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Judgment
K. Sampath, J.—The prayer in the writ petition is for the issue of ""a writ of mandamus directing the respondents to list out the batch of writ
petitions, challenging the vires of G.O Ms. No.628, Home (Court - II) dated 30.4.1997 of the Government of Tamil Nadu and post them before
any Hon''ble Division Bench of this Hon''ble Court not consisting of the first respondent herein and dispose them at the earliest date possible"". The
Registry after scrutiny returned the papers raising an objection regarding the maintainability of the writ petition on the following terms.
It may be stated how the writ petition is maintainable against the Hon''ble the Chief Justice in judicial capacity. It may be stated as to how and in
what way the fundamental right of the petitioner is affected by the pendency of cases.
The Counsel for the writ petitioner
The Counsel for the writ petitioner represented the papers with the following endorsement:
The writ petitioner alleges that the process to dispense the justice is being delayed by the first respondent and the writ petition is moved on public
interest and hence the first respondent has not been conferred any immunity. The rulings of Supreme Court in 1996 SCC (Civil) 1338 for speedy
trial under Article 21 of the Constitution of India is a matter of public interest. The petitioner''s deprivation of fundamental rights need not be
examined for this writ petition. This writ petition is, therefore, maintainable"".
After this, a letter was addressed to the Additional Registrar (Judicial) High Court Madras, bearing dated 15-7-1998 and the letter is as follows:
Sir,
Ref. W.P. SR. No. 47953 /98 dated 14.7.1998.
The above writ petition has been filed against Mr. Justice. M. S. Liberhan, the Hon''ble the Chief Justice, High Court, Madras, and the Registrar,
High Court, Madras, being the first and the second respondents respectively seeking reliefs to restrain the first respondent thereon from enquiring
into the batch of writ petitions challenging the vires of G.O.Ms. No. 628 Home (Court-II) dated 30.4.1997 of the Government of Tamil Nadu,
relating to constitution of three Special Courts to exclusively try certain criminal cases. The said writ petition was returned on 14.7.1998 by the
A.E of the Registry and the same has been represented on 14-7-1998 itself. The petitioner files an additional affidavit in the above said W.P. and
the W.P. is maintainable in view of the ruling of this Hon''ble Court in the following cases.
1991-2 L.W. 80(FB);
1991 Writ L. R. 769 (DB);
1994 Writ L.R. 542 (FB);
1994 Writ L.R. 545 (FB);
When I contacted A.E. of the Registry, I could not get a satisfactory reason in not posting the writ petition before the Hon''ble Bench either for
admission or for maintainability. I, therefore, request that the Registry may please be instructed to post the above writ petition either for admission
or maintainability tomorrow before the Hon''ble Bench of this Hon''ble Court, failing which I have no other alternative except to bring the above
facts to the knowledge of the Hon''ble Chief Justice of India, Supreme Court New Delhi.
Yours sincerely, sd/
(V. JAYAPRAKASH)
It is stated that a copy of the letter has been marked to the Hon''ble the Chief Justice, Supreme Court of India, New Delhi.
Thereafter, the papers were circulated before me and the case was heard on 16.7.1998, 17.7.1998 and 20.7.1998. On 16.7.1998 when the
matter was taken up Mr. M. Muthusamy, Learned Counsel appearing for Mr. V. Jayaprakash, counsel for the petitioner, raised a preliminary
objection as to the propriety of a single judge hearing the matter. In support of this preliminary objection, the Learned Counsel relied on the
arrangements for the sittings of the Hon''ble Judges, Appellate side and Original side printed and issued every week by the High Court which in
page 6 paragraph 2 says as follows: (only the relevant parts are extracted.) :-
Urgent motions and admissions are to be posted as follows:
(1) Motions and admissions in writ appeal. L.P. A. D. B., writ petitions (in respect of Pollution Control and PIL), Contempt Appeal, C. M. A.
First Bench.
The Learned Counsel contended that the matter has to go before a Bench"".
Let us dispose of this preliminary objection first. Article 225 of the Constitution confers power of the High Court regarding framing of Rules for
both the Original and the appellate sides. Article 225 runs as follows.
Subject to the provisions of this constitution"" and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred
on that Legislature by this constitution, the jurisdiction of, and the law administered in, any existing High Court and the respective powers of the
judges thereof in relation to the administration of justice in the court including any power to make rules of court and to regulate the sittings of the
court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this constitution.
Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the
revenue or concerning any act ordered or done in the collection, thereof was subject immediately before the commencement of this constitution
shall no longer apply to the exercise of such jurisdiction.
The inherent jurisdiction of the High Court is saved by this provision. G. Hari Prasad, v. Chief Conservator of Forests, Madras, and another
(AIR 1959 Madras 406)
The words power to make rules together with Article 372 (1) save the Rules made by the High Courts, which were in existence at the
commencement of the constitution. (In re Putta Ranganayakulu and others) AIR 1956 Andhra 161 FB). They have the force of law unless ultra
vires the enactment under which they were made.
The constitution Bench of the Supreme Court in State of U.P. v. Butuk Deo Pati Tripathi (1978-2 SCC 102) has held that apart from Article
225, the High Court may derive rule making power from substantive provisions such as Article 235 where the nature of the power conferred by
the Article would include the power to make Rules to regulate the exercise of powers provided.
Order 1 of the Rules framed for the Appellate Side by our High Court provides for constitution of Benches. Order 1 Rule 1(a) framed to govern
proceedings under Article 226 runs as follows.
1 (a) Every petition under Article 226 of the Constitution except that specified in Rule 2 (4) shall be posted before a single judge or a larger
Bench as the Chief Justice may direct"".
Order 1 Rule 2 (4) says that,
every application for a direction, order or writ in the nature of habeas corpus shall be heard and determined by a Bench of two Judges.
Appendix IV has been introduced as the Rules to regulate proceedings under Article 226 of the Constitution. Rule 4 in Appendix IV runs as
follows:
Petition for a direction, order of writ in the nature of habeas corpus shall be posted before a Bench of two Judges. All other petitions shall be
posted before a single judge or a larger Bench as the Chief Justice may direct"".
No doubt, in the arrangements for the sittings of the Hon''ble judges, it is stated that in respect of Public Interest Litigation (PIL), urgent motions
and admissions are to be posted before the first Bench. However, this is subject to the qualification contained in 2 (vii) in bold letters, which is as
follows;
The above arrangements are subject to modification.
The Learned Counsel is unable to point out any order or rule which enjoins the posting of the case only before a Division Bench. Thus, the
preliminary objection cannot be sustained.
Apart from the above, as has been held in the The Mayavaram Financial Corporation Ltd. Mayiladuthurai v. The Registrar of Chits,
Pondicherry (1991 -2 L. W. 80)
It is thus clear from the judgment of the Supreme Court in National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats
Ltd., Assignee), that the rule making power (of the High Court ) u/s 108 of the Government of India Act, 1915 read with the corresponding
provision in the Government of India Act, 1935 and under Article 225 of the Constitution of India remained unaffected and so is the power of the
Hon''ble the Chief Justice to decide who amongst the judges be assigned the work as a judge sitting alone or a judge sitting in a Division Bench of
two or three judges.
It has been held by the Supreme Court in Indermani and others v. Matheshwari Prasad and others (1996-6 SCC 587) that
It is the prerogative of the Chief Justice to constitute benches of his High Court and to allocate work to such benches. Judicial discipline requires
that the puisne judges of the High Court comply with directions given in this regard by their Chief Justice. In fact, it is their duty to do so"".
So much for the present more, later.
The next question relates to the locus standi of the writ petitioner to maintain the writ petition as a Public Interest Litigation. The Learned
Counsel relied on a judgment of the Supreme Court reported in the Janata Dal Vs. H.S. Chowdhary and Others,
It is necessary to refer to the allegations made in the affidavit and the additional affidavit filed by the writ petitioner in support of the writ
petition. In paragraph 4 of the main affidavit, it is alleged as follows.:
The petitioner is not a busy body or a meddlesome interloper to file this writ petition and he is very much interested to see that justice is
dispensed"".
Dealing with locus standi the eminent Jurist Seervai in his treatise on the Constitutional Law of India, Fourth Edition, Volume 2 has observed as
follows.
If at times our courts followed the technicalities of English Law in the past, it is no longer necessary to do so now that those technicalities have
been swept away in the country of their origin. This is all the more necessary because, first, the application for judicial review serves to emphasize
the fact that mandamus, prohibition and certiorari are Public Law remedies. And, secondly, Public Interest Litigation has come to stay once the
three writs are recognised as public law remedies. The one limitation, if limitation it can be called, is mat these remedies are discretionary.
It is now well-established that it is not necessary for a petitioner in a mandamus writ to first show that he has a legal specific right to ask for the
interference of the court as otherwise mandamus would loss its public law character being no more than a remedy for a private wrong"".
Krishna Iyer, J. in Fertilizer Corporation Kamgar Union''s case (AIR 1981 SC 344 =1981-2 SCR 52) observed as follows.
Public Interest Litigation is part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the
judicial doorsteps. The floodgates argument has been nailed by the Australian Law Reforms Commission.....If a citizen is no more than a way-farer
or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the
court will not be a bar for him. But (if) he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper
than that of a busy body, he cannot be told off at the gates, although whether the issue raised by him is justifiable may still remain to be
considered."" Bhagwati, J. as the learned Judge then was, observed in S.P. Gupta Vs. President of India and Others, as follows.
We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury
arising from breach of public duty or from violation of some provisions of the Constitution or the law and seek enforcement of such public duty and
observance of such constitutional or legal provision. This is absolutely essential for maintaining the Rule of Law fathering the cause of justice and
accelerating the fact of realisation on the constitutional objectives"".
In the decision cited by the Learned Counsel for the writ petitioner, viz Janata Dal Vs. H.S. Chowdhary and Others, the Supreme Court
pointed out the distinction between a private action and a public interest litigation and observed as follows.
Though it is imperative to lay down clear guidelines and propositions: and outline the correct parameters for entertaining a public interest litigation -
particularly on the issue of locus standi yet, no hard and fast rules have yet been formulated and no comprehensive guidelines have been evolved.
There is also one view that such adumbration is not possible and it would not be expedient to lay down any general rule which would govern all
cases under all circumstances.
Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory; because the legal capacity
of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the
threshold.
The traditional syntax of law in regard to locus standi for a specific judicial redress, sought by an individual person or determinate class or
identifiable group of persons, is available only to that person or class or group of persons who has or have suffered a legal injury by reasons of
violation of his or their legal right or a right legally protected, the invasion of which gives rise to action ability within the categories of law. In a
private action, the litigation is bipolar; two opposed parties are locked in a confrontational controversy which pertains to the determination of the
legal consequences of past events unlike in public action. The character of such litigation is essentially that of vindicating private rights, proceedings
being brought by the persons in whom the right personally inheres or their legally constituted representatives who are thus obviously most
competent to commence the litigation.
In contrast, the strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi
to any member of the public acting bonafide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but
who is not a merely busy body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the provisions of the
constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest
by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bonafide and having sufficient
interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like actio popularis of Roman Law
whereby any citizen could bring such an action in respect of a public delict.
If we examine the credentials of the writ petitioner in the light of what has been stated above, it is highly doubtful whether there are bonafides in
the action initiated by him. The mere affirmation in the affidavit that he is not a busy body or a meddlesome interloper does not by itself show that
he is not one and to maintain the present action.
In paragraph 6 of his affidavit, the writ petitioner has alleged as follows.
The petitioner further states that he has collected all the above information�s from the press which gives the day to day information the delay in
disposing of the said writ petitions"".
The main affidavit was filed on 14-7-1998. In the additional affidavit, the petitioner alleged as follows:
He further states that after filing this writ petition he has come to know that the 1st respondent has been transferred even in June 1998 to the
Guwahati High Court as Chief Justice and this transfer is not given effect till this date as he is put in the duty of passing orders in those writ petitions
in which orders were reserved on 4-2-1998"".
It is surprising that the petitioner should allege that he came to know that the first respondent had been transferred even in June, 1998 subsequent
to the filing of the writ petition. A person who is not a busy body or an interloper and who is an avid follower of news and trends has not alleged in
the forefront in the main affidavit about his knowledge of the purported transfer of the Hon''ble the Chief Justice to another High Court. This
allegation that the petitioner came to know about the alleged transfer of the Hon''ble the Chief Justice to Guwahati High Court only after the filing of
the writ petition is ex facie false. Apparently, this allegation has been made to bolster his stand and more in the nature of inventing a reason for
sustaining his case for withdrawing the writ petition from the Bench consisting of the Hon''ble the Chief Justice and another learned Judge. I am
unable to see how the writ petitioner satisfies the locus standi rule for maintaining a public interest litigation. Except his bald allegation and bold
assertion that he is not a meddlesome interloper or a busy body and that he is only interested in the dispensing of justice as if nobody else has that
interest in seeing that justice is dispensed. There are serious doubts about the bona fides of the petitioner in engineering the present writ petition.
The motive for filing the present writ petition does not appear to be as laudable as it is made out to be. On the contrary, this appears to be only an
attempt to stall and delay the proceedings from coming to a head. The Court cannot be a party, nor can it be used as a device or instrumentality by
anyone for some ulterior motive. The Court cannot allow its process to be abused nor can PIL be used to satisfy individual whims however pious
they are projected to be.
At this juncture, I should also advert to certain other aspects relating to the present case. We are informed by the Learned Counsel Mr.
Muthuswamy that the Counsel, who is appearing for the petitioner in this un-numbered writ petition is also a Counsel in one of the writ petitions
questioning the constitution of the Special Courts and instructing the Senior Counsel in those writ petitions. Those writ petitions have already been
heard for five days from the 14th or July before the First Bench consisting of the Hon''ble the Chief Justice and E. Padmanabhan. J. At the end of
the arguments on Friday, the 17th of July, 1998 when Mr. Muthusamy, Learned Counsel for the petitioner in the present un-numbered writ
petition, was asked as to what was happening before the First Bench, the Learned Counsel replied that there was exchange of words going on
between the Senior Counsel on the question of adjournment. Subsequently, on Monday the 20th of July, 1998 when the matter was again taken up
by the Court, to a specific question to Mr. Muthusamy as to whether the petitioner was still keen about getting on with the petition notwithstanding
that arguments had already commenced and were going on before the First Bench, the Learned Counsel submitted that if only the Hon''ble the
Chief Justice had refused adjournment and insisted on the Counsel getting on with the case, he would have advised the petitioner to withdraw the
case and since adjournment had been granted, the present writ petition should continue to be heard and decided. This submission, in my view,
gives a complete go-by to the allegation made in the affidavit and the additional affidavit filed in support of the writ petition and casts serious
aspersions on the High Office of the Chief Justice. The petitioner appears to have some other axe to grind and the altruism projected is a myth.
We have already noticed the observations made by Justice Krishna Iyer in Fertiliser Corporation Kamgar Union''s case (AIR 1981 SC 344
=1981-2 SCR 52). I cannot accept that the petitioner has some concern deeper than that of a busy body to entitle him to have any indulgence
before this Court. In IRC v. National Federation of Self-Employed and Small Business Ltd. (1981 -2 AI1.E.R. 93), the House of Lords,
observed that,
there may be simple cases in which it can be seen at the earliest stages that the person applying for judicial review has no interest at all or no
sufficient interest to support the application, then it would be quite correct at the threshold to refuse him leave to apply...........But in other cases,
this will not be so. In these cases, it will be necessary to consider the powers or duties in law of all those against whom relief is asked, the position
of the applicant in relation to those powers or duties and the breach of those said to have been committed. In other words, question of sufficient
interest, cannot in such cases, be considered in the abstract or as an isolated point; it must be taken together with the legal and factual context.
It is therefore, that, notwithstanding the fact that the petitioner has to be told off at the gates, I will further examine whether the issue raised by him
is justifiable. That takes us to the question whether a writ of mandamus will lie against a Chief Justice.
In Halsbury''s Laws of England, Fourth Edition Volume I, pages 117 to 125, paragraph 99 the law regarding mandamus is stated as follows:
An order of mandamus will be granted ordering that lo be done and for this rule to apply, it is not necessary that the party or corporation on
whom the statutory duly is imposed should be a public official or an official body. However, for an order of mandamus to issue for the enforcement
of a statutory right, it must appear that the statute in question imposes a duly, the performance or non-performance of which is not a mailer of
discretion, and if a power of a discretion only, as distinct from a duly, exists an order of mandamus will not be granted by a court (R.v. Marshland
Smeeth and Fen District Commissioners - 1920-1 K.B. 155).except to secure performance of a duty to exercise the direction .when the occasion
arises, or a duly to exercise a genuine discretion or a discretion based on proper legal principles.
In P.P Craig, Administrative Law, Second Edition, page 390, it is stated as follows:
For a mandamus to lie. there must be a public duty owed to the applicant. This involves two distinct requirements. First, the duly must be of a
public as opposed to a private character provided that the duty is public it may flow from statute, prerogative, common law. charter, customer
even contract. Secondly, even if the duty is of a public character, it must be a duty owed to this individual or type of individual.
It is contended by the Learned Counsel for the writ petitioner that a writ would lie against the Chief Justice and in support, he placed reliance
on the following decisions:
(1) Mayavaram Financial Corporation Ltd. v. The Registrar of Chits, Pondicherry (1991 -2 L.W. 80 FB)
(2) M. Ranka v. The Hon''ble the Chief Justice of Tamil Nadu and others (1991 Writ L.R. 769 = 1991 -2-L.W.225 FB)
(3) M. Ranka v. The Hon''ble the Chief Justice of Tamil Nadu and others 1994 Writ L.R. 542 FB
(4) M. Ranka v. The Hon''ble the Chief Justice of Tamil Nadu and others 1994 WLR 545 FB
(5) Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court,
(6) Sir Iqhal Ahmad, Senior Advocate. Supreme Court, Lucknow v. The Hon''ble the chief Justice of High Court of Judicature at Allahabad and
another (AIR 1962 All. 391 DB)
(7) Jyoti Prokash Mitter Vs. The Hon''ble Mr. Justice H.K. Bose, Chief Justice of High Court, Calcutta,
(8) Krishna Swami Vs. Union of India and another, and
(9) State of Rajasthan v. Prakaschand 1998 Crl. L.J. 2033-1998-1 SCC I)
I will refer to the above decisions and other decisions in the course of further discussion. The whole question boils down to the constitution of the
Benches by the Chief Justice.
In a topical article ""Anent the Powers of the Chief Justice"" by Mr. S. Subramania Iyer, High Court Vakil, Madras, dated 13th March, 1923
reported in (1923-17 L. W. 61 J.S. reproduced in 1991 -2L.W. 89 J.S.) it is stated that,
...... It thus being within the power of Chief Justice to provide every day as to which of the Judges shall do what business, he can before a
particular Bench takes up a particular case dissolve that Beach or reconstitute it. This power conceded, the other power to withdraw a case from a
Bench and assign it to another bench must follow. There is nothing in either the Acts, or the Rules, or the Letters patent, which would seem to deny
or take away the power of the Chief Justice to interfere with the sittings even when particular Bench or Judge is in the midst of a part-heard case.
That being so, it seems to us that even if a particular case is taken up by a particular Bench and remains part heard, the Chief Justice can by a re-
arrangement of a Bench or otherwise assign that case for determination by another Bench. After all, the arrangement of sittings and the allotment of
work are part of the domestic administration of the High Court and the Chief Justice must, it would appear, by virtue of his very position as the
head of the tribunal possess the authority to arrange for an ordain the transaction of business as he thinks fit.
In Puran Chand and Another Vs. Abdullah and Another, jurisdiction was given to a Bench of three judges to decide a question of law. The
Judges did not exercise the jurisdiction but recorded a brief order that there was conflict and they returned the reference to the Chief Justice with a
suggestion that the matter may be referred to decide whether it was necessary that there should be a Full Bench on the point; it was held that the
jurisdiction of the former Bench of three judges came to an end when they returned the matter to the Chief Justice without deciding the point and it
was within the jurisdiction of the Chief Justice to take the Course of action, which he had taken,
In National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), the Supreme Court while
considering the scope of Section 108 of the Government of India Act 1915 read with the corresponding provision in the Government of India Act,
1935 and under Article 225 of the Constitution of India has made certain observations. In that case, the Supreme Court held that the rule making
power u/s 108 of the Government of India Act remains unaffected and so the power of the Chief Justice to decide who amongst the Judges be
assigned the work as a Judge sitting alone or a Judge sitting in a Division Bench of two or three Judges.
In Niranjan Singh v. State of Rajasthan and others (AIR 1974 Raj 171) a Full Bench of the Rajasthan High Court dealing with Rajasthan High
Court''s Rules, 1952 held that,
the Hon''ble the Chief Justice has the power to direct that any case or class of cases in which a date of hearing has been fixed by a Bench shall be
listed for hearing before another Bench. It is clearly permissible for the Chief Justice to reverse any earlier order of allotment of any particular case
or class of cases to a Judge sitting alone and to direct that it may be heard by a Bench of two or more Judges. Since the jurisdiction vests in the
High Court, by virtue of Article 225 of the Constitution, it is the High Court, which is, in the true sense of the word, seized of case. The Chief
Justice cannot be derived of his power to direct that a particular case or class of cases shall be listed for hearing before another Bench merely
because date of hearing has been fixed by a Bench already.
In State of Maharashtra v. Narayan Shamrao Puranik and others (1982-2 S.C.C. 440 = 95 L.W.151 S.N.) dealing with section 51 of the
States Reorganization Act, the Supreme Court observed as follow:
In contrast with the President''s power under sub section (2) of Section 51, the power under sub-section (2) thereof is in the unquestioned domain
of the Chief Justice, the only condition being that he must act with the approval of the Governor. It is basically an internal matter pertaining to the
High Court. The Chief Justice being the master of the roster has full power, authority and jurisdiction in the matter of allocation of business of the
High Court which flows not only from the provision contained in sub-section (3) of Section 51 of the Act, but inheres in him in the very nature of
things. The opinion of the Chief Justice in matter provided in sub-section (3) must therefore, normally prevail because it is for the more convenient
transaction of judicial business. The Chief Justice acted with the best of intentions within the scope of his powers, and there is no substance in the
contention that the Notification issued by him is a colourable exercise of power.
In R.J. Mehta v. His Lordship the Chief Justice v. S. Deshpande and others (AIR 1982 Bombay 125), the question arose as follows:
The composition of a Bench by the Chief Justice of the Bombay High Court was challenged. The Chief Justice was the first respondent and the
Judges constituting the Bench were arrayed as respondents 2 and 3. The two learned Judges were two of the trustees of Indira Gandhi Pratibha
Pratisthan Trust of which Mr. A.R. Antulay, the Ex. Chief Minister of the State of Maharashtra was the principal trustee. A criminal complaint had
been filed against the Chief Minister, where the two Judges had been cited as witnesses. It was contended that, the two learned Judges should be
disqualified from continuing to hold the offices of Judges the High Court and the alternative relief claimed was that the Chief Justice should not
assign any judicial work to those Judges. The question arose whether such a writ petition was maintainable. The Counsel appearing for the
petitioner in that case expressed serious apprehension in her mind and several like-minded other citizens on the question of judicial independence
with specific reference to the second and the third respondents'' association as trustees of the trust in dispute. The learned Judge held that,
the grievance to be justifiable should at the minimal be concrete and real. This indeed is a sine quo non, an indispensable condition for judicial
review. Basic to judicial adjudication is not a general atmospheric situation, however genuine it be, but an active lis, an actual case in controversy.
An issue or a controversy to be amenable to judicial adjudication and redress, as distinguished from academic or theoretical discussion, must have
a visible setting of specific facts and circumstances, in the context whereof alone it can be legally considered and judicially determined. Courts do
not decide abstract apprehensions. Writes operational judicial instruments - are not issued in isolation or in vacuo. There can be no general judicial
determination of a hypothetical apprehension. Jurisdiction under Article 226 of the Constitution is not an advisory or consultative jurisdiction. Even
the infrequently invoked jurisdiction under Article 143 of the Constitution has almost always been invoked and exercised in the light initially of one
or another concrete setting. Therefore, however, laudable may otherwise be the object of this petition, it reflects at the highest an admirable
passion for judicial independence but de hors any specific lis or case. That apart, and even otherwise, the circumstances set forth in the petition do
not ipso facto lend to the inference -loss of confidence in judicial independence - sought to be so readily drawn therefrom.
The advocated anxiety is more conjectural than real. The reliefs claimed arc also unprecedented......It would be a highly dangerous precedent to
lay down by holding as validly subsisting in a Court to examine and consider and adjudicate upon a Judge''s judicial independence. Such a role is
plainly beyond the jurisdiction of this Court. Such extraordinary investigation would be an extremely hazardous course to navigate and a wholly
unconstitutional exercise of judicial power.
So far as assignment of work is concerned, it is -subject, of course, to the rules of the High Court, - the exclusive right, duty and privilege of the
learned Chief Justice. Contention, however, has been that, the time has come to lay down norms in that behalf. But, in a sphere so sensitive and
with many a delicate aspect and element entering the field, the norms are best left undefined and best left to the good judgment and discretion of
the learned Chief Justice. A system which has by and large, worked well for a century and more is best left undisturbed. Counsel contends that
assignment of work is an administrative function and, therefore, subject to judicial review. Even assuming it to be so, every singular administrative
function is not judicially reviewable. Save and except perhaps in a case of a patent and clear breach of the express rules affecting the jurisdiction of
the Court, I am not prepared to go to the length of holding that this function is justifiable and can, therefore, be judicially reviewed and controlled.
To so hold can only open the floodgates for a virtual stalemate and anarchy in administration. Every assignment list-why, every single unpleasant
assignment - can then become amenabje to a judicial challenge. The wheels of judicial administration may as well come to a grinding halt. In the
very nature of things, therefore, implicit confidence in the bona fide exercise of that function by the learned Chief Justice is necessary. Such
confidence is at the more warranted when in a given case a request to the learned Chief Justice to look into and consider any reasonable grievance
can always be made.
Though under the recent tread, even a citizen not directly aggrieved may initiate a public interest action, the initiate a public interest action, the
instant petition in that behalf is not just unusual but also goes too far. It may be that ambition and judicial independence may not happily co-exist. It
may also be that continuous close proximity to the powers that be may as well blur the laxman rekha, the vital dividing line of thus far and no
further. Even so, however, an individual''s right to hold on to his independent thinking cannot be judicially abrogated. Freedom for the thought and
action - one does not like, is one of the basic attributes of an independent people wedded to a democratic way of life. It is equally so not
permissible to judicially audit a Judge''s action de hors or outside his judicial sphere or his reasons for the said action. Stripping a judge of his
judicial functions - akin to removing him pro tanto or pro tempore from office-is an unheard of exercise even in a public interest action. Judicial
independence and public confidence therein is not and cannot be a matter of writs and injunctions. It is much too sacred to be secured and
sustained through such strait-jacked formulae.
In Sohan Lal Baid Vs. State of West Bengal and others, , a Bench of the Calcutta High Court dealing with allocation of business of the Court
amongst different Benches, observed as follows:
Once the Chief Justice has determined what Judges of the Court are to sit alone or to constitute the several Division Courts and has allocated the
judicial business of the Court amongst them, the power and jurisdiction to take cognizance of the respective classes or categories of cases
presented in a formal way or their decision, according to such determination, is acquired. To put it negatively, the power and jurisdiction to take
cognizance of an offence to hear specified categories or classes of cases and to adjudicate and exercise any judicial power in respect of them is
derived only from the determination made by the Chief Justice in exercise of his constitutional, statutory and inherent powers and from no other
source and no case which is not covered by such determination can be entertained, dealt with or decided by the Judges sitting singly or in Division
Courts till such determination remains operative..........The cardinal position is that before jurisdiction over the exercise, the case must be legally
brought before the concerned Court for its hearing and determination and that a judgment pronounced by a Court without investment of jurisdiction
is void.
In Mayavaram Financial Corporation Ltd., Mayiladuthurai v. The Registrar of Chits Pondicherry (1991-2 L.W. 80) a Full Bench of this Court,
after a thorough analysis of several decisions on the point held that the Supreme Court''s rule making power u/s 108 of the Government of India
Act 1915 read with the correspondent provision in the Government of India Act, 1935 and under Article 225 of the Constitution of India remained
unaffected and so is the power of Hon''ble the Chief Justice to decide who amongst the Judges be assigned the work as a Judge sitting alone or a
Judge sitting in a Division Bench of two or three Judges (already extracted). This decision of the Full Bench in Mayavaram Financial Corporation
case has been approved by the Supreme Court in State of Rajasthan v. Prakashchand (1998-1 SCC 1) in the following terms:
The Hon''ble the Chief Justice has the inherent power to allocate the judicial business of the High Court including who of the Judges should sit
alone and who should constitute the Bench of two or more Judges. No litigant shall, upon such constitution of a Bench or allotment of a case to a
particular Judge of the Court will have a right to question the jurisdiction of the Judges or the Judge hearing the case. No person can claim as a
matter of right that this petition be heard by a single Judge or a Division Bench or a particular single Judge or a particular Division Bench. No Judge
or a Bench of Judges will assume jurisdiction unless the case is allotted to him or them under the orders of the Hon''ble the Chief Justice"".
In my view, the above extract is sufficient to dismiss the writ petition as not maintainable. However, the Learned Counsel referred to a number
of other decisions which, according to him, supported his stand that the writ petition against the Chief Justice was maintainable. I will, therefore,
refer to the cases cited by the Learned Counsel and other decisions on the point.
In M. Ranka v. The Hon''ble the Chief Justice of Tamil Nadu and others (1991-2 L.W. 98) Bakthavatsalam, J. as the learned Judge then was,
held that it is the prerogative of the Chief Justice in the matter of allotment of work. The learned Judge relied on an unreported decision of S.
Ramalingam, J. as he then was, in W.P.SR. No. 60735/90 order dated 12-9-1990 and in paragraph 13, the learned Judge has extracted it and it
is as follows:
When work is so assigned, it is for the learned Judges to decide whether, for some reasons, they should not hear the case so assigned to them and
if they decide so, they may direct the papers to be placed before My Lord, the Chief Justice for posting such cases before some other Bench. In
the extraordinary circumstances, the counsel himself may make a special request that his case may not be heard by a particular Bench and if that
request is made bonafide the learned Judges themselves direct the papers to be placed before My Lord, the Chief Justice for orders regarding the
posting of the matter before some other Bench. It is also open to a party or a counsel to make a special mention before My Lord the Chief Justice
so that that the cases pending before one Bench may be posted before another Bench and it is for My Lord the Chief Justice to satisfy about the
reasons for such postings.
After extracting the above portion, the learned Judge observed that the above mentioned procedure was the proper procedure to be followed by
the petitioner and the filing of the writ petition for the issue of a writ of mandamus, in the view of the learned Judge, could not be entertained. The
decision of Bakthavatsalam, J. as the learned Judge then was, was appealed against and in M. Ranka v. The Hon''ble the Chief Justice of Tamil
Nadu and others (1991-2 L.W. 225 =1991 W.L.R. 769), a Division Bench of this Court affirmed the decision of the learned single Judge except
with regard to the portion providing for the counsel or the party making a request to the Hon''ble the Chief Justice for getting the case posted
before some other learned Judge or some other Bench. The Division Bench concluded as follows:
We are in agreement with the view expressed by earned single Judge except that part of his judgment in which he has approved the observation of
S. Ramalingam, J. about any party or a counsel making a special mention before the Chief Justice so that the case pending before one bench of the
court may be posted before another Bench of the Court. Unless it is found that there is any such Jurisdiction to recall a pending file from the port
folio Judge or Judges, such special mention will not be permissible. If this procedure is to be allowed to come in vogue, it would create serious
consequences. It is easy to concede that the Hon''ble the Chief Justice shall not yield to prayers which are unreasonable and shall not easily transfer
a case from one Bench to another. But it will not be easy for the Hon''ble the Chief Justice to sit in decision on requests from the litigants and their
counsel to transfer their cases from one Bench/ Judge to another Bench/Judge. We have given a full length of hearing to the appellant to satisfy
where and how the chief Justice gets any administrative jurisdiction over the judicial work of the Judges of the High Court because once cases are
brought before a judge or a bench of the Court, it is so brought for judicial determination by him/ it. The appellant has not been able to show any
authority to this effect.
The Bench held that a writ of mandamus was not maintainable against the Chief Justice.
It is also useful to refer to what the Bench said about the various allegations made by the petitioner party in person Counsel in that case: ""A so
called brief of the reasons of the appellant''s exasperation in the affidavit filed in support of the writ petition shows that the appellant is one of those
who held the view that a crisis had overtaken the judiciary and people are losing faith in the credibility of the judicial process.......We have carefully
picked up the events whenever they touched the judicial conduct of respondents 2 and 3. Do we find anything that would cause any apprehension
in the mind of the appellant that the second and the third respondents had developed any disliking for him? Why should a counsel feel that a judicial
order was passed in a particular case against the interest of his clients only because Judges were angry with him? An advocate, no doubt, gets his
appointment and remuneration from his client. But he is an Officer of the Court. He presents the case of his client and he assists the court and thus
his duty comes to an end. He does not have to account for the judgment or order to anybody. It is enough if he discharges his trust fully and
faithfully to his clients. Judiciary is the last bulwark of the State. Every tyrant, bully or outlaw will be happy if its credibility is spoiled. Courts exist in
public interest and have to account for what they do by their opinions expressed in their judgments/orders. A Judge is not unjust until his judgments
and orders are unjust. A Judge is not unfair if he delivers judgments and makes orders without fear or favour. If there is some mistake of fact or
law in any judgment or order, that cannot show any bias or ill- will. The appellant, who himself is a fairly senior Advocate, is not unaware of the
glorious past of this Court. Judges today may not be bestowed with the same wisdom as their predecessors were, but to say, without any material
that they have acted with ill-will is, if not anything else, unfair"".
In M. Ranka v. The Hon''ble the Acting Chief Justice of Tamil Nadu High Court and others (1994 WLR 545) a Full Bench of this Court held
that it is not open to a party or counsel to choose his Judge and rejected the prayer of the counsel, who appeared as party in person claiming that
the matters in which he was appearing should not be posted before the respondents/judges. It was held that such a prayer was not maintainable.
The Full Bench also rejected the contention of the Counsel that the ruling of the Division Bench in M, Ranka v. The Hon''ble the Chief Justice of
Tamil Nadu (1991-2 L.W. 225) was erroneous and per incuriam. The Full Bench, however, directed the office to number the writ petition in view
of the fact that the writ petition was directed also against Union of India and Indian Overseas Bank, though the writ petition was dismissed in limine
by the Full Bench.
In Bhajan Lal v. M/s Jindal Strips Ltd., and others (1994-6 SCC 19) the Supreme Court had occasion to consider a similar situation. In that
case, a writ petition was filed before the High Court challenging assessment orders and alleging bias against the Chief Minister. The writ petition
was admitted and exparte interim stay was granted by a Bench presided over by a learned Judge. It was later on listed before the Tax Bench. The
learned Judge who presided over the writ court became the Acting Chief Justice and the case was delisted from the Tax Bench and posted before
him and another learned Judge. Arguments were heard and they also reached advanced stage. At that time, and any application for transfer was
filed alleging bias against the learned Judge. It was dismissed and an SLP was filed before the Supreme Court. It was held by the Supreme Court
that mere was no reasonable apprehension of bias merely because of posting of a case before a particular Bench presided over by the ""Judge"".
The challenge against the dismissal of the transfer petition was held to be not sustainable. The Supreme Court observed as follows:
May be, either because of a particular practice prevailing in a Court that a Bench which directed the posting of a case should finally hear the
matter or because of the change of rosters, the case would have come before a particular Bench. There was nothing to indicate that the then Acting
Chief Justice evinced an interest in hearing the matter or that he was biased. When the case was in the list of the Bench headed by the ""Judge"", no
objection was raised. Arguments were advanced for three days on the main writ petition. The application for transfer was taken out on the ground
of bias. By then, the matter was coming to a close. It cannot be said that there could be any reasonable apprehension of bias which a reasonable
person could entertain. It appears that the attempt was to avoid the Bench headed by the learned Judge"".
Interestingly, the arguments in the batch of writ petitions before the First Bench consisting of the Hon''ble the Chief Justice and E.
Padmanabhan, J. have commenced and are in full swing, except that the matter after being heard for five days has been adjourned to the 28th of
July, 1998 at the request of the learned Senior Counsel for the petitioner on account of his other commitments or engagements. It is informed that
arguments are continuing.
In Inder Main and others v. Matheshwari Prasad and others (1996-6 SCC 587), the Supreme Court, besides observing what has already
been extracted by me in the earlier part of this judgment, stated as follows:
When the Chief Justice had constituted a Division Bench, it was incumbent upon the learned Judge to sit in a Division Bench and dispose of the
work assigned to this Division Bench. It was most improper on his part to disregard the administrative directions given by the Chief Justice of the
High Court and to sit singly to take up matters that he thought he should take up. Even if he was originally shown as sitting singly, when the Bench
was reconstituted and he was so informed, he was required to sit in a Division Bench on that day and was bound to carry out this direction. If there
was any difficulty, it was his duty to go to the Chief Justice and explain the situation so that the Chief Justice could then give appropriate directions
in that connection. But he could not have, on his own, disregarded the directions given by the Chief Justice and chosen to sit singly. This behavior
which totally undermines judicial discipline and proper functioning of the High Court is deprecated.
In the latest decision of the Supreme Court in State of Rajasthan v. Prakashchand and others (1998-1 SCC 1= 1998 Crl.L.J. 2012) the
Supreme Court referring to the Rajasthan High Court Ordinance, 1949, observed as follows:
A careful reading of the aforesaid provisions of the Ordinance and Rule 54 (supra) shows that the administrative control of the High Court vests in
the Chief Justice of the High Court alone and that it is his prerogative to distribute business of the High Court both judicial and administrative. He
alone, has the right and power to decide how the Benches of the High Court are to be constituted: which judge is to sit alone and which cases he
can and is required to hear as also as to which judges shall constitute a division Bench and what work those Benches shall do. In other words, the
judges of the High Court can sit alone or in Division Benches and do such work only as may be allotted to them by an order of or in accordance
with the directions of the Chief Justice. That necessarily means that it is not within the competence or domain of any single or Division Bench of the
court to give any direction to the Registry in that behalf which will run contrary to the directions of the chief justice. Therefore in the scheme of
things judicial discipline demands that in the event a single judge or a Division Bench considers that a particular case requires to be listed before it
for valid reasons, it should direct the Registry to obtain appropriate orders from the Chief Justice. The puisne judges are not expected to entertain
any request from the advocates of the parties for listing of case which does not strictly fall within the determined roster. In such cases, it is
appropriate to direct the counsel to make a mention before the Chief Justice and obtain appropriate orders. This is essential for smooth functioning
of the court. Though on the judicial side, the Chief Justice is only the first amongst the equals, on the administrative side in the matter of constitution
of Benches and making of roster, he alone is vested with the necessary powers. That the power to make roster, exclusively vests in the Chief
Justice and that a daily cause list is to be prepared under the directions of the Chief Justice as is borne out from Rule 73 which reads as follows.
Daily Cause List The Registrar shall subject to such directions as the Chief Justice may give from time to time cause to be prepared for each day
on which the court sits, a list of cases which may be heard by the different Benches of the Court. The list shall also state the hour at which and the
room in which each Bench shall sit. Such list shall be known as the day''s list"".
This is the consistent view taken by some of the High courts. The Chief Justice has the authority and jurisdiction to refer even a part-heard case to
a Division Bench for its disposal in accordance with law and rules so demand. The Supreme Court quoted the views of Benjamin Cardozn, the
great Jurist in this behalf:-
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his
own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise discretion, informed by tradition, methodized by analogy, disciplined by system, and subordinated
to the primordial necessity of order in the social life.
It must be remembered that it is the duty of every member of the legal fraternity to ensure that the image of the judiciary is not tarnished and its
respectability eroded.
Thus, with regard to allocation or allotment of work and constitution of Benches, the Chief Justice is the ultimate authority. The matter at issue
essentially relates to formation of Benches and the same is best left to the Chief Justice. Absolutely, no case has been made out by the writ
petitioner for the relief he has prayed for.
Let us now go to cases where writs were prayed for against the Chief Justice. In most of those cases writs were issued, but none of the cases
related to allocation of work by the Chief Justice.
in Goone Sinha v. De Kertser (AIR 1945 P.C.83 = 58 L.W.371) dealing with the jurisdiction of the High Court to issue a writ of certiorari the
Privy Council stated the law as follows..
A Court having jurisdiction to issue a writ of certiorari will not and cannot issue it to bring up an order made by a judge of that court. Nor will a
superior court issue the writ directed to another superior court. Considering that the election court under the Ceylon (States Council Elections)
order in Council 1931, is held before a judge of the supreme court of Ceylon from whose decision there is no appeal the election court, is a
superior independent tribunal and, therefore, the Supreme Court cannot issue a writ of certiorari to the election court. Moreover, the cognizance of
the election petitions under the order in council is an extension of, or addition to, the ordinary jurisdiction of the Supreme Court and consequently
certiorari cannot be granted by the Supreme Court to bring up any order made in the exercise of that jurisdiction"".
In Babul Chandra Mitra''s case AIR 1952 Pat 309 (FB), all the judges passed the impugned order when the Chief Justice or any other judge
passed an order in an administrative capacity it was held that he was amenable to the writ jurisdiction under Article 226 of the Constitution.
In Pradyat Kumar Bose v. Chief Justice of Calcutta High Court, AIR 1956 S.C.285, the matter related to the power to dismiss a member of
the High Court staff. It was held that a writ could issue against the Chief Justice. It was observed that Article 226 (1) of the Constitution which in
terms vested the power of appointment in the Chief Justice was equally effective to vest in him the power of dismissal and in such cases, it was held
that a writ could issue. The case has no application to the facts of the present case.
In Sir Iqbal Ahmad, Senior Advocate, Supreme Court Vs. The Hon''ble the Chief Justice of High Court of Judicature and Another, , the
question was whether there could be a restriction imposed by the direction of the Chief Justice made under the second proviso to clause 8 (2) of
the U.P. High Court (Amalgamation) order whether it was not ultra vires Article 19 (1) (g) of the Constitution. It was held that a writ would lie
against the Chief Justice.
In T.N. Devasahayam v. State of Madras and others (AIR 1958 Mad 53 = 71 L.W.583), this Court held that a writ might issue to a judge
acting in administrative capacity. The same view was taken by two of the three judges constituting the Full Bench of the Calcutta High Court in
Pramatha Nath Mitter and Others Vs. Hon''ble The Chief Justice of the High Court at Calcutta in the State of West Bengal and Others,
In Jyoti Prokash Mitter Vs. The Hon''ble Mr. Justice H.K. Bose, Chief Justice of High Court, Calcutta, there was a claim made by a judge of
the Calcutta High Court that he had not reached the age of superannuation. He made a demand on the Chief Justice to supply him work as judge
of the High court. The learned judge was told that the Union Government had decided that the judge had reached superannuation age and should,
therefore, demit office. He filed a petition for the issue of a writ of mandamus against the Chief Justice. There was a difference of opinion between
judges hearing appeal from order of dismissal of application as to whether rule nisi should issue. The question was referred to a Special Bench
under Clause 36 of the Letters Patent of the Calcutta High Court it was held by the Special Bench that on materials in the petition and annexures
thereto a rule nisi should issue. The Special Bench held as follows:
Wherein a petition filed under Article 226, the petitioner claims that he has not reached the age of superannuation, that, therefore, he still continues
to be a judge of the High Court and has the legal right to act as such and to demand and enjoy the rights and privileges attached to that high office
and, if it can be found in favour of the petitioner, then the Chief Justice of the High Court is under a legal but an obligation to aid and implement the
petitioner''s exercise and enjoyment of the said right or rights and privileges. This is apparent from in any event, prima facie implicit in Section 108
of the Government of India Act, 1915 which corresponds to the older Section 14 of the charter Act (India High Courts Act) 1861 and which has
been preserved by the constitution (vide Article 225) following the earlier Constitutional enactment, the Government of India Act, 1935 (Section
223) and which appears to impose, at least prima facie, a duty upon the Chief Justice to allocate work to the existing judges of the same High
Court. This decision also does not in any way help the case of the petitioner.
In K. Prabhakaran Nair Vs. State of Kerala and Others, after referring to the Privy Council decision in AIR 1945 P.C.83 = 58 L.W.371
(Goone Sinha v. De Kertser) already referred to the Kerala Full Bench observed as follows.
The above principle has application only to orders passed by courts in exercise of judicial functions. The order, in question, was passed by the
High Court in exercise of its administrative authority in view of the control over the subordinate courts vested in it. In these circumstances, we are
not prepared to hold that the petition is not maintainable. We see nothing in the wording of Article 226 of the Constitution which warrants the
imposition of a limitation that the jurisdiction of the High Court under the said Article cannot be invoked for the purpose of calling in question
orders passed by the Chief Justice or by the High Court itself on the administrative side.
In the case before the Kerala High Court the question related to promotion of the persons referred to there in as Sheristadar District Court in the
Travancore-Cochin area basing his preferential claim on his law qualification. The writ was directed against the High Court and the maintainability
was in question. In the above context, the Kerala Full Bench held that Article 226 of the Constitution cannot be invoked to question the order of
the High Court acting in its judicial capacity. In the process, the Karala Full Bench distinguished the decisions in In re Babul Chandra (AIR 1952
Pat 309 FB and Saina Bhai v. State AIR 1957 T C176. The Full Bench referred to the decision of the Supreme Court in Pradyat Kumar Bose
Vs. The Hon''ble The Chief Justice of Calcutta High Court, and in particular to the following paragraph:
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.
and observed that,
Even though the Supreme Court had not expressed any final opinion on the matter, the above passage seemed to suggest that an order passed by
a Chief Justice on the administrative side could in an appropriate case be the subject matter of a proceeding under Article 226 of the Constitution
in the same High Court.
The Full Bench further observed that the subsequent decision of the Supreme Court in Jyoti Prokash Mitter Vs. Hon''ble Mr. Justice Himansu
Kumar Bose, Chief Justice, High Court, Calcutta and Another, also by implication tended to support the view taken by the Full Bench. The
ultimate reasoning of the Full Bench was that,
otherwise there would be an anomalous position that while all other civil servants who may feel aggrieved by orders passed against them by other
heads of departments of Government could in appropriate cases challenge such orders before the High Court under Article 226, the benefit of
such opportunity was denied to the personnel belonging to the staff of the High Court and the subordinate Courts and they would be left without
the benefit of the efficacious and comparatively cheap remedy provided for by Article 226 even if the ground of challenge against the order be a
violation of Article 311 of the Constitution or of the statutory rules framed under Article 309.
That case related to selection of staff or promotion of staff in the High Court and that decision has no application to the facts of the present case.
In Mahesh Prasad Srivastava Vs. Abdul Khair and Others, the Court held that,
though the Supreme Court had not decided the question whether a writ lay against the Chief Justice or any Judge acting in an administrative
capacity, the Supreme Court''s observations in Pradyat Kumar Bose v. The Hon''ble the Chief Justice of Calcutta High Court (AIR 1956 S.C.
285 = 1955-2 S.C.C. 1331) would suggest that a writ would lie and that the grant of a writ raised only a question of propriety.
Following Pramatha Nath Mitter and Others Vs. Hon''ble The Chief Justice of the High Court at Calcutta in the State of West Bengal and Others,
, the Allahabad High Court held that,
A writ lay against the Chief Justice acting in his administrative capacity and confirmed the order under appeal, which had quashed the Chief
Justice''s orders"".
The Court observed that,
the administrative act of the Chief Justice was not the act of the High Court because Articles 224 to 228 and Articles 233 to 235 speak of the
High Court as a collective body whereas Article 229 confers power on the Chief Justice individually, thus making a distinction between Judges of
the High Court collectively and the Chief Justice.
Even in Mahesh Prasad Srivastava Vs. Abdul Khair and Others, the question related to selection of High Court Staff. The Division Bench of the
Allahabad High Court, after referring to a number of decisions of various High Courts and Supreme Court held as follows:
The Constitution has made a distinction between the High Court as a collective institution and the Chief Justice. When the Chief Justice acts for in
exercise of the power vested in him under Article 229 he does not act for the High Court. He acts in his individual capacity as the Chief Justice.
Any other Judges of the High Court can, therefore, entertain a writ petition and sit in judgment on the order of the Chief Justice passed
administratively.
We have already noticed that rules were framed by the High Court in exercise of the powers conferred under Article 225 of the Constitution of
India. The Rules framed under Article 225 give the power to the Chief Justice to constitute Benches, but still the decision is a collective decision
and it is not a decision of the Chief Justice under Article 229. Courts have pointed out the distinction between the collective wisdom of the High
Court exercised in the name of the Chief Justice and the wielding of power by the Chief Justice in his individual capacity as Chief Justice under
Article 229. What the Chief Justice does under Article 225 cannot be subject matter of a writ. As has been observed by the Supreme Court in
Bandhua Mukti Morcha Vs. Union of India (UOI) and Others,
the fundamental conception of the Court must be respected, that it is a single indivisible institution of united purpose and existing solely for the high
constitutional functions for which it has been created. The conception of the Court as a loose aggregate of individual Judges, to one or more of
whom judicial access may be particularly had, undermines its very existence and endangers its proper and effective functioning.
In Naresh v. State of Maharashtra (AIR 1967SCl=(1966)-2SCA36=(1966)-3 SCR 744, it was held by the Supreme Court that,
the High Court had inherent jurisdiction to hold trials in camera or part of a trial in camera or to prohibit excessive publication of a part of its
proceedings, though this power must be exercised with great caution and it is only if the Court is satisfied beyond doubt that the ends of justice
themselves would be defeated if a case is tried in open Court that it can pass an order to hold the trial in camera.
In that case it was the grievance of the journalists that judicial orders passed by High Court indirectly affected their fundamental right under Article
19(l)(a) and (g). The Supreme Court dismissed their petition and held that their remedy was only by way of appeal.
The Supreme Court further held that,
if a judicial order was passed by the court in exercise of its inherent jurisdiction and its sole purpose was to help the administration of justice then
any incidental consequence which might flow from the order would not introduce any constitutional infirmity in it.
Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule
of law which says, ""be you ever so high, the law is above you"". This is the principle of independence of the judiciary which is vital for the
establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable
sections of the community. It is this principle of independence of the judiciary which must be kept in mind while interpreting the relevant provisions.
The principle of independence of the judiciary is not an absolute conception but it is a living faith which must derive its inspiration from the
constitutional charter and its nourishment and sustenance from the constitutional values. If there is one principle which runs through the entire fabric
of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping
every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective"".
- S.P. Gupta Vs. President of India and Others,
The Learned Counsel relied on Krishna Swami Vs. Union of India and another, In that case, the writ petition was dismissed on the ground that
the concerned Judge had not been made a party in the proceedings. On the basis of that decision, the Learned Counsel argued that inasmuch as
the Hon''ble the Chief Justice has been made a party in the present proceedings, the writ petition is maintainable. This argument is not logical and
does not appeal to me. The Supreme Court did not consider anything further because the learned Judge had not been made a party. That does not
mean that the Supreme Court would have entertained the writ petition if the learned Judge had been made a party. The concept was that the
person aggrieved or the person who would be affected by a decision, not having been made a party, the Supreme Court held that the writ petition
was not maintainable.
As has been pointed out by Bhakthavatsalam, J. (as the learned Judge then was) in M. Ranka v. The Hon''ble the Chief Justice of Tamil Nadu,
High Court, Madras and others (1991-2-L.W. 98), it may be that mandamus will lie against orders of the Chief Justice of a High Court on the
Administrative side in the matter of a High Court Judge, transfer of a Judge or termination of service of a High Court Judge or in cases where
disciplinary proceedings are taken and never with regard to assignment of work.
It is alleged in the affidavit in support of the writ petition in paragraph 4 as follows:
The petition further states that Justice delayed is justice denied. It is also a fact that justice hurried is justice buried. Hence speedy trial should
ensure the fair trial to dispense justice. But the delay in disposing of the batch of writ petitions by the Division Bench of this Hon''ble Court headed
by the first respondent herein has caused unholy public opinion on the whole of judiciary itself. The petitioner feels that the first respondent
practises delaying tactics in disposing the writ petitions by changing the companion Judges, so that the writ petitions shall not be disposed of for
ever.
Having said this, the petitioner alleges further as follows:
the first respondent being the constitutional head of the State Judiciary is bound to spell out the best reasons for the abnormal delay of delivering
the orders reserved on 4-2-1998. Further hearing of the said batch of writ petitions by any Bench of this Hon''ble Court headed by the first
respondent herein will further cause not only the delay of trial of those cases before the said special courts, but also will defeat the constitutional
mandate for speedy trail.
The affidavit proceeds on assumptions and surmises. It is surprising how the petitioner can demand of the Judges to spell out the best reasons for
the alleged delay in delivering the orders reserved on 4-2-1998. There may be umpteen reasons. But the Judge is under no obligation to give the
reasons for the delay in delivering judgments. May be under the Code of Civil Procedure, there are provisions which require the Subordinate
judiciary to give their decisions within a stated period. But men those provisions do not apply to the High Court. According to the Learned
Counsel, High Court Judges are constitutional functionaries and owe it to the people to pronounce orders within a reasonable time. Indeed the
proposition is correct. But the Judges need not be told of their obligations.
It is worthwhile to extract portions from the book entitled ''The Closing Chapter'' by Lord Denning, M.R.:
It tells that when Moses sat to judge, the people of Isreal there was such a backlog of work that he could not get through it in the day:
''And it came to pass on the marrow that Moses sat to judge the people: and the people stood by Moses from the morning unto the evening.
There was such a delay that Moes''s father-in-law took it up with him:
''The thing that thou doest is not good: Thou wilt surely wear away, both thou and this people that is with thee; thou art not able to perform it
thyself alone.''
The remedy was to appoint more Judges and to set up a hierarchy of Courts:
''Thou shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness; and place such over them, to be rulers of
thousands, and rulers of hundreds, rulers of fifties and rulers of tens: And let them judge the people at all seasons: and it shall be, that every great
matter they shall bring unto three, but every small matter they shall judge: so shall it be easier for they self, and they shall bear the burden with thee.
Moses did as he was commanded with beneficial results:
''And they judged the people at all seasons: the hard cases they brought unto Moses, but every small matter they judged themselves.''
And more recently, quoting Justice Oliver Wendell Holmes
We are quiet here but it is the quiet of a storm centre.
The Supreme Court in Bhajan Lal v. M/s Jindal Strips Ltd and others (1994-6 SCC 19) observed as follows:
Courts are indeed a storm centre facing the panoply of human problems, crowded dockets and unrelenting work schedules.
In his Treatise on Constitutional Law of India, Mr. H.M. Seervai has catalogued the reasons for the problem of delay and not filling up
vacancies as one of the reasons for the delay in disposal of cases. The petitioner himself in the additional affidavit has adverted to the hearing of the
writ petitions by the Bench as a Herculean task, though he has said that the Hon''ble the Chief Justice is keeping the hearing of the writ petitions
himself with another learned Judge solely with intention to avoid his transfer to another High Court. Incidentally, I fail to see how his retention of the
batch of cases would prevent a transfer being made if really it is to be made. No Judge is asked in advance whether he had finished delivering
judgments in all the cases which he had heard. It is a Damocles Sword hanging over the head of any Judge of the High Courts in India. But this
phenomenon does not prevent the learned Judges from discharging their duties, which they had sworn to do at the time of their appointments. The
stupendous nature of the job before the Judges hearing the batch of writ petitions has been conceded by the petitioner. But the motive alleged is
irresponsible, besides being utterly mala fide in nature. There are cases and cases, Judges hear and they cannot make up their mind immediately. In
some cases, they take their own time to reach a decision. In some cases, they have to do a lot of research themselves having regard to the nature
of question involved. More than anything else it takes a lot of time. Commenting about the work -load in the Supreme Court, Mr. H.M. Seervai in
his treatise of Constitutional Law of India Volume 3 page 2864 paragraph 2S.391 has observed as follows:
I must now deal with the delay in the disposal of cases as a result of the functioning of the Supreme Court. It should he noted that out of five
working days, ordinarily, two days, Mondays and Fridays are fixed for admission of Special Leave Petitions under Article 32 (Article 32
Petitions), normally accompanied by applications for interim relief. Benches of the Supreme Court consisting of two Judges (or occasionally three
Judges) hear Article 32 applications for admission and nothing else for the whole day. The work load on the Judges hearing these applications is so
heavy, that most Judges work 8 to 9 hours, or more, on Saturdays and Sundays, to be ready for the hearing of those applications on Monday.
Again, between the rising of the Courts at 4.30 p.m. on Thursday and its reassembling on Friday at 10.30 a.m. the Judge spend several hours in
the night and in the early morning on applications for admission of Article 32 Petitions to be heard on Fridays. So, for the final hearing of Article 32
petitions, and for the hearing of appeals, civil and criminal, the Court has only three working days. And for such final hearings, the Judges have little
or no time to read the papers on Saturdays and Sundays because the Judges are fully occupied as stated earlier. The net result is that for final
hearing on Tuesdays, Wednesdays and Thursdays, Judges must come to court ill-prepared for heavy matters because, the admission of Article 32
petitions leaves them no time for preparation.
The position in the High Courts is not different. No practising lawyer should under-rate the pressure of work of Judges. It is also on record that in
several important matters, judgments had not been delivered by the Supreme Court and the High Courts for months or even years and indeed it
causes grave inconvenience to parties, but this is a phenomenon, for which solution is elsewhere. It is indeed a grave evil and a method has got to
be evolved by which judgments are delivered with reasonable speed. But, at the same time no motive can be attributed to the concerned Judges
for delay in delivering the judgments. It is a matter of serious concern that anybody should attribute motive to Presiding Judges on account of mere
delay in pronouncing orders. But the difficulties faced by Judges are not appreciated. The heavy work schedule, the pressure on their time and the
importance of the questions involved could be some of the reasons for the delay in pronouncing orders. The delay is not due to design.
In ancient India, there was a well developed system of administration of justice. The. highest Court was located at the Capital City and it was
presided over by the King. There were other Courts, some of them appointed by the King and the others which were people''s Courts recognized
by the Smritis as having the power to administer justice. Appellate jurisdiction was also provided. Qualifications were prescribed for the Judges
and the Chief Justice.
Let the King appoint as members of the Courts of Justice, honourable men of tried integrity, who are able to bear the burden of administration of
justice, who are well-versed in the sacred laws and rules of prudence and who are noble and impartial towards friends and foes. Ail the Dharma
Sastras and Smritis with one voice laid down that dispensation of justice was the highest Dharma of Justice.
-Justice Rama Jois - Legal and Constitutional History of India.
""Our judiciary unlike the U.S. inherited an ingrained tradition of non-political judiciary and our Constitution adhered to that tradition. Judges of
the High Courts and the Supreme Court were to be insulated from political and executive pressure and the legislature had no voice in their
appointment. The qualifications laid down for the appointment of High Court and Supreme Court Judges also show that our judiciary was and was
intended to be, non-political.
Lord Denning in his Book ""What Next to the Law"" writing about Judges has said this:
There remains the most touchy question of all. May not the Judges themselves sometimes abuse or misuse their power? It is their duty to
administer and apply the law of the land. If they should divert it or depart from it - and do so knowingly - they themselves would be guilty of a
misuse of power. So we come up against Juvenile''s question, ''Sed quis custoiet ipsos custoders?'' (But who is to guard the guards themselves""?)
That question was asked in the United States at the time of President Roosevelt''s New Deal in 1935. It may be asked here again before long. In
theory, the Judges of the higher echelon are appointed by Her Majesty the queen: but in practice by the Prime Minister, who in turn, looks to the
Lord Chancellor. Suppose a future Prime Minister should seek to pack the Bench with judges of his own extreme political colour would they be
tools in his hand. To that, I answer No. Every judge on his appointment discards all politics and all prejudices: You need have no fear. The Judges
of England have always in the past and always will be vigilant in guarding our freedoms. Someone must be trusted. Let it be the judges.
The only admissible remedy for any abuse of power-in a civilised society is by recourse of law. It follows as a necessary corollary that the judges
must be independent. They must be free from any influence by those who wield power. Otherwise, they cannot be trusted to decide whether or not
the power is being abused or misused. This independence, I am proud to say, has been achieved in England. The judges for nearly 300 years now
have been absolutely independent not only of government and of ministers, but also of trade unions, of the press, and of the media. They will not be
diverted from their duty by any extraneous influences not by hope of reward nor by the fear of penalties not by flattering praise nor by indignant
reproach. It is the sure knowledge of this that gives the people their confidence in the judges.
Justice Felix Frankfurter stated about judges as follows:
Judges are men, not disembodied spirits, of course, a judge is not free from preferences or, if you will, biases. It is true that the judges are flesh
and blood mortals with individual personalities and with moral human trait. Still what remains essential in judging is, first and foremost, humility and
an understanding of the range of problems and one''s own inadequacy in dealing with them dis-interestedness and allegiance to nothing except the
effort to find that pass through precedent, through policy, through history, through (one''s ) own gifts of insight to the best judgment that a poor
fallible creature can arrive at in that most difficult of all tasks, the adjudication between man and man between man and state, through reason called
law"".
Justice Cardoza in his Lectures on The Judicial Process'' stated as follows:
The business of the judge, they told us was to discover objective truth. His own little individuality his tiny stock of scattered and uncoordinated
philosophies, these, with all his weaknesses and unconscious prejudices, were to be laid aside and forgotten"".
In the words of Wiles. J
......I will endeavour to be ever valiant in preserving and handing down those powers to do justice and to maintain truth, which for the common
good, the law has entrusted to the judges.
(Ex;. P. Fernadez (1861) 10 CB (NS) 3 @ 56)
To recall the words of Justice Frankfurter in Public Utilities Commission of the District of Columbia v. Franklin S. Pollak (343 U.S. 451 = 96
L.Ed. 1068)
The judicial process demands that judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining
them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial
robe does not change the man within it. It does. The fact is that on the whole, judges do lay aside private views in discharging their judicial
functions. This is achieved through training, professional habits, self discipline and that fortunate alchemy by which men are loyal to the obligation
with which they are entrusted.
Again to quote Justice Cardoza.
The training of the judge, if coupled with what is styled the judicial temperament, will help in some degree to emancipate him from the suggestive
power of individual dislikes or prepossessions. It will help to broaden the group to which his subconscious loyalties are due. Never will these
loyalties be utterly extinguished while human nature is what it is. We may wonder sometimes how from the play of all these forces of individualism,
there can come anything coherent, anything but chaos and void. Those are the moments in which we exaggerate the elements of difference. In the
end there emerges something which has a composite shape and truth and order.
Cardoza himself said.
Of the power of favour or prejudice in any sordid or vulgar or evil sense, I have found no trace not even the faintest, among the judges whom I
have known"".
Indeed, justice should not only be done, but should manifestly and undoubtedly be seen to be done. But, the Court of Appeal in Regina v.
Cambarne Justices and another Exparte Pearace (1955 -1 Q.B.41) protested against the tendency to impeach the declaration upon the flimsiest
pretexts of bias and against the erroneous impression that it is more important that justice should appear to be done than that it should, in fact, be
done.
I wish to make a mention about what the Learned Counsel submitted at one stage of the hearing. He stated that it was not known as to what
happened between the judges constituting the Bench and why the judgment was not pronounced. An immediate answer is available from the
judgment of the Supreme Court in Bhajan Lal v. M/s Jindal Strips Ltd. and others (1994-6 SCC 19) that, a litigant should not seek information as
to what transpired within the judicial fortress among the judicial brethren .Judges should not be dragged in and their names mentioned in such
matters.
As observed in M. Ranka v. The Hon''ble the Chief Justice of Tamil Nadu and others (1991 -2 L. W.225 = 1991 W.L.R.769)
the Chief Justice or in that view of the matter any other Judge in the Court, when they do not act in their individual capacity, act as the Court only.
For a writ against the chief justice or in that matter against any other judge of this Court, it is necessary that it is shown by the petitioner that if the
Chief Justice or any other judge had any legal obligation or a duty under any particular law or otherwise to act which duty was not performed by
him or that in performance of that duty, he committed any error of law or jurisdiction.
It has already been noticed that the rules framed under Article 225 of the Constitution of India clothe the Chief Justice with the powers to
constitute Benches, but still the decision is a collective decision of the court and the litigant or anybody else cannot have a forum of his choice.
Equally, it cannot be said that a particular case cannot be heard by a particular Bench or a particular judge.
The Supreme Court has very recently observed in Chetak Constructions Ltd. v. Om Prakash and others (1998 - 4 SCC 577)
We certainly cannot approve of any attempt on the part of any litigant to go forum shopping. A litigant cannot be permitted choice of the forum
and every attempt at forum shopping must be crushed with a heavy hand"".
I cannot but help observing that irresponsible allegations have been made against the Hon''ble the Chief Justice and this has been done only
because from the nature of the office he holds he cannot reply.
Before mandmus can issue there must be a duty without discretion, upon the person or body whom the order is directed to do the very thing
ordered. (Vardy v. Scott - (1976) 66 DLR (3d) 431 O''Grandey v. Whyte(1982) 138 DLR (3d) 167) it has not been shown that the petitioner
has a legal right to the performance of a legal duty to obtain a writ of mandamus from this Court. The office objection is sustained. For all the
reasons stated above, I hold that the writ petition is not maintainable and the same is dismissed.