INTRODUCTION

The conflict among the judiciary, legislature, and executive stems from the principle of

separation of powers. This doctrine asserts that these three essential branches of government

operate independently and are equally crucial for effective governance. The French

philosopher Montesquieu highlighted in the sixteenth century that concentrating power

within a single entity or group can lead to tyranny. To address this issue, he proposed

distributing authority among three separate branches: the legislature, the executive, and the

judiciary. This division ensures that each branch remains autonomous, preventing any

encroachment or overlap of functions and fostering a balanced system that promotes efficient

governance. The underlying philosophy suggests that if legislative and executive powers

were combined, it could lead to despotism and arbitrary rule.

The American politician James Madison, better known as the ‘Father of the American

Constitution’ also believed the same and articulated the following, “The accumulation of all

powers, legislative, executive and judicial, in the same hands whether of one, a few, or many

and whether hereditary, self-appointed or elective, may justly be pronounced the very

definition of tyranny.”

However there are certain overlapping features despite the concept of “Separation of

powers” being an integral part of the “Constitution of India”. As it so happens the

administrative body ends up performing certain judicial and quasi-judicial functions, whereas

the judiciary ha certain administrative functions to look after.

The Court serves as the highest authority within the judicial framework of the state. For the

average citizen, as well as for most lawyers, its significance primarily lies in its judicial role.

While its judicial responsibilities often overshadow its administrative duties, the latter still

play a crucial role in maintaining the integrity, independence, and effectiveness of the entire

judicial system, from the lowest to the highest levels. Many believe that the rule of law,

which is fundamental to freedom in democratic societies, is primarily threatened by executive

overreach and thus needs safeguarding against such intrusions. However, it is important to

recognize that the rule of law also hinges on the effectiveness of the justice administration. A

corrupt or inefficient judicial system can undermine the principles of law and justice,

potentially more so than any direct attack from the executive branch. This highlights the

national significance of the administrative functions performed by the Courts.

An independent judiciary is considered to be the touchstone of a democratic system of

government under a written constitution. The question of whether the various functions

exercised by the judiciary can be classified as administrative is a disputed one. Apart from the

inherently and obviously judicial functions that a court performs, there are also various other

areas in which it is involved, including, but not limited to, the judicial review and

modification of administrative decisions and orders, the appointment of judges to various

courts and the allocation of cases to different benches of a court. Of these, the judicial review

of executive actions, was held to be a purely administrative power in Sadhu Singh v. Delhi

Administration1 on the ground that if the initial order was executive (or administrative) a

review of that order cannot but be regarded as an executive order. In a subsequent ruling,

delivered by Mr. Justice Shelat, the Supreme Court reversed its earlier stance, stating that the

review process carried out by the detaining authority is quasi-judicial, even if the initial

decision was administrative in nature. The Court clarified that there is a distinction between
1
A.I.R. 1966 S.C. 91.

2
the government’s initial power to detain an individual and its authority to extend that

detention beyond six months. The initial detention relies on the subjective judgment of the

detaining authority, whereas the continuation of detention must be assessed objectively,

based on relevant evidence and information presented. Furthermore, the Court emphasized

that the authority cannot make this determination without allowing the individual an

opportunity to address or refute the evidence, either through explanations or by submitting

additional materials.

Because of infinite new situations demanding solution in a society in flux, often the trial and

error method may have to be adopted to deal with cases. Judiciary has the advantage of

playing a more constructive role, as very often it is not cribbed or confined by pre-established

notions or case law. The trend of recent cases shows that the Court is taking good advantage

of this favourable position. This is the reason which has persuaded the authors of this project

to discuss a subject which is ordinarily considered of comparatively minor importance, as the

exercise of such powers normally do not attract the public gaze.

3
 ADMINISTRATIVE POWERS AND FUNCTIONS OF HIGH COURTS

The Constitution grants significant administrative powers and responsibilities to the Courts.

Article 227 specifies that each High Court has supervisory authority over all courts and

tribunals within its jurisdiction. In addition to this overarching authority, the High Court can

request reports from these courts, establish general rules, and set guidelines for managing

their practices and procedures. It can also dictate the formats for maintaining records, entries,

and accounts by the officials of these courts. The supervisory authority of the High Court, as

outlined in this Article, encompasses both administrative and judicial aspects.2

The purpose of this Article is to ensure that the High Court is accountable for the overall

administration of justice within the state. It grants the High Court an expansive reserve of

judicial authority that can be activated whenever the Court deems it necessary to do so. 3 In

the exercise of the powers conferred under the Article, the High Court exercises effective

administrative control over all courts and tribunals. The tribunals will include many courts of

special jurisdiction, as industrial tribunals, election tribunals.

According to Article 233, the Governor of each state is responsible for the appointment,
“

posting, and promotion of district judges, and this process must be conducted in consultation

with the High Court of that state. Under Article 234, the Governor of the state is responsible

for appointing individuals, other than district judges, to the state’s judicial service. This

process must follow rules established by the Governor and occurs after consulting with both

the state Public Service Commission and the state High Court. Article 235 grants the High

Court authority over district courts and their subordinate courts, including responsibilities for

2
Bhataraju v. Hon’ble Judges of the Madras High Court and Others; AIR. 1955 SC 233: [1955] SCR 1104.
3
Jodhey and Others v. State; AIR 1952 All. 788.

4
the posting, promotion, and leave of judicial service personnel in positions below that of a

district judge. ”

The Calcutta High Court has recently interpreted the expression “the control over district

courts and the courts subordinate thereto” in the widest possible sense by holding that

control over a court includes control over the presiding officers of such courts. 4 On a writ by

the aggrieved judicial officer, the Calcutta High Court quashed all the proceedings on the

view that the state government was not, and the state High Court only was, empowered to

take disciplinary action against the judicial officer. The term “judicial service” refers

specifically to a group of individuals appointed to serve in positions such as district judges

and other civil judicial roles that are lower in rank than that of a district judge. 5 Reading

Article 235 in the light of the definition, the interpretation, placed upon the article, by the

Calcutta High Court, appears to be correct. One might, however, object to such wide

interpretation on the ground that control over a court is different from that over persons

presiding over it.

Control over the persons belonging to the judicial service of the state is confined to posting,

promotion and the grant of leave. It does not refer to disciplinary action. One might also

argue, in the light of Article 311, which prohibits the dismissal of an officer by any authority

subordinate to the one appointing him, that the Calcutta High Court’s interpretation is too

wide. Even if one were to place a narrow interpretation, the exercise of control by the High

Court over subordinate courts, including, the district courts, is effective enough to make its

influence felt in determining the integrity, independence and efficiency of the services so as

to have a material effect on the equality of justice administered by those courts. The morale

4
Nripendranath v. Chief Secretary, Government of West Bengal, AIR 1961 Cal. 1: 65 CWN 361.
5
Art. 236 (b).

5
of the services, their sense of responsibility, their satisfaction with the operation of the

conditions of services and an over-all attitude of mind conducive to good and honest work

will very much depend upon the way in which the High Court would treat them in the matter

of transfers, promotions, writing of confidential reports, inspection of work in court

protection from outside criticism and other allied matters. Fair play in the matter of

promotions and postings and the extent of protection granted by higher authorities to the

officers against unwarranted criticism or complaints by the irresponsible section of the public

will go a long way to create proper and healthy conditions and environments in which justice

will be meted to the litigant public honestly, efficiently and fearlessly.

6
The Governor of the state—often the Chief Minister in practice—also has input in this

process. Recently, the Law Commission dedicated sections of its report to evaluating how the

appointment procedure outlined in Article 217(1) functions in reality and proposed

amendments to the Constitution. Shri S. R. Das, a former Chief Justice of India, provided

significant insights during his testimony to the Law Commission.

Various Acts of Parliament and state legislatures have vested extensive powers and functions,

both judicial and administrative, on the High Courts. The High Courts exercise very

important rulemaking powers under various statutes, for instance, the CPC and Indian

Companies Act. The legality or the constitutionality of some of those rules may arise in their

impact on the persons affected by them. Till the passing of the Advocates Act, 1960, High

Courts, under Bar Councils Act, Legal Practitioners Act and Letters Patent, exercised

extensive powers in the matter of enrolment of advocates and pleaders and taking disciplinary

action against them for professional misconduct.

In addition to statutory provisions, conventions and established practices have led to the

involvement of High Courts in consulting on and expressing opinions regarding various

issues that impact government employees and the public. A High Court judge may serve on

an advisory committee or be appointed as an inquiry officer under the Public Servants

Enquiries Act or other departmental regulations. At the President’s request, a High Court

judge may also be tasked with investigating matters of public significance, such as police

actions during riots or the conduct of subordinate officials in their interactions with the

public.

7
It has become an established convention that all functions of the High Court are exercised

and its decisions are announced or communicated, in the name of the CJ and judges of the

High Court. Each High Court has framed rules for the disposal of executive and

administrative business and nearly all important matters are disposed of at judges’ meeting. 6

For instance, the suspension of subordinate judges and district and sessions judges, the

promotion of subordinate judges and district and sessions judges in cases where it is proposed

to pass over an officer and recommendations for the grant of pensions to district and sessions

judges and subordinate judges are matters which are considered and disposed of at judges’

meeting.

The High Court not only holds significant executive and administrative powers independently

but is also frequently consulted by the state government on various matters. Typically,

actions and decisions taken in the name of the Governor are preceded by consultations with

or recommendations from the head of the relevant department. While these actions may

formally appear to be those of the government, they essentially reflect the views of the

department head. In cases falling under the High Court’s jurisdiction, there often exists a

shared interest and accountability between the High Court and the government. Although it

may seem that one can seek remedies against the government, the real issue often lies with

the advice given by the High Court, which the government has accepted and implemented.

The superficial legal structure may remain intact, but the true nature of the dispute and the

parties involved is generally well understood, despite the formalities. The next consideration

involves exploring the administrative and judicial remedies available to individuals who feel

aggrieved by an administrative action or decision made by either the High Court or the

government based on the High Court’s recommendations.

6
Vide Rules and orders of the Punjab High Court Vol. V. Chap. 9, Part. A.

8
By virtue of the special position occupied by the High Court in the governmental

organisation, in its capacity as adviser and consultant it has an overriding influence and

prestige. Conventions have developed that the state government must normally accept and

implement its recommendations—a principle of practice not applicable to or followed in the

case of other heads of department. As explained earlier, all important matters on the

administrative side, whether within the exclusive jurisdiction of the High Court or within its

capacity as advisor and consultant of the department of the executive government carried on

in the name of the Governor under the Constitution, are decided by all the judges of the High

Court at a meeting or by circulating the matter to them.

What recourse does a person have if aggrieved by such an order? This issue was extensively

examined by a Full Bench of the Patna High Court. The Court had denied the application of

Shri B. C. Mitra for enrolment as an advocate. In response, he submitted a writ petition under

Article 226 of the Constitution, seeking a directive for the High Court’s administrative side

to explain why a writ or order should not be issued to mandate his enrolment as an advocate.

The maintainability of the petition and the type of relief the petitioner could receive were

promptly brought into question.

After a consideration of certain English cases, the following propositions of law were laid

down:

(1) A Bench of the High Court has no jurisdiction to issue any writ or direction or order

to the High Court. It is incorrect to assert that a High Court can issue a writ or order to

itself to annul a decision it has made. Whether the High Court acts in a judicial or

administrative capacity in issuing the order is irrelevant. Such a scenario would create

9
 an absurd situation where judges would be required to justify to themselves why they

should not revoke a decision they have already made.

(2) The correct understanding of Article 226(1) is that a judge cannot issue a writ to

another judge of equal jurisdiction to enforce the performance of duties. The very

nature of writs suggests a superior authority. A High Court acting in its administrative

capacity cannot be considered subordinate to the same High Court functioning in its

judicial role.

There is no need to discuss the specifics of the English cases referenced by the Honourable

judges. In this instance, it was established that Mr. Mitra’s application was presented to the

full court, meaning it was shared with all the judges, and each judge noted their opinion on

the appropriate action to take regarding the application in a separate minute.

The question came up for consideration before Bench of the SC, 7 but was not decided. The

petitioner before HC, also appellant before SC, was registrar of the High Court on the

original side. Disciplinary action was taken against him by the Chief Justice in the exercise of

his powers under Article 229. Various contentions were raised on his behalf. One relevant for

our purpose is that Aricle 320 (3) (c) of the Constitution was held not to apply to officers and

staff of the High Court as they do not fall within the expression “persons serving under the

Government of India or the State Government”.

On the point relating to the maintainability of an application for a writ against the action of

the Chief Justice the Court observed:8

7
Pradyat Kumar v. Chief Justice of Calcutta High Court, AIR 1956 SC 285.
8
Ibid at 294.

10
 “The learned judges of the High Court have also dealt at some length with the question

as to the maintainability of an application for a writ in a case of this kind and of the

availability of any remedy by way of a writ against the action of the Chief Justice,

whether administrative or judicial. Arguments in this behalf have also been strongly

urged before us by the learned Advocate-General of West Bengal. In the view,

however, that we have taken as to the contentions raised before us regarding the

validity of the order of dismissal, we do not feel called upon to enter into the discussion

relating to the availability of the writ. We express no opinion on the question so raised.

We consider it, however, desirable to say that our view that the exercise of power of

dismissal of a civil servant is the exercise of administrative power may not necessarily

preclude the availability of remedy under Article 226 of the Constitution in an

appropriate case. That is a question on which we express no opinion one way or the

other in this case.”

Another case which deserves consideration is a decision of a Special Bench of the Calcutta

High Court.9 A writ petition under Article 226 of the Constitution was filed by three lawyers

—a barrister, an advocate, and a solicitor—representing different segments of the legal

profession in the Court. The constitutional validity of Section 23A of the High Court Judges

(Conditions of Service) Act, 1954, was examined. Utilizing his authority under this section,

the President of India issued the Calcutta High Court (Vacation) Order, 1960, which aimed to

regulate the vacation schedule of the High Court. On the substance of the order, Justice P. B.

Mukerjee expressed, with considerable respect, strong criticism regarding its fairness and

appropriateness.

9
Pramathnath Mitter v. Chief Justice of Calcutta High Court; AIR 1961 Cal. 545 (P.B. Mukharjee, M.K. Bose
and D.N. Sinha, JJ.).

11
His Lordship observed:

“Courts and constitutional jurisprudence are powerless to strike down law or order

only on the ground that it violates and flouts public opinion or affected or concerned

opinion.”

As regards the maintainability of the petition, he referred to the observations of the Supreme

Court in Pradyat Kumar’s case and was inclined to the view that a writ petition lay against

the Chief Justice. He however, held the petition not maintainable on the ground that the Court

had no jurisdiction for the respondent, the Union of India, had its seat in New Delhi and the

order was also passed in New Delhi.

Mr. Justice Bose, after evaluating the constitutionality of the order and concluding that it was

beyond the powers granted by the Constitution and Parliament, turned to the issue of whether

the application was maintainable. He refrained from stating whether a writ petition under

Article 226 could be pursued, but indicated that, if it could, this particular case was not

suitable for such a remedy. He agreed with the second objection that the petition could not

proceed unless all judges involved in the Full Court resolution related to the Presidential

order were included as parties in the application.

The third point emphasized by Justice Bose was that the judges on the special Bench, except

for Mr. Justice Sinha, were not qualified to address the matter due to their involvement in the

resolution, which raised concerns about bias. Justice Bose remarked: 10 “now it is a basic

principle of jurisprudence that no one is allowed to be a judge in his own cause. A judge

should have no interest in the litigation. The object of the rule is that not merely the scales be
10
Ibid at 554.

12
held even, it is also that they may not appear to be inclined. Justice must not only be done; it

must manifestly be seen to be done. It is true that if the interest of the judge is not pecuniary

one but is of any other kind, it has to be established that a judge has such a substantial

interest in the result of the hearing as to make it wrong for him to act in the matter.”

After establishing the general principle, it was noted that the previous actions of the judges of

the Court, including those on the special Bench, indicated a consistent opposition to

shortening the Court’s vacation period. For this reason, and in order to maintain the integrity

of the administration of justice, the judges were not in a position to appropriately handle the

application.

Based on the points discussed, it can be argued that a writ under Article 226 is not a viable

remedy. Even if it were, the situation is quite peculiar, primarily because certain judges

cannot review an administrative decision made by the full court in which they participated.

Additionally, no directive can be issued to a court that is not subordinate to the court handling

the writ and partly because of the existence of legal bias which disqualifies a judge in such

circumstances. We proceed to consider this last ground in greater detail.

The leading Indian case which has stood the test of time is Laburi Domini v. Assam Railway

and Trading Co.11 The proposition of law laid down in the case is adequately expressed in the

head-note which runs as under:

“An officer who exercises executive and judicial functions, having himself dealt with a

certain matter and formed and expressed an opinion upon its merits in his executive

capacity, and having further advised and directed litigation in support of this view, is,

11
ILR 10 Cal. 915 (DB).

13
 in consequence, disqualified from dealing as a judge with this same question when it

comes into court and has to be dealt with judicially.”

This was an application under section 25, Civil Procedure Code, 1882 (present section 24,

CPC, 1908) for the transfer of certain appeals. The Hon’ble judges quoted at length from

House Lords case, Dimes v. Proprietors of the Grand Junction Canal12 where a judgment of

the Lord Chancellor of England who was found to hold some shares in the company a party

to the cause before him, was set aside. It was emphasized that the principle “no one should be

a judge in their own cause” must be upheld, and this principle extends beyond situations

where an individual is a direct party to a case; it also applies to instances where they have a

vested interest. This principle was reported and reaffirmed in a Bombay case Aloo Nathu v.

Gagubha Dipsangji.13

The Supreme Court made similar observations in L.S. Raju v. State of Mysore.14 The

appellant was charged with an attempt to murder the Chief Justice of the Mysore High Court.

His appeal against his conviction was transferred to the Bombay High Court from the Mysore

High Court under section 527, Civil Procedure Code. It is a brief judgment but is important

for the principle it has recognized. In another case 15 the Supreme Court set aside a verdict of a

Bar Council Tribunal on the ground of presumed bias, even though proof of actual prejudice

was wanting.

The Supreme Court made some pertinent observations on this aspect of the administration of

justice in Sukhdev Singh v. Chief Justice and the Hon’ble Justices of the High Court at

12
3 H.L.C. 759.
13
I.L.R. 19 Bom. 608
14
A.I.R. 1953 S.G. 435.
15
Manaklal v. Prem Chand, A.I.R. 1957 S.G. 42

14
Patiala.16 The petitioner, Sukhdev Singh, faced charges for publishing a defamatory pamphlet

about the Chief Justice. Contempt proceedings were initiated against him under Article 215

of the Constitution. He then sought to have his case transferred to a different High Court by

applying to the Supreme Court. After determining that the Supreme Court lacked the

authority to transfer such proceedings, Mr. Justice Bose, who authored the court’s judgment,

went on to state: “We consider it desirable on general principles of justice that a judge who

has been personally attacked should not, as far as possible, hear a contempt matter, which,

to that extent, concerns him personally.”

The helplessness of the court in such a situation to save the appearances of administrating

justice found vent in an exhortation which is remarkable for the high ideal judges are to set

before them. The poignancy of the appeal is intensified by the realisation of how difficult it is

for a man made so vulnerable and frail by his creator to rise to the occasion and show the

needed breadth of vision and magnanimity of mind.

The principles mentioned earlier apply to the High Court as a whole. There may be instances

where a specific judge has a personal interest in a case that comes before them. However,

neither the Constitution nor the rules and orders of the High Court allow a litigant to request

the transfer of a case from one judge to another. Of course, the Honourable Chief Justice has

the authority to issue an administrative order if approached for such a purpose. Typically, a

written application or representation is required to invoke these powers. A notable incident

involved some senior lawyers from the Nagpur High Court who sought the significant step of

transferring a case from one Bench to another, resulting in contempt proceedings against

them. If lawyers are exposed to such great risks as one finds in the Supreme Court case, M.J.

16
A.I.R. 1954 S.C. 186.

15
Shareef v. Judges of the Nagpur High Court,17 no sensible litigant will ever dare to make

imputations against a judge of a High Court however good grounds he may have. It is true

that the decided cases draw a line between fair criticism of a judge or his conduct which does

not amount to contempt of court and criticism exceeding those limits. Only the latter is

punishable for contempt. It has been drawn in Andre Paul Terence Ambard v. Attorney-

General of Trinidad.

The Privy Council observed:

“The path of criticism is a public way. The wrong-headed are permitted to err therein

provided that members of the public abstain from imputing improper motives to those

taking part in the administration of justice, and are genuinely exercising the right of

criticism and not acting in malice or attempting to impair the administration of justice,

they are immune.”

It is also true that the Privy Council has drawn a distinction between what amounts to a mere

libel of the judge and what is contempt consisting of scandalising the court itself. In the

Hindustan Times case18, it was noted that while it may be upsetting for any judicial figure to

face public criticism for actions deemed ill-advised or indiscreet outside of their judicial

duties, those in the judiciary should not take offense too easily. If a judge is defamed in a

manner that does not interfere with the administration of justice, they have the standard

defamation remedies available should they choose to pursue them. The same principles have

been recently reaffirmed by the Supreme Court in Brahma Prakash v. State of U. P.19

17
A.I.R. 1955 S.C. 19.
18
AIR 1936 PC 141.
19
AIR 1954 SC 10.

16
These are fine distinctions in law. One is liable to cross the border-line. Whether the border

line has been crossed or not lies in the exclusive and sole determination of the High Court.

These distinctions, therefore, afford little practical guidance to the ordinary litigant. The

Orissa High Court has gone so far as to hold that criticism of a judge in a representation made

to the authorities may amount to contempt.20

The path of making submissions, oral or written, for the transfer of a case from one judge to

another is always fraught with danger. Section 25, Civil Procedure Code, provides a remedy

for the transfer of a case from one High Court to another where the court is presided over by

a single judge, who may happen to be interested in the case coming up before him. It does not

apply to a High Court which has more than one judge. The procedure is also cumbrous. In

criminal cases, the remedy provided by section 527, Criminal Procedure Code is fairly

effective. It confers very wide powers in the Supreme Court to transfer cases not only from

one High Court to another but also from one subordinate court to a court subordinate to

another High Court. Incidentally, the difference emphasises the futility of instituting a civil

suit in a subordinate court against any administrative act or a decision of the High Court to

which such Court is subordinate.

Though the court is different and a suit may technically lie but it might be too much to expect

a subordinate judge to take an impartial and independent view reflecting upon the propriety

or bonafides of the conduct of the High Court as a whole in the exercise of its administrative

power or against a particular judge. After all the human element can never be completely

eliminated from any activity, whether judicial or administrative. No one can claim to be free

from weaknesses of body, mind and heart, inherent in the man’s organism. In legend sages

and seers are depicted as having fallen from high standards of conduct and even angels are
20
State v. Nityananda Mahapatra, AIR 1960 Orissa 132.

17
stated to have fallen from grace. It is this basic trait of human nature which has been adopted

in the administration of justice by following the maxim that “no one can be a judge in his

own cause”.

If the perspective that no writ can be issued against an action or decision of the High Court is

accepted, then the issue of transferring proceedings from that High Court to another becomes

irrelevant. It is established law that a case lacking jurisdiction in the court of origin cannot be

transferred under Section 24 of the Civil Procedure Code.21

The fundamental tenet of a democratic society is that it operates under the rule of law rather

than the rule of individuals. Similarly, a core principle of all legal systems is that every

wrongdoing has a corresponding remedy. Paradoxically, there exists a realm of government

activity where these two essential principles do not apply. It is particularly surprising that

such absolutism is evident within one of the three branches of government—specifically, the

judiciary, which plays a crucial role in a written constitution. While we may expect judges to

embody fairness and justice both in and out of the courtroom, the warning from Lord Acton,

stating that power tends to corrupt and absolute power corrupts absolutely, holds true

universally.

A. DEPARTMENTAL REMEDIES

It is accurate that there are no departmental remedies available against the administrative

decisions of the High Court. While the government is technically the appointing authority for

gazetted officers in the judicial department, no appeal can be made to the government

regarding its own decisions that are based on recommendations from the High Court. The

High Court has complete and absolute authority over its officers and staff. According to the
21
See A.I.R. Manual Vol. II, p. 1217 and the case cited therein.

18
Constitution and established rules, there is no provision for representation or appeal to any

other person or authority. With the decentralization of power and the establishment of a

democratic framework, the departmental remedies available to government employees have

been significantly reduced. Previously, under the Government of India Act, 1935, both before

and after 1947, until the Constitution came into effect, considerable review powers to ensure

justice in specific cases were held by the Governor-General or a Governor. Section 241(5)

specified that no rules made under this section and no Act of any legislature should be

interpreted as limiting or diminishing the authority of the Governor-General or a Governor to

address the cases of individuals serving in a civil capacity in a manner they deemed just and

equitable.

Whatever the actual practice may be, the Centre cannot interfere with the administrative

decisions of the state government in the matter of its civil service. Of course, Article 311

provides a safeguard where the proposed punishment is reduction in rank, removal or

dismissal. That Article has, however, a very limited application. It gives only a particular

right of procedure. It is not open to any court to review a departmental decision on the merits.

It does not also cover instances of other forms of punishment which, under the departmental

rules, are many and do often entail serious consequences to the government servant in the

matter of future promotions and getting adequate emoluments.

B. SUGGESTIONS

We have clarified, referencing various rulings from the High Court, that a writ cannot be

issued against the High Court itself or its judges. Article 139 allows Parliament to grant the

Supreme Court the authority to issue directions, orders, or writs for purposes not specified in

19
Clause 2 of Article 32. A parliamentary act that outlines the specific circumstances under

which the Supreme Court can issue writs would be a practical solution.

A similar provision could be added to Section 25 of the Civil Procedure Code. Civil

procedure is addressed in Article 13 of the concurrent list in the Seventh Schedule of the

Constitution, while criminal procedure is covered in Article 2 of the same list. If Section 527

of the Criminal Procedure Code is constitutionally valid, then there should be no valid

objection to a comparable provision in the Civil Procedure Code. Generally, it is believed that

from a human welfare perspective, criminal proceedings carry greater significance than civil

ones.

However, this is not the current reality. In the past, imprisonment was seen as disgraceful,

and people went to great lengths to avoid it. Following Mahatma Gandhi’s satyagraha

movements and the expansion of penal administrative laws, that fear has diminished. A civil

20
proceeding can be just as beneficial or detrimental to an individual as a criminal proceeding.

There is no longer a compelling reason to grant the Supreme Court special powers regarding

criminal matters as opposed to civil ones, especially given the evolving circumstances.

The Supreme Court has stated in various rulings that it holds the authority to exercise judicial

oversight over all courts, tribunals, and subordinate judicial bodies in India. Article 141

specifies that the law established by the Supreme Court is binding on all courts within the

country. Article 140 allows Parliament to create laws that confer supplementary powers to the

Supreme Court, provided they do not conflict with any constitutional provisions, to enable

the Court to exercise its jurisdiction more effectively.

As the apex court in India, the Supreme Court could be granted sufficient authority to oversee

and direct all lower courts. It is widely recognized that judicial oversight alone is often

insufficient to ensure justice is administered efficiently, independently, and impartially. The

magistracy in a state has long been under the judicial oversight of the State High Court. Yet,

it is well-known that magistrates often cannot perform effectively due to the executive

powers of the State Government concerning their service conditions, transfers, promotions,

and other administrative matters.

The constitutional mandate for separating the judiciary from the executive acknowledges this

fundamental reality. A strong administrative approach by the Supreme Court could establish

consistency in the administration of justice across India. Many existing discrepancies could

be resolved swiftly. Article 140 is sufficiently broad to allow Parliament to designate the

Supreme Court as the leading authority in all judicial matters.

21
Additionally, Parliament could explicitly authorize the Supreme Court to serve in an advisory

role to the Government of India regarding high-level judicial personnel issues. For instance,

the Supreme Court might be granted a role in the processes related to the removal of a High

Court judge. Currently, both the Government of India and the Supreme Court find themselves

in a position of powerlessness in this regard.

22
 ADMINISTRATIVE FUNCTIONS OF THE SUPREME COURT

A. THE ISSUE OF JUDICIAL APPOINTMENTS

The process of appointing judges is crucial for maintaining judicial independence, which

necessitates that judges can administer justice without facing any form of direct or indirect

interference. The principle of judicial independence aims to guarantee that judges can deliver

justice fairly and without bias. This autonomy is closely linked to how judges are appointed,

as the appointment system significantly impacts their integrity, impartiality, and

independence. Legal experts and scholars widely acknowledge that public trust in the

judiciary is vital for preserving this independence. A key factor in fostering public confidence

is ensuring that the appointment of judges is conducted openly and transparently. This

transparency relies heavily on the mechanisms established for judicial appointments, which

play a critical role in selecting candidates with the necessary professional skills and attributes

required for judges in a truly independent judiciary.

The necessity for transparency in appointing members of the superior judiciary has been a

topic of ongoing discussion across various platforms, garnering support from both legal

experts and the general public. Often, the superior judiciary has faced criticism for being an

elite, aristocratic, and nepotistic entity since independence, with a lack of transparency in its

appointment procedures. This has created a system where ordinary citizens are largely

excluded from competing with their privileged counterparts. Despite these criticisms, the

superior judiciary has positioned itself as a proponent of transparency, advocating for clear

practices in the appointments and decision-making processes of other government

institutions. However, it has fiercely resisted similar calls for transparency regarding its own

judicial appointments. The Supreme Court of India, in the matter of Kranti Associates (P)Ltd.

23
v. Masood Ahmed Khan22, ratio of which was also reiterated in Manohar v. State of

Maharashtra23, the necessity for judicial, quasi-judicial, and administrative authorities to

provide reasons in their decision-making processes has been emphasized as essential for

ensuring judicial accountability and transparency. The court noted that “the prevailing

judicial approach in nations dedicated to the rule of law and constitutional governance

favors reasoned decisions grounded in relevant facts. This practice is fundamental to judicial

decision-making, reinforcing the notion that reason is integral to justice.”

24

25

22
(2010) 9 SCC 496.
23
(2012) 13 SCC 14.
24
(2013) 10 SCC 359.
25
(1993) 4 SCC 441

24
confidentiality of these minutes, the court emphasized the need for transparency in the

judicial appointment process. Consequently, the recorded information would only be

accessible within the collegium and not available to the public.

“26

During the proceedings, the court indicated that it does not require a transparency certificate

from the petitioner, suggesting that the matter could be resolved through a constitutional

amendment. However, it’s important to note that the establishment and functioning of the

collegium system is a product of judicial interpretation rather than a constitutional

amendment, as the term “collegium” does not appear in the Indian Constitution. These cases

and their corresponding observations highlight the judiciary’s mixed stance and hesitance

toward increasing transparency in judicial appointments.

From the discussions and judicial precedents, two key conclusions emerge: first, the

appointment process in the higher judiciary lacks transparency, and second, the judiciary is

notably resistant to lifting the curtain of secrecy surrounding the appointment of judges.
26
W.P.No.36789/2014 (GM-RES-PIL)

25
Without an official communication from the collegium chairs justifying this secrecy, those

outside the collegium are left to speculate, forming their own educated guesses about the

opaque process.

To prevent political interference and based on the belief that judges are best equipped to

evaluate the qualifications of prospective judges, the Supreme Court asserted its authority

over judicial appointments in 1993 through its decision in the Second Judges’ Case 27. This

ruling established the Collegium system and nullified the executive government’s role in

appointing judges, as previously outlined in the First Judges’ Case 28. The procedures and

practices of the judicial Collegium were further detailed in an advisory opinion in the Third

Judges’ Case29, which also affirmed that no appointments could occur without the

Collegium’s agreement.

The Collegium, which includes the Chief Justice and the next four most senior judges, has

faced significant criticism for its opaque operations, inefficiency, nepotism, arbitrariness,

27
Supreme Court Advocates On Record Association v. Union of India (1993) 4 SCC 441
28
S. P. Gupta v. Union of India 1981 Supp (1) SCC 87
29
S. P. Gupta v. Union of India 1981 Supp (1) SCC 87

26
inability to address the growing number of vacancies in the higher judiciary, and, crucially,

its lack of accountability.

The Union Government expressed surprise at this ruling, which reinstated the Collegium

system, highlighting its issues of opacity and lack of transparency. Notably, the judgment

also acknowledged the urgent need for reforms within the Collegium and suggested

implementing suitable measures to enhance its functioning. In a separate directive issued in

December 2015, the Court established specific guidelines to improve the Collegium system

and instructed the Union Government to complete a revised memorandum of procedure

(MoP) for judicial appointments. The order suggested that the following factors be

considered when revising the “MoP:

27
Recent developments concerning the Memorandum of Procedure for appointing judges

underscore the ongoing impasse between the government and the judiciary regarding judicial

appointments, a situation that has persisted since the Supreme Court annulled the National

Judicial Appointments Commission and reinstated the Collegium system. With both branches

at an impasse over appointments, and given the current lack of transparency in the higher

judiciary’s appointment process, there appears to be minimal chance for improvements in a

system that remains cloaked in secrecy—even if the Union Government were to act on

recent”requests to finalize pending judicial appointments. Without established criteria for

selecting judges or a systematic evaluation process for proposed candidates, inefficiencies are

likely to continue. While the guidelines for the new process were developed with input from

various stakeholders, there has been no public consultation regarding the draft Memorandum

of Procedure, which is rumoured to be nearing completion by the Centre.

The Campaign for Judicial Accountability and Reforms has reached out to both the Union

Government and the Chief Justice of India, advocating for a public consultation on the new

draft of the Memorandum for appointing judges to the Supreme and High Courts. They

28
submitted a draft memorandum that includes various clauses designed to promote

transparency and ensure the selection of not only the most qualified candidates but also those

who resonate with the egalitarian values enshrined in the Constitution, possessing sensitivity

toward the issues faced by ordinary citizens. Some contentious provisions currently under

negotiation include:

1) Merit versus Seniority -

The Union Government and the Collegium have differing views on prioritizing merit over

seniority in promotions and appointments. The government argues for merit to take

precedence, suggesting that while seniority is relevant, it should not overshadow the merit

and integrity of a candidate. The revised Memorandum proposes performance evaluations as

a criterion for appointments and promotions, enabling junior judges to surpass seniors for key

positions. The Collegium, however, maintains that prioritizing seniority is essential to ensure

fairness and prevent nepotism in promotions.

2) RTI Scrutiny -

While the Right to Information Act, 2005 does not exclude judicial appointments from its

scope, the Union Government has indicated that the revised draft does not incorporate

provisions for RTI compliance, suggesting that transparency can be achieved without such

measures. This position contradicts their previous stance advocating for transparency under

the RTI framework during critiques of the Collegium system. Recently, on August 17, 2016,

the Supreme Court referred the matter of whether RTI disclosures regarding judicial

appointments interfere with judicial independence to a constitution bench.

29
 3) Committee and Secretariat Control -

The Supreme Court’s December 2015 directive recommended establishing a committee to

assist the Collegium in assessing candidate suitability. Although the Collegium dismissed the

necessity for such a committee, it is open to the idea of a permanent secretariat, provided it

operates under the Chief Justice’s authority. The Union Government, which initially

proposed this secretariat to maintain a judge database and facilitate Collegium operations,

wants it to fall under the Law Ministry’s direct control.

4) Right to Reject Recommendations -

Current law mandates that the Collegium’s recommendation must be accepted if reiterated.

However, the revised Memorandum introduces a provision allowing the government to reject

a recommendation in the “national interest,” even after a reiteration by the Collegium. This

clause was unanimously rejected by the Collegium, which viewed it as an intrusion into

judicial independence. The Union Government has insisted on retaining the ability to dismiss

Collegium recommendations based on “national security” and “public interest,” although a

new draft stipulates that the government will inform the Collegium of its reasons for any

rejection. Since India lacks a formal national security doctrine, the Collegium opposes the use

of vague terms that could be applied arbitrarily.

5) Collegium’s Requirement for Written Justifications -

A proposed requirement for the Collegium to document the reasons for not promoting a

senior judge to the Supreme Court has faced opposition for being overly burdensome and

counterproductive. The Collegium is reluctant to put such reasons in writing, fearing it might

adversely affect future opportunities. They argue that highlighting exceptional merit is

adequate, while the Union Government insists that written justifications are essential to

30
prevent favoritism and enhance transparency in the appointment process. This lack of

agreement has led the Supreme Court Collegium to reject several clauses in the revised draft

of the Memorandum of Procedure, which has since been returned to the Law Ministry for

amendments. Reports indicate that the Government has chosen not to accept many significant

recommendations and observations made by the Collegium regarding the Memorandum.

Critics have accused the Union Government of creating a stalemate in the judicial

appointments process, suggesting that it seeks to gain a veto power over appointments,

thereby attempting to bypass established judicial rulings and norms. Conversely, the Union

Government contends that it aims to revise the Memorandum to improve transparency and

build trust in the judicial appointments process. The ongoing delays in finalizing the

Memorandum are hindering the appointment process, resulting in persistent vacancies in

High Courts nationwide, as the Government has opted not to act on new recommendations.

After the Centre rejected the Collegium’s concerns regarding the political executive’s veto

power over appointments, the Supreme Court warned that it might need to intervene

judicially to resolve the deadlock caused by the Government.

B. ADMINISTRATIVE DECISIONS OF A CHIEF JUSTICE- OPEN TO CHALLENGE?

Article 124 (1) of the Constitution of India declares that, “There shall be a Supreme Court of

India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger

number, of not more than seven other Judges.” [Which has been increased to 30 vide

Supreme Court (Number of Judges) Amendment Act, 2008]

In 1950, the Supreme Court in Bharat Bank Ltd. v. Employees declared, “In other words, the

foundations of this republic have been laid on the bedrock of justice. To safeguard the

foundations so that they may not be undermined by injustice occurring anywhere this Court

31
has been constituted.” The Constitution serves as the highest law of the land in this country.

In the landmark case of Kesavananda Bharati v. State of Kerala, the Supreme Court

established that the supremacy of the Constitution is a fundamental aspect of the Indian

Constitution. This supremacy is safeguarded by an independent judiciary, which has the

authority to interpret the framework that delineates the distribution of powers.

In a recent order in the matter of Campaign for Judicial Accountability and Reforms v Union

of India and another30, five Judges Bench held that, “There can be no doubt that the Chief

Justice of India is the first amongst the equals, but definitely, he exercises certain

administrative powers and that is why in Prakash Chand (supra), it has been clearly stated

that the administrative control of the High Court vests in the Chief Justice alone. The same

principle must apply proprio vigore as regards the power of the Chief Justice of India. On

the judicial side, he is only the first amongst the equals. But, as far as the roster is

concerned, as has been stated by the three-Judge Bench in Prakash Chand (supra), the Chief

Justice is the master of the roster and he alone has the prerogative to constitute the Benches

of the Court and allocate cases to the Benches so constituted.”

Despite being granted authority through the order dated November 10, 2017, the Chief

Justice of India does not have unrestricted or arbitrary administrative powers to form court

benches and assign cases to them. While exercising these administrative functions within the

constitutional framework, the Chief Justice is equally subject to the Rule of Law. This notion

is well-established in legal philosophy. A core tenet of our constitutional framework is that

“No one is above the law,” a principle articulated by Thomas Fuller, a 17th-century English

historian and cleric, and consistently reinforced by the Supreme Court in its rulings.

Consequently, the Chief Justice is also bound by legal constraints.

30
(1973) 4 SCC 225.

32
The Rule of Law stands as a fundamental principle of the Constitution. It signifies a rejection

of arbitrary governance, or “Rule of Jungle,” in relation to individuals and the state. This

doctrine acts as a vital tool to regulate and limit administrative discretion, providing a

standard against which all administrative actions can be evaluated. In a notable dissent in the

case of ADM, Jabalpur v. Shivakant Shukla, Justice H.R. Khanna emphasized, 31, “Rule of

law is the antithesis of arbitrariness. [It is accepted in all civilized societies.. it has come to be

regarded as a mark of free society… it seeks to maintain a balance between the opposing

notions of individual liberty and public order.]” He warned, “Absence of Rule of Law would

nevertheless be absence of Rule of law even though it is brought about by a law to repeal all

laws.”

A closer look at the current operations of the Supreme Court reveals that the Chief Justice has

been exercising his powers in a rather opaque and perplexing manner. Recent events show

that the Constitution Benches are formed with select judges while excluding others. It is clear

that every Supreme Court judge, as defined by Article 124, holds equal status. There should

be no question about an individual’s qualifications for selection. My intention is not to

criticize any specific judge, but it is evident that several senior judges, as well as those

recognized for their expertise in particular areas of law, are being left out of these Benches.

For instance, the Five Judge Bench that issued the order on November 10, 2017, was
“

constituted by the Chief Justice without including the most senior judges, such as J2, J3, J4,

J5, J7, J9, J11, J13, J14, and J15. Even if the Chief Justice believed that the bench led by

Justice Chelameswar and Justice Nazeer should not have been the one to refer the Writ

Petition to the five most senior judges, he should have established a bench with those judges
31
(1976) 2 SCC 521.

33
himself. The order from the Chief Justice’s bench emphasizes the importance of “judicial

discipline and decorum” and the “conventions” upheld by the Court. Those very principles

should compel the Chief Justice to avoid selective inclusion when forming benches. If seven

of the most senior judges presided over the case involving Justice Karnan, the same approach

should have been applied in the Writ Petition related to the November 10, 2017 order.”

The case of Justice K.S. Puttaswamy (Retd.) v. Union of India 32, commonly referred to as the

Aadhaar case, presents an intriguing situation. This Writ Petition was thoroughly examined

by several benches, including Justice Chelameswar and Justice Bobde, along with other

judges, starting from 2013. Notably, on August 11, 2015, a bench consisting of Justice

Chelameswar, Justice Bobde, and Justice Nagappan decided to refer the matter to a larger

bench. Chief Justice Khehar appropriately reconstituted the bench on July 18, 2017, including

himself, Justice Chelameswar, Justice Bobde, Justice Chandrachud, and Justice Nazeer, and

this bench subsequently referred the issue of whether privacy is a fundamental right to a nine-

judge larger bench. This larger bench also included Justice Chelameswar, Justice Bobde, and

Justice Nazeer.”

The privacy issue was resolved on August 24, 2017, and Justice Nariman, in his judgment,

directed that the case be returned for merit-based adjudication to the original three-judge

bench. However, there was a delay in scheduling hearings for the Aadhaar matter, prompting

repeated requests from Mr. Shyam Diwan, Senior Advocate representing the petitioners, to

Chief Justice Misra. Eventually, Chief Justice Misra formed a five-judge bench as

recommended by the Attorney General, but many of the previously involved judges were not

included. The newly constituted bench consisted of Chief Justice Misra, Justice Sikri, Justice

Khanwilkar, Justice Chandrachud, and Justice Bhushan.

32
1964 1 SCR 332.

34
35
A robust and independent judiciary is a fundamental aspect of the Constitution. Judges have a

crucial responsibility to uphold this principle. We find ourselves in an unprecedented

situation where the judiciary is being undermined from within, rather than from external

36
forces, which could leave lasting damage to the institution. It is essential for the judiciary to

avoid creating

37
 JUDICIAL ACCOUNTABILITY FOR ADMINISTRATIVE ACTIONS

AND THE WAY FORWARD

It is widely recognized that for the judiciary to be independent and impartial, it must have a
“

certain level of immunity. The purpose of this judicial immunity is clear: “Judges should be

able to apply the law with the backing of the legal system, exercising their roles

independently and freely, without bias and without fear. This legal protection is not intended

for the benefit of a corrupt or malevolent judge; rather, it serves the public interest by

ensuring that judges can carry out their duties with autonomy, without the threat of

repercussions.”33. The principle of judicial independence is essential to the rule of law and,

by extension, to a liberal democratic government. This principle is not designed to benefit

33
Bradley v. Fisher 80 U.S.335, 352 (1872) and 800 U.S. (13 wall) 335 (1871) and 20 L.Ed. 646 (1872).

38
judges personally; instead, it ensures fair and impartial hearings, as well as strict adherence to

the rule of law.

In its basic interpretation, judicial independence means that judges should have job security

and that their working conditions and status cannot be changed to their detriment. The

Constitution of India provides these guarantees to uphold judicial independence. To reinforce

judicial independence as a means of upholding the rule of law, it is crucial to shield judges

from any pressures exerted by other branches of government, as well as from parties—public

or private—whose cases they are tasked with resolving. Judges must prioritize the interests of

justice, rather than aligning with the ruling party or individual interests. However, it is

important to understand that judicial independence should not be confused with absolute

power. Judicial accountability and judicial independence are inherently interconnected.

Accountability operates within a framework that emphasizes integrity, which is crucial for

the effective functioning of any authority given responsibility. It involves promoting

transparency and subjecting the judicial system to rigorous public scrutiny to prevent any

form of judicial misconduct. Judicial independence cannot exist in a vacuum; the public’s

trust can only be established in a judiciary that is held accountable. A heightened perception

of judicial accountability, closely tied to personal responsibility, ultimately influences the

acceptable level of judicial independence. Therefore, judicial accountability is essential for

strengthening independence and ensuring the judiciary operates effectively. In essence,

independence and accountability are two aspects of the same principle and support one

another.”

Several factors have been identified as contributing to the shortcomings in judicial

accountability, one of which is the exceedingly high threshold required for the impeachment

39
of judges. The existing mechanism for holding judges accountable is considered impractical.

According to the Indian Constitution, the only method available for the removal of members

of the higher judiciary, including Chief Justices and judges of the Supreme Court (SC) and

High Courts (HCs), is through impeachment. While many view impeachment as ineffective,

it is essential to first examine the constitutional provisions surrounding it. Under Articles

124(4), 85(5), and Article 1(a) and (b), impeachment can only occur on the grounds of

established “misbehaviour or incapacity.”

The word misbehaviour is defined under Section 2(j) of the Judges (Inquiry) Bill, 2006 so as

to mean;

A. Wilful or persistent conduct which brings dishonour or disrepute to the judiciary;

B. Wilful or persistent failure to perform the duties of a judge;

C. Wilful abuse of judicial office;

D. Corruption;

E. Lack of Integrity;

F. Committing an offence involving moral turpitude;

G. Violation of Code of Conduct being the guidelines issued by the National Judicial

Commission (NJC) under Section 36(1) and till they are issued, ‘the Reinstatement of

Values of Judicial Life adopted by the Chief Justice’s Conference of India, 1999, as

provided under Section 36(3).

Incapacity refers to a physical or moral inability that is either permanent or likely to become

so. The term “impeachment” originates from Latin, suggesting a notion of being trapped or

caught, and has connections to the modern French verb “empecher” (to prevent) and the

English word “impede.” It is believed that the concept of impeachment was developed in

40
Britain, with the process first utilized by the English Good Parliament in the late 14th

century.

Generally, impeachment is a formal procedure through which an elected official is charged

with unlawful conduct, potentially leading to their removal from office. This process has seen

notable success only in the United States, where 13 federal judges have been impeached to

date. The Supreme Court has determined that impeachment, unlike in the U.S., is not a

political issue, as the proceedings before the Inquiry Committee are judicial in nature and

subject to judicial review. According to the Judges Inquiry Act of 1968, a complaint against a

judge must be initiated by a resolution signed by either 100 members of the Lok Sabha or 50

members of the Rajya Sabha, directed to their respective presiding officers.

An inquiry committee consisting of three members is formed: two judges, one from the

Supreme Court (SC) and the Chief Justice of India for a High Court judge, or two Supreme

Court judges for a sitting apex court judge. This committee conducts investigations before

making any recommendations to the legislature. If the committee suggests moving forward

with impeachment, the matter is discussed in both Houses, and the judge in question is

allowed to defend themselves against the allegations. Following the debate and the judge’s

response, the Houses vote on the motion, which requires a two-thirds majority in both. This

entire process must be completed within a single legislative session. Once the resolution is

passed, it is sent to the President, who then issues the order for removal. However, it would

be a mistake to assume that the judiciary is entirely free from corruption. A significant flaw

lies within the impeachment process itself, which is undeniably lengthy and complicated,

leading many to view it as a complete failure.

41
The issue of judicial accountability has been exacerbated by the Supreme Court’s ruling in

the Veeraswami Case34, which established that no High Court or Supreme Court judge can be

investigated for criminal offenses, including corruption, without prior written consent from

the Chief Justice of India. This has led to a scenario where no sitting judge has faced

investigation in the 15 years following that decision, despite widespread public awareness

and complaints regarding corruption within the judiciary. Law enforcement agencies hesitate

to seek the Chief Justice’s permission for investigations unless they possess irrefutable

evidence, which is difficult to obtain without first conducting an investigation. Moreover, it is

unlikely that the Chief Justice would grant such permission, as it could tarnish the reputation

of the entire judiciary.

The Right to Information Act, 2005 was enacted in India to enhance transparency in

governance. The Act mandates that every public authority must provide access to its

documents and proceedings. It defines public authority as any entity established under the

Constitution or any government law, which includes the judiciary. However, the judiciary is

attempting to distance itself from the provisions of the RTI Act. The Supreme Court has

stated that the Chief Information Commissioner cannot compel it to disclose information and

has suggested amendments to the Act. Furthermore, it has indicated that any information

withheld by the Chief Justice of India on the grounds of judicial independence will not be

disclosed. Thus, while the RTI Act aims to ensure access to information, it also contains

exemptions under Sections 8, 9, 11, and 24.

The Constitution does include provisions for judicial accountability. According to Article

125(4), a judge can be impeached and removed from office by Parliament if there is

established proof of misbehaviour or incapacity. Additionally, Article 124(5) grants

34
K. Veeraswami vs Union Of India, 1991 SCR (3) 189.

42
Parliament the authority to enact laws governing the procedure for presenting such addresses

and for investigating and substantiating claims of a judge’s “misbehaviour” or “incapacity.”

The Judges Inquiry Act, 1968 where reference procedure could be initiated upon a ‘Notice of

Motion’ praying for removal of a Judge signed by:-

A. In case of a notice given in the “House of the People” by not less than 100

members; or

B. In case of a notice given in the “Council of States” by not less than 50 members.

One significant flaw in the 1968 Act was the absence of a “permanent authority” to address

instances of judicial misbehaviour. The impeachment process has been criticized for being

lengthy, impractical, and potentially politicized. In its 195th report, the Law Commission of

India recommended the creation of a statutory committee specifically tasked with handling

cases of judges’ misconduct. The judiciary contends that any external body with disciplinary

authority could compromise their independence, which is why they have proposed an in-

house mechanism for investigating corruption. This was part of the Judges (Inquiry) Act

Amendment Bill of 2006, which suggested forming a National Judicial Council made up of

the Chief Justice of India, two senior-most Supreme Court judges, and two Chief Justices

from High Courts to investigate allegations.

However, the challenge with this internal procedure is that judges often view themselves as

part of a close-knit community and may be reluctant to take action against one another. A

contentious point in Section 33 is its stipulation that information related to a complaint cannot

be disclosed to anyone, except as directed by the Council, which hinders the ability to

publicize any charges.

43
A potential solution to enhance judicial accountability could be the establishment of an

external institution to ensure the smooth administrative functioning of the courts. Various

countries have created such institutions, albeit under different names. Sweden was one of the

pioneers in this regard, as its 1809 Constitution established a Parliamentary Ombudsman.

This office, set up in 1816, has the authority to hear complaints against police officers,

prosecutors, judges, and prison officials, encompassing all court-related matters. According

to noted author Welter Sellhorn, most Swedish judges have a positive attitude towards the

Ombudsman, and during his survey, not a single judge expressed any opposition to the

institution.

44