@JUDGMENTTAG-ORDER
Srinivasan, J.@mdashThis writ appeal is directed against the order of a learned single Judge dismissing the writ petition filed by the appellant herein
as not maintainable. The writ petition was posted before him on a note by the Registry questioning the maintainability of the Writ Petition. The
learned Judge, after hearing the arguments of the appellant, passed an elaborate order dealing with his contentions and negativing the same.
2. The prayer in the Writ Petition is for issue of mandamus or direction in the nature of a writ directing respondents 1 and 2 viz., the Secretary to
Government of India, Ministry of Home Affairs and the Director of Central Bureau of Investigation, Government of India to enquire and ascertain
and name or names of persons who have approached the third respondent, who was a Judge of this Court at that time, in connection with Habeas
Corpus Petitions Nos. 903, 906 and 907 of 1994 before pronouncing orders on 17-8-1994.
3. The relevant averments found in the affidavit filed in support of the petition are as follows :-- The petitioner is an advocate practising in the Court
with 33 years standing. He is a Public Interest Litigation Lawyer. He has no personal interest in the matter except to uphold the dignity, decency
and decorum of the legal profession. The Habeas Corpus Petitions H. C. P. Nos. 903, 906 and 907 of 1994 were heard by a Division Bench
consisting of the third respondent and another learned Judge of this Court. They were petitions filed by detenus who were detained under
COFEPOSA. The orders of detention was passed on 26-4-1994. Though the detenus were supposed to be in jail, they were not actually in
prison but they were in the General Hospital. The Habeas Corpus Petitions were disposed of by the Court within 120 days from the date of filing.
Orders were reserved in the last week of July, 1994 by the Bench. Orders were pronounced two weeks thereafter. The third respondent, before
pronouncing the orders on 17-8-1994, said in the open Court that ""he was approached by parties. He was shocked. To recover from the shock
he went on leave for two weeks : Otherwise he would have pronounced orders long back : Even now he had not recovered from the shock : He is
not accustomed to be approached."" The affidavit mentions names of certain persons who were present in Court at that time. After making such an
observation, the Bench pronounced orders in the Habeas Corpus Petitions.
4. The petitioner sent a telegram on the same day at 11.30 a.m. to the Chief Justice of this Court, the third respondent, the Chief Justice of India,
the first respondent and the second respondent and requested the third respondent to divulge/reveal the names of person or persons who had
approached him in connection with the Habeas Corpus Petitions as observed by him in open Court. The petitioner made three representations to
the respondents. He is more interested in the administration of judiciary and he is the first person to raise objection if any statement derogatory of
judicial institution appeared in the newspapers. When once the parties to a lis approach a Judge, it is incumbent upon the Judge to inform the
Hon''ble the Chief Justice and place, the entire cause papers before him for being disposed of by some other Bench, Strongly, the said course was
not adopted but the third respondent who after making the observations, pronounced orders in the said cases. A Judge of this Court is provided
with police protection and sufficient number of peqns at his residence. In such circumstances, it is surprising and shocking to note what prevented
the learned Judge from handing over the person or persons who approached him in connection with the Habeas Corpus Petitions. A Judge of the
High Court is a very dignified person -- V. I. P. and with such a person, one cannot approach him unless and until there is a prior engagement.
Registers are also supposed to be maintained to indicate person or persons who had occasion to see the Judge at his residence or in his Chamber.
The third respondent, in the interest of the judiciary is bound to reveal the name or names of persons who have approached him and due to his
inaction he is constrained to seek an enquiry through other respondents. The third respondent made the statement voluntarily in the open Court. He
was not inclined to reveal the identity of the persons who approached him. Article 124(4) and Article 217(4) of the Constitution of India are in no
way connected or attracted to stall an enquiry by respondents 1 and 2 with the third respondent herein. Hon''ble Sri Veeraswamy, the then Chief
Justice of Madras High Court, was enquired by the second respondent and three other Judges of the High Court attended an enquiry at Delhi in
connection with an incident at Masonic Lodge at Egmore during emergency period. The enquiry will bring to light the entire episode and the
culprits could be taken to task to avert the tarnishing of the name of judiciary by some misguided persons. ""If the state of affairs continued, there
will not be any safety to Courts or Presiding Officers, lawyers and litigants in the Dooms day for the country. To prevent such things, it is high time
for respondents 1 and 2 to take emergent steps in the matter in question."" Hence, the prayer is made to issue a Writ of Mandamus.
5. The learned Judge, who heard the matter on the Note by the Office, held that the petition was not maintainable. The reasons given by the
learned Judge are shortly as follows :-- The petitioner had earlier filed W. P. S. R. No. 72009 of 1994 and the same was dismissed by him on 22-
8-1994. In that petition, the prayer was for issue of Writ of Quo Warranto against the third respondent as well as the other learned Judge, who sat
with him on the Bench to dispose of the Habeas Corpus Petitions. That petition was dismissed as not maintainable. If at all the petitioner was
aggrieved against the proceedings in the said Habeas Corpus Petitions, he should have raised all the points now raised in this writ petition in the
previous writ petition itself and he cannot be allowed to raise the points piecemeal and stage by stage. It is well settled that the principles of res
judicata are applicable to the disposal of the writ petitions. Secondly, the petitioner has no right to seek an enquiry on the facts disclosed by him.
He is no way connected with the Habeas Corpus Petitions. Every Judge is entitled to have his own views and he may react or act in a particular
manner under a particular set of circumstances. No Hon''ble Judge can be expected to act or behave according to the wishes or expectations of
every Member of the Bar, The Court cannot embark upon an enquiry in this matter. That is the least amount of freedom that should be conceded
to a Judge of the High Court. Thirdly, respondents 1 and 2 have no jurisdiction to enquire into the matter. In the judgment dated 22-8-1994, it is
indicated that the only method by which a Judge can demit office is provided under Art. 217 of the Constitution of India and an enquiry can be
held only in the manner prescribed under Art. 14(4) of the Constitution. For that reason, this petition is not maintainable. The contention of the
petitioner that Art. 124(4) of the Constitution is itself unconstitutional is without merit and not sustainable. The said Article does not exclude judicial
review. The Writ Petition does not disclose any tangible act of misconduct or impropriety on the part of the third respondent. The reliance placed
by the petitioner on S.P. Gupta Vs. President of India and Others, has no relevance. On the above reasons, the learned Judge dismissed the Writ
Petition.
6. In this appeal, the petitioner has raised the following grounds among others :--
3. That the learned Judge has made a grievous error in the approach is very clear from the observation made in para. 8 of the Judgment ""that
every Hon''ble Judge is entitled to have his own views and he may react or act in a particular manner under a particular set of circumstances."".
4. The learned Judge failed to note that it is not the judicial act of the learned Judge namely 3rd respondent that was in question to be decided in
the Writ Petition, but it was the improper open observation of the learned Judge (3rd respondent) in dealing with a case that was in question.
5. The learned single Judge failed to note that the open observations made by the 3rd respondent while dealing with a case under COFEPOSA
was not a proper behaviour of the Judge of the High Court.
6. The learned Judge failed to note that the observation of the 3rd respondent could have been well appreciated if the learned 3rd respondent has
either directed the matter to be posted before some other Judge or dismissed the petition before him.
7. The learned single Judge failed to note that having made an observation in open court, that some persons connected with the petitioners
approached him before Judgment, the only course open to a Judge to prove his independence was to direct the matter to be posted before some
other Judge on that ground.
8. The learned Judge failed to note there was also another course open to the 3rd respondent to have booked the persons who approached him in
respect of that case which would have been readily made available to him by the Police or he should have dismissed the petition before him on
merits without any observation.
7. It is contended by the petitioner that once the learned Judge is approached by the parties in any particular case, it is his duty to wash off his
hands and place the papers before the Hon''ble the Chief Justice. It is also his duly to have handed over such persons to the police. The approach
made by the persons would amount to contempt of Court and the learned Judge ought to have taken action immediately against them. It is very
strange that a petition for issue of Habeas Corpus under the provisions of COFEPOSA is disposed of within four months, though several very old
petitions are still pending. The observations made by the learned single Judge in his judgment are not correct. They are based on an erroneous
assumption. The observation in paragraph 8 of the judgment that a Judge of this Court can react or act in particular manner in his own way is an
obiter. Articles 124(4) and 124(5) of the Constitution are unconstitutional in view of the observations made by the Supreme Court in S. P.
Sampath Kumar v. Union of India, AIR 1987 SC 386 : 1987 Lab IC 222. Certain passages are read out therefrom. In any event, there are certain
conventions prevailing in this Court and the learned Judge ought to have followed the conventions. Conventions are as much binding on the Court
as the provisions of the Constitution. Vide Supreme Court Advocates-on-Record Association and another Vs. Union of India, . Lastly it is
contended that it is not unusual that the second respondent should hold an enquiry against a Judge as such an incident has taken place in this regard
With reference to an incident that occurred in the Masonic Lodge when Justice Veeraswami was Chief Justice during the emergency period and
when Justice Phillips shot at a freedom fighter, no work was allotted to him for several months though he was acquitted by the Magistrate
concerned.
8. We are unable to accept any of the arguments of the petitioner. The entire writ petition is based upon the observations made by the third
respondent in the open Court. Those observations have been extracted in the affidavit filed in the writ petition. We have also referred to them
earlier. From those observations it is not possible for anybody to conclude that the learned Judge was in any manner influenced by the persons
who are said to have appraoched him. It cannot be assumed that the approach was to such an extent that it would have affected the judgment of
the learned Judge. The approach was perhaps nibbed in the bud by the learned Judge. There was no necessity for the learned Judge in such cases
to have placed the papers before the Hon''ble the Chief Justice. If a learned Judge of this Court is in no way affected by any approach made by
any party, it is not necessary for him to place the papers before the Hon''ble Chief Justice to have the case posted before some other Bench and he
can himself dispose of the case uninfluenced by the approach said to have been made. It is not axiomatic that when an approach is made by a
party to a Judge, he should have the matter posted before another Judge. If that is the rule, then every party will try to approach the Judge in order
to see that his case is not disposed of by that Judge if he feels that the particular Judge is against him on merits. Very often, learned Judges made
observations during the course of arguments which may be against one party or other initially. That will not enable any party to insist upon his case
being posted before another Judge on the ground that the Judge is biased.
9. We do not accept the contention that the Judge should immediately take action against the party who attempted to approach him. It is for the
particular Judge to decide whether any action has to be taken against the party in such a situation, It is entirely a matter to be decided by that Judge
on the basis of the facts and circumstance of that case.
10. We agree with the learned single Judge that the Judge concerned has the freedom to decide the course of action.
11. There is no question of any convention having been built up in this Court, that whenever an approach is made by any party, immediately the
papers should be placed before the Chief Justice for the case being posted before some other Judge. It may be in some cases, the learned Judge
himself felt that it was not proper for him to dispose of one case if an approach was made to him. But, there are several cases in which the learned
Judges have proceeded to dispose of the cases uninfluenced by the attempt made by the parties to approach them.
12. The passages relied on by the petitioner in the judgment of the Supreme Court in Supreme Court Supreme Court Advocates-on-Record
Association and another Vs. Union of India, should be understood in the context in which they appear. It is seen from paragraph 352 of the
judgment that the Supreme Court dealt with ""Constitutional Conventions"". The Supreme Court has pointed out that there are certain matters which
are not expressly found in the written text of the Constitution but they have already been accepted and are recognised as conventions. It is part of
the law though it is not part of the written Constitution. The entire discussion commencing from paragraph 352 onwards would show that the
Supreme Court was dealing only with such constitutional conventions which have been accepted universally and not other types of conventions
which may be prevailing in any particular institution. In those circumstances, those passages relied on by learned counsel in paragraphs 365 to 368
have no relevance.
13. Learned counsel at one stage submitted that the prayer in the writ petition does not seek removal of the Judge, who was the third respondent
and the learned Judge who disposed of the writ petition was not justified in dealing with Article 124 of the Constitution of India. We are unable to
accept the contention in view of the fact that the petitioner had argued before the learned Judge on Article 124(4) and 125(5) of the Constitution.
Further, he repeated such an argument before us and cited the observations made by Bhagwathi C. J. in S. P. Sampath Kumar''s case AIR 1987
SC 386. The petitioner invited our attention to the following passage (at page 388) :-
The Constitution has, therefore created an independent machinery for resolving these disputes and this independent machinery is the judiciary
which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature.
The judiciary is constituted the ultimate interpreter of the Constitution and to it is assigned the delecate task of determining what is the extent and
scope of the power conferred on each branch of Government, what are the limits on the exercise of such power under the Constitution and
whether any action of any breach trangresses such limits. It is also a basic principle of the Rule of law which permits every provision of the
Constitution and which forms its very core and essence that the exercise of power by the executive or any other authority must not only be
conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is
compliance with the requirements of law on the part of the executive and other authorities. This function is discharged by the judiciary by exercise
of the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the Rule of Law. The power of
judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the Rule of Law would
become a testing illusion and a promise of unreality. That is why I observed in my judgment in Minerva Mills Ltd. and Others Vs. Union of India
(UOI) and Others, :--
I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of
democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution.
Of course, when I say this I should not be taken to suggest that however effective alternative institutional mechanisms or arrangements for judicial
review cannot be made by Parliament. But what I wish to emphasis is that judicial review is a vital principle of our Constitution and it cannot be
abrogated without affecting the basic structure of the Constitution. If by a Constitutional amendment, the power of judicial review is taken away
and it is provided that the validity of any law made by the Legislative shall not be liable to be called in question on any ground, even if it is outside
the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for
it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless
and futile.....
The law laid down in the passage is on the footing that laws made by the Parliament cannot go against the provisions of the Constitution and such
laws if they are violative of the provisions of the Constitution are unconstitutional. The Constitution is not a law made by the Parliament. It is a law
given by the people up to themselves through the Constituent Assembly. There is no merit in the argument that Art. 124(4) and (5) is
unconstitutional. Learned counsel has not been able to substantiate it in any manner.
14. The reference to incidents in Masonic Lodge and the consequent enquiry or the Chief Justice not allotting any work to Justice Phillips even
after his acquittal in a shooting case in the pre-Independence days is not relevant here. Such instances cannot help us to hold that the writ petition is
maintainable.
15. There is no merit in the contention that the Habeas Corpus Petitions were disposed of within four months though several older petitions are still
pending. Each case has to depend on the facts thereof and in particular case, the Court may find it necessary to dispose of the same urgently. In
fact, several petitions are fifed in this Court to fix early dates for hearing of the cases and we grant the same if we feel that such cases should be
taken up for disposal for the reasons submitted by the parties. No inference can be drawn against the concerned learned Judge for having disposed
of a particular case early.
16. In the circumstances, we are of the view that the Writ Petition is not maintainable and the law has been correctly laid down by the learned
single Judge.
17. The Writ Appeal is, therefore, dismissed.
18. On the conclusion of the judgment, the petitioner prayed for leave to appeal to the Supreme Court under Art. 133 of the Constitution. We
have expressed the view that the Writ Petition itself is not maintainable and we have confirmed the judgment of the learned single Judge following
well settled principles of law. In our opinion, the case does not involve a substantial question of law of general importance; nor does it need to be
decided by the Supreme Court. Hence, leave is refused.
19. Appeal dismissed.
