short, the behaViour of the Judge is the
bastion for the people to reap the fruits of the democracy, liberty and         H
    340                  SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A justice and the antithesis rocks the bottom of the rule ot law.

    Scope and meaning of "misbehaviour" in A1ticle 124 (4) :


         Article 124(4) of the Constitution sanctions action for removal of a
B judge on proved misbehaviour or incapacity. The word "misbehaviour" was
  not advisedly defined. It is a vague and elastic word and embraces within
  its sweep different facets of conduct as opposed to good conduct. In the
  Law Lexicon by P. Ramanatha Aiyar, 1987 Edn. at page 821, collected from
  several decisions, the meaning of the word 'misconduct' is stated to be
  vague and relative term. Literally, it means wrong conduct or improper
c conduct. It has. to be co~strued with reference to the subject matter and
  the context wherein the terms occurs having regard to the scope of the Act
  or the statute under consideration. In the context of disciplinary proceed-
  ings against Solicitor, the word misconduct was construed as professional
  misconduct extending to conduct "which shows him to be unworthy mem-
D ber of the legal profession." In the context of misrepresentation made by a
  pleader, who obtained adjournment of a case on grounds to his knowledge
  to be false a Full Bench of the Madras High Court in Re: A First Grade
  Pleader AIR 1931 Mad. 422 = ILR 54 Mad. 520 held that if a legal
  practioner deliberately made, for the purpose of impeding the course of
  justice, a statement to the court which he believed to be untrue and thereby
E gained an advantage for his client, he was guilty of gross improper conduct
  and as such rendered himself liable to be dealt with by the High Court in
  the exercise of its disciplinary jurisdiction. Misconduct on the part of an
  arbitrator was construed to mean that misconduct does not necessarily
   comprehend or include misconduct of a fraudulent or improper character,
F but  it does comprehend and include action on the part of the arbitrator
  which is, upon the face of it, opposed to all rational and reasonable
   principles that should govern the procedure of any person who is called
   upon to decide upon questions in difference and dispute referred to him
  by the parties. Misconduct in office was construed to mean unlawful
  behaviour or include negligence by public officer, by which the rights of
G the party have been affected. In J(Jishna Swami's case (supra), one of us,
  K. Ramaswamy, J., considered the scope of 'misbehaviour' in Article 124(4)
  and held in paragraph 71 that "every act or conduct or even error of
  judgment or negligent acts by higher judiciary per se does not amount to
  misbehaviour. Wilful abuse of judicial office, wilful misconduct in the
H office, corruption, lack of integrity, or any other offence involving moral
           C.R. IYER v. AM. BHATIACHARJEE [K. RAMASWAMY, J.]                341

    turpitude would be misbehaviour. Misconduct implies actuation of some         A
    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 do/us ma/us would be misbehaviour. Mis-
    behaviour would extend to conduct of the Judge in or beyond the execution
    of judicial office. Even administrative actions or omissions too need
                                                                                  B
    accompaniment of mens rea".

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

          Bad conduct or bad behaviour of a Judge, therefore, needs correc-
    tion to prevent erosion of public confidence in the efficacy of judicial
    process or dignity of the institute or credibility to the judicial office held F
    by the obstinate Judge. When the Judge cannot be removed by impeach-
    ment process for such conduct but generates widespread feeling of dissatis-
    faction among the general public, the question would be who would stamp
    out the rot and judge the Judge or who would impress upon the Judge
    either to desist from repetition or to demit the office in grace? Who would
    be the appropriate authority? Who would be the principal mover in that G
    behalf? The haitus between bad behaviour and impeachable misbehaviour
    needs to be filled in to stem erosion of public confidence in the efficacy of
    judicial process. Whether the Bar of that Court has any role to play either
    in an attempt to correct the perceived fallen standard or is entitled to make
    a demand by a resolution or a group action to pressurise the Judge to H
    342                   SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R. .

A resign his office as a judge? The resolution to these questions involves
    delicate but pragmatic approach to the questions of constitutional law.

    Role of the Ba1· Council or Bar Associations - whether unconstitutional?

           The Advocate Act, 1961 gave autonomy to a Bar Council of a st~.LC
B
    or Bar Council of India and Section 6(1) empowers them to make such
    action deemed necessary to set their house in order, to prevent fall in
    professional conduct and to punish the incorrigible as not befitting to the
    noble profession apart from admission of the advocates on its roll. Section
    6 (1) (c) and rules made in that behalf, Sections 9, 35, 36 36B and 37 enjoin
c   it to entertain and determine cases of misconduct against advocates on its
    roll. The members of the judiciary are drawn primarily and invariably from
    the Bar at different levels. The high moral, ethical and professional stand-
    ards among the members of the Bar are pre-conditions even for high
    ethical standard of the Bench. Degeneration thereof inevitably has its
    eruption and tends to reflect the other side of the coin. The Bar Council,
D   therefore, is enjoined by the Advocates Act to maintain high moral, ethical
    and professional standards. Which of late is far from satisfactory. Their
    power under the Act ends thereat and extends no further. Article 121 of
    the Constitution prohibits discussion by the members of the Parliament of
    the conduct of any Judge of the Supreme Court or of High Court in the
    discharge of his duties except upon a motion for presenting an address to
E   the President praying for the removal of the 'Judge as provided under
    Article 124(4) and (5) and in the manner laid down under the Act, the
    Rules and the rules of business of the Parliament consistent therewith. By
                                                                                    -
    necessary implication, no other forum or fora or platform is available for
    discussion of the conduct of a Judge in the discharge of his duties as a
F   Judge of the Supreme Court or the High Court, much less a Bar Council
    or group of practising advocates. They are prohibited to discuss the con-
    duct of a Judge in the discharge of his duties or to pass any resolution in
    that behalf.

          Section 2(c) of the Contempt of Courts Act, 1971, defines "criminal
G contempt" to mean publication whether by words spoken or written, signs,
    visible representations or otherwise of any matter or the doing of any act
    whatsoever which scandalises or tends to scandalise, lower or tends to
    lower the authority of any court or prejudices or interferes or tends to
    interfere with the due course of any judicial proceeding, or interferes or
H   tends to interfere with or obstructs or tends to obstruct the administration
       C.R. IYER v. AM. BHATIACHARJEE [K. RAMASWAMY, J.]                343

of justice in any other manner.                                               A

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

       In Oswald's Contempt of Court (3rd Edn.) 1993 at page 50 it is stated
that libel upon courts is made contempt "to keep a blaze of glory around
them, and to deter people from attempting to render them contemptible E
in the eyes of the public..... A libel upon a court is a reflection upon the
king, and telling the people that the administration of justice is in week or
 corrupt hands, that the fountain of justice itself is tainted, and consequently
 that judgments which stream out of that fountain must be impure and
contaminated": A libel upon a Judge in his judicial capacity is a contempt, F
whether it concerns what he did in court, or what he did judicially out of
it. At page 91, it is stated that all publications which offend against the
dignity of the court, or are calculated to prejudice the course of justice,
will constitute contempt. One of the natures of offences is scandalising the
courts. In Contempt of Court (2nd Edn) by CJ. Millar at page 366, Lord
Diplock is quoted from Chokolingo v. AG of Tlinidaad and Tobago (1981) G
 1 All ER 244 at 248, who spoke for the Judicial Committee summarising
the position thus : "'Scandalising the court' is a convenient way of describ-
ing a publication which, although it does not relate to any specific case
either past or pending or any specific .Judge, is a scrurrilous attack on the
judiciary as a whole, which is calculated to undermine the authority of the H
     344                   SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

 A courts and 'public confidence in the administration of justice." In Borrie
     and Lowe's Law of Contempt (2nd Edn.) at page 226 it is stated that the
     necessity for this branch of contempt lies in the idea that without well-regu-
     lated laws a civilised community cannot survive. It is therefore, thought
     important to maintain the respect and dignity of the court and its officers,
     whose task it is to uphold and enforce the law, because without such
·B
     respect, public faith in the administration of justice would be undermined
     and the law itself would fall into disrepute. Even in the latest Report on
     Contempt of Court by Phillimore Committee to revise the penal enforce-
     ment of contempt, adverting to Lord Atkin's dictum that courts are satis-
     fied to leave to public opinion attacks or comments derogatory or
 c   scandalous to them, in paragraph 162, the Committee had st~ted that at
     one stage "we considered whether such conduct should be subject to penal
     Sanctions at all. It was argued that any judge who was attacked would have
     the protection of the law of defamation, and that' no further protection is
     necessary. We have concluded, however, that some restraints are still
 D   required, for two reasons. First, this branch of the law of contempt is
     concerned with the protection of the administration of justice, and espe-
     cially the preservation of public confidence in its honesty and impartiality;
     it is only incidentally, if at all concerned with the personal reputations of
     Judges. Moreover, some damaging attacks, for example upon an un-
     specified group of judges, may not be capable of being made the subject
 E   of libel proceedings at all. Secondly, Judges commonly feel constrained by
     their position not to take action reply to criticism, and they have no proper
     forum in which to do so such as other public figures may have. These
     considerations lead us to the conclusion that there is need for an effective
     remedy .... against imputations of improper or corrupt judicial conduct."
 F   The Contempt of Courts Act, 1971 engrafted suitable amendments accord-
     ingly.

     Freedom of expression and duty of Advocate ;

           It is true that freedom of speech and expression guaranteed by
 G Article 19 (1) (a) of the Constitution is one of the most precious liberties
     in any democracy. But equally important is the maintenance of respect for
     judicial independence which alone would protect the life, liberty and
     reputation of the citizen. So the nation's interest requires that criticism of
     the judiciary must be measured, strictly. rationai sobre and proceed from
 H   the highest motives without being coloured by partisan spirit or pressure
       C.R. IYER v. AM. BHATTACHARJEE [K. RAMASWAMY, J.]                   345

tactics or intimidatory attitude. The Court must, therefore, harmonise            A
constitutional values of free criticism and the need for a fearless curial
process and its presiding functionary, the Judge. If freedom of expression
subserve public interest in reasonable measure, public justice cannot gag it
or manacle it; but if the court considered the attack on the Judge or Judges
scrurrilous, offensive, intimidatory or malicious, beyond condonable limits,
                                                                                  B
the strong arm of the law must strike a blow on him who challenges the
supremacy of the rule of the law by fouling its source and stream. The
power to punish the contemner is, therefore, granted to the court not
because Judges need the protection but because the citizens need an
impartial and strong judiciary.
                                                                                  c
      It is enough if all of us bear this in mind while expressing opinions
on courts and Judges. But the question that still remains is when the Bar
of the Court, in which the Judge occupies the seat of office, honestly
believes that the conduct of the Judge or of the Bench fouls the fountain
of justice, or undermines or tends to undermine the dignity expected a            D
Judge and the people are tending to disbelieve the impartiality or integrity
of the Judge, who should bear the duty and responsibility to have it/them
corrected so as to restore the respect for judiciary?

      In Brahma Prakash Shanna & Ors. v. The State of Uttar Pradesh, AIR
(1954) SC 10 the Bar Association passed resolutions and communicated to           E
the superior authorities that certain judicial officers were incompetent due
to their conduct' in the court and High Court took action for contempt of
the court. The question was whether the members of the Executive Com-
mittee of the Bar Association had committed contempt of the court? This
Court held that the attack on a .T udge is a wrong done to the public and if      F
it tends to create apprehension in the minds of the people regarding the
integrity, ability or fairness of the judge and to deter actual and prospective
litigants from placing complete reliance upon the court's administration of
Justice, or if it is likely to cause embarrassment in the mind of the Judge
himself in the discharge of his judicial duties, it would be scandalising the
court and be dealt with accordingly.                                              G

      The threat of action on vague grounds of dissatisfaction would create
a dragnet that would inevitably sweep into its grasp the maverick, the
dissentor, the innovator, the reformer - in one word the unpopular. In-
sidious, attempts pave way for removing the inconvenient. Therefore,              H
    346                   SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A   proper care should be taken by the Bar Association concerned. First it
    should gather specific, authentic and acceptable material which would
    show or tend to show that conduct on the part of a Judge creating a feeling
    in the mind of a reasonable person doubting the honesty, integrity, impar-
    tiality or act which lowers the dignity of the office but necessarily, is not
    impeachable misbehaviour. In all fairness to the Judge, the responsible
B
    office bearers should meet him in camera after securing interview and
    apprise the Judge of the information they had with them. If there is truth
    in it, there is every possibility that the Judge would mend himself. Or to
    avoid embarrassment to the Judge, the office bearers can approach the
    Chief Justice of that High Court and apprise him of the situation with
c   material they have in their possession and impress upon the Chief Justice
    to deal with the matter appropriately.

    Primacy of the Chief Justice of India

D        It is true that this Court has neither administrative control over the
  High Court nor power on the judicial side to enquire into the misbehaviour
  of a Chief Justice or Judge of a High Court. When the Bar of the High
  Court concerned reasonably and honestly doubts the conduct of the Chief
  Justice of that court, necessarily the only authority under the Constitution
  that could be tapped is the Chief Justice of India, who in common parlance
E is known as the head of the judiciary of the country. It is of importance to
  emphasis here that impeachment is meant to be a drastic remedy and needs
  to be used in serious cases. But there must exist some other means to
  ensure that Judges do not abuse the trust the society has in them. It seems
  to us the self- regulation by the judiciary is the only method which can be
F tried and adopted. Chief Justice of India is the first among the Judges.
   Under Articles 124(2) an 217(1), the President of India always consults the
   Chief Justice of India for appointment of the Judges in the Supreme Court
   and High Court. Under Article 222, the President transfer Judges of High
  Courts in consultation with the Chief Justice of India. In Supreme Court
  Advocates-on- record association v. Union of india, [1993) 4 SCC 441, it was
G reinforced and the Chief Justice of India was given centre stage position.
  The Primacy and importance of the office of the Chief Justice was recog-
  nised judicially by.this Court in Veeraswami's case (supra) in para 60 at
  page 709. This Court, while upholding power to register case against a
  retired Chief Justice of the High Court, permitted to proceed with the
H investigation for the alleged offence under Section 5 of the Prevention of
       C.R. IYER v. A.M. BHATIACHARJEE [K. RAMASWAMY, J.]                 347

Corruption Act. The Constitution Bench per majority, However, held that          A
the sanction and approval of the Chief Justice of India is a condition
precedent to register a case and investigation into the matter and sanction
for prosecution of the said Judge by the President after consultation with
the Chief Justice of India.

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

        "It would be reasonable to assume that the Chief Justice of India
        is expected to find a desirable solution in such a situation to avoid
        embarrassment to the learned Judge and to the Institution in the         C
        manner which is conductive to the independence of judiciary and
        should the Chief Justice of India be of the view that in the interests
        of the institution of judiciary it is desirable for the learned Judge
        to abstrain from judicial work till the final outcome under Article
        124 (4), he would advise the learned Judge accordingly. It is further
        reasonable to assume that the concerned learned Judge would              D
        ordinarily abide by the advice of the Chief Justice of India."

      International Bar Association at its 19th Biennial Conference held at
New Delhi in October 1982 had adopted minimum standards for judicial
conduct. Paras 27 to 72 relate to judicial removal and discipline. Para 31
says that "the head of the Court may legitimately have supervisory powers
                                                                                 E
to control judges on administrative matters."

       In "Chilling Judicial Independence", Irving R. Kaufman, Chief Judge,
U.S. Court of Appeals, for the Second Circuit (See : Yale Law Journal
(Vol. 88) 1978-79 P. 681 at page 712) stated that it seems unwise to allow       F
bureaucrats, whether lawyers or not, to determine, even in part, the fate
of Judges. The sheer magnitude of the disciplinary engine would be a major
nuisance. Judges frequently receive hostile or threatening correspondence
from disappointed litigants. Creation of a new disciplinary scheme would
transform a minor annoyance into a constant threat of official action. At
the ver~' 1"'"ASt, it would require time- Consuming responses by the Judge.      G
Even if the Judge were not eventually condemned, the mere invocation of
the statutory provisions might taint him with a devastating stigma. The
vestment of authority might remain but the aura of respect and confidence
so essential to the judicial function would be forever dissipated. He, there-
fore, suggested that pressure by the peers would yield salutary effect on the H
    348                   SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A   ening judge and, therefore, judicial system can better swvive by pressiire of
    the peers instead of disciplinmy actions. At page 709 he stated : "Peer
    pressure is a potent tool. It should not be underestimated because it is
    neither exposed to public view nor enshrined in law".

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

         Bearing all the above in mind, we are of the considered view that
  where the complaint relates to the Judge of the High Court, the Chief
E Justice of that High Court, after verification, and if necessary, after con-
  fidential enquiry from his independent source, should satisfy himself about
  the truth of the imputation made by the Bar Association through its office
  bearers against the Judge and consult the Chief Justice of India, where
  deemed necessary, by placing all the information with him. When the Chief
F Justice of India is seized of the matter, to avoid embarrassment to him and
  to allow fairness in the procedure to be adopted in furtherance thereof,
  the Bar should suspend all further actions ·to enable the Chief Justice of
  India to appropriately deal with the matter. This is necessary because any
  action he may take must not only be just .but must also appear to be just
  to all concerned, i.e., it must not even appear to have been taken under
G pressure from any quarter. The Chief Justice of India, on receipt of the
  information from the Chief Justice of the High Court, after being satisfied
  about the. correctness and truth touching the conduct of the Judge, may
  tender such advice either directly or may initiate such action, as is deemed
  necessary or warranted under given facts and circumstances. If circumstan-.
H ces permit, it may be salutary to take the Judge into confidence before
        C.R. IYER v. AM. BHATTACHARJEE [K. RAMASWAMY, J.]                 349

initiating action. On the decision being taken by the Chief Justice of India, A
the matter should rest at that. This procedure would not only facilitate
nibbing in the bud the conduct of a judge leading to loss of public
confidence in the courts and sustain public faith in the efficacy of the rule
of law and respect for the judiciary, but would also avoid needless embar-
rassment of contempt proceedings against the office bearers of the Bar
                                                                              B
Association and group libel against all concerned. The independence of
judiciary and the stream of public justice would remain pure and unsullied.
The Bar Association could remain a useful arm of the Judiciary and in the
case of sagging reputation of the particular Judge, the Bar Association
could take up the matter with the Chief Justice of the High Court and await
his response for the action taken thereunder for a reasonable period.            c
      In case the allegations are against Chief Justice of a High Court, the
Bar Should bring them directly to the notice of the Chief Justice of India.
On receipt of such complaint, the Chief Justice of Indfa would in the same
way act as stated above qua complaint against a Judge of the High Court, D
and the Bar would await for a reasonable period the response of the Chief,
Justice of India.


        It would thus be seen that yawning gap between proved misbehaviour
and bad conduct inconsistent with the high office on the part of a non           E
cooperating Judge/Chief Justice of a High Court could be disciplined by
self-regulation through inhouse procedure. This inhouse procedure would
fill in the constitutional gap and would yield salutary effect. Unfortunately,
recourse to this procedure was not taken in the case at hand, may be,
because of absence of legal sanction to such a procedure.
                                                                                 F
      Since the 1st respondent already demitted the office, we have stated
as above so that it would form a precedent for future.


       The writ petition is accordingly disposed of.                             G

R.A.                                                    Petition disposed of.