C. Ravichandran Iyer v Justice A.M. Bhattacharjee (1995)

It answers the sharpest question in Bar–Bench relations: the Bar believes a judge is behaving badly — what may it do? The answer has two halves, and both are examinable. A Bar Council or Bar Association may not discuss a judge's conduct or pass a resolution about it. But there is a route, and the Court laid it down: the in-house procedure, running through the Chief Justice of the High Court to the Chief Justice of India. It exists because impeachment is too blunt an instrument for anything short of grave misbehaviour: "The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in."

The petitioner, a practising advocate, brought a public interest petition under Art. 32 to restrain the Bar Council of Maharashtra and Goa, the Bombay Bar Association and the Advocates' Association of Western India from coercing Justice A.M. Bhattacharjee, Chief Justice of the Bombay High Court, into resigning. He also sought a CBI investigation and, if the allegations were made out, a direction to the Speaker of the Lok Sabha to initiate removal proceedings under Art. 124(4) and (5) read with Art. 218 and the Judges (Inquiry) Act 1968.

The background, from the Bombay Bar Association's affidavit through its President, Iqbal Chagla, was this. Documents showed that the Chief Justice had accepted, from a London publisher, a royalty of US $80,000 for two years' publication and sale abroad of his book Muslim Law and the Constitution. There was a growing suspicion at the Bar that the royalty — "totally disproportionate to what a publisher abroad would be willing to pay" for a book of Indian academic interest — "might have been paid for reasons other than the ostensible reason".

On 14 February 1995 the Chief Justice told the Advocate-General he would go on leave and resign in April, and that was conveyed to the Bar. On 19 February a press interview appeared in which he said he was not contemplating resignation; the Bar Council passed a resolution the same day seeking his "resignation forthwith". Before the Bombay Bar Association's requisitioned general body meeting, its President and the President of the Advocates' Association met him at his residence; he showed them a letter of 17 February to the Chief Justice of India proposing leave and then resignation, and assured them he would resign within a week and do no judicial work meanwhile. The meeting was adjourned.

On 1 March he had not resigned. After full discussion, 185 of the Association's 207 permanent members resolved demanding his resignation. He then resigned, so the immediate question was academic by the time the petition was heard — but the constitutional one was not.

1. May a Bar Council or Bar Association pass a resolution about the conduct of a High Court judge, or demand his resignation?
2. If not, what is the Bar to do with authentic material about a judge's misconduct that falls short of impeachable misbehaviour?
3. Can the Court direct an investigation, or direct Parliament to begin removal proceedings?

The Bar may not do it. The Advocates Act gives the Bar Councils authority over advocates and nothing beyond: s. 6(1) empowers them to set the profession's own house in order, to prevent a fall in professional conduct and to admit and discipline advocates — and "Their power under the Act ends thereat and extends no further."

The constitutional argument is decisive. Article 121 prohibits discussion of a judge's conduct in Parliament except on a motion for his removal. "By necessary implication, no other forum or fora or platform is available for discussion of the conduct of a Judge in the discharge of his duties... much less a Bar Council or group of practising advocates. They are prohibited to discuss the conduct of a Judge in the discharge of his duties or to pass any resolution in that behalf."

And the Bar risks more than futility. Applying Brahma Prakash Sharma v State of U.P. [AIR 1954 SC 10], where a Bar Association had resolved that certain judicial officers were incompetent: "the attack on a Judge is a wrong done to the public and if it tends to create apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge... it would be scandalising the court." No mandamus could issue to the Speaker to initiate impeachment either: following Sub-Committee on Judicial Accountability v Union of India [(1991) 4 SCC 699], removal is committed to Parliament alone.

The gap the Court identified. "Every misbehaviour in juxtaposition to good behaviour, as a constitutional tautology, will not support impeachment but a misbehaviour which is not a good behaviour may be improper conduct not befitting to the standard expected of a Judge... The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in."

The in-house procedure, which is the answer an examiner wants:

1. The Bar Association must first "gather specific, authentic and acceptable material" showing conduct that would make a reasonable person doubt the judge's honesty, integrity or impartiality.
2. "In all fairness to the Judge, the responsible office-bearers should meet him in camera... and apprise the Judge of the information they had with them" — or, to avoid embarrassing him, approach the Chief Justice of that High Court with the material.
3. That Chief Justice, after verification and if necessary a confidential enquiry from an independent source, consults the Chief Justice of India.
4. Once the Chief Justice of India is seized of it, "the Bar should suspend all further actions", because whatever is done "must not even appear to have been taken under pressure from any quarter".
5. Where the complaint is against a Chief Justice of a High Court, the Bar goes directly to the Chief Justice of India. "On the decision being taken by the Chief Justice of India, the matter should rest at that."

The rationale: "self-regulation by the judiciary is the only method which can be tried and adopted", and the procedure "would fill in the constitutional gap".

A Bar Council or Bar Association has no power to discuss the conduct of a judge of the Supreme Court or a High Court in the discharge of his duties, or to pass a resolution demanding his resignation; where it holds authentic material about such conduct it must place it before the Chief Justice of that High Court and, through him, the Chief Justice of India — and once the Chief Justice of India is seized of the matter, the Bar must suspend all further action.

The five-step in-house procedure is framed as guidance, but it is the operative part of the judgment and what the case is cited for; treat it as binding direction. Obiter: the survey of judicial independence; the account of the United States Judicial Councils Reform and Judicial Conduct and Disability Act of 1980; the discussion of "misbehaviour" in Art. 124(4), drawn from Krishna Swami v Union of India [(1992) 4 SCC 605]; and the observations on the CBI, which follow from Sub-Committee on Judicial Accountability.

The Bar's own rule already pointed the way. Part VI, Chapter II, Rule 1 provides that an advocate "shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities." The rule confers the right and confines it by the words "to proper authorities". What C. Ravichandran Iyer supplies is the content of that phrase: not the press, and not a general body meeting, but the Chief Justice of the High Court and through him the Chief Justice of India.

Why the Chief Justice of India, and not some new body. The Court traced the primacy of that office through Arts. 124(2), 217(1) and 222, through Supreme Court Advocates-on-Record Assn. v Union of India [(1993) 4 SCC 441], which gave him "centre stage position", and through K. Veeraswami v Union of India [(1991) 3 SCC 655], where his sanction was made a condition precedent even to registering a criminal case against a judge. If the Constitution makes him the gatekeeper for appointment, transfer and prosecution, he is the natural authority for conduct falling short of impeachment.

Why the Bar must then stop. This is the step students forget, and the reason is not deference: "any action he may take must not only be just but must also appear to be just to all concerned, i.e., it must not even appear to have been taken under pressure from any quarter."

And the balance the Court struck on speech. Free expression under Art. 19(1)(a) is "one of the most precious liberties in any democracy", but "the nation's interest requires that criticism of the judiciary must be measured, strictly rational, sober and proceed from the highest motives without being coloured by partisan spirit or pressure tactics or intimidatory attitude." And the reason the contempt power exists: "The power to punish the contemner is, therefore, granted to the court not because Judges need the protection but because the citizens need an impartial and strong judiciary."

One sentence for any Bar–Bench answer: "The high moral, ethical and professional standards among the members of the Bar are preconditions even for high ethical standards of the Bench."

Ex-Capt. Harish Uppal v Union of India (Supreme Court, 2003) confirmed the contempt consequence in terms: "if a resolution is passed by Bar Associations expressing want of confidence in judicial officers, it would amount to scandalising the courts to undermine its authority and thereby the advocates will have committed contempt of court." It also held that lawyers have no right to strike, closing off the other route a frustrated Bar might take. Together the two answer the standard problem — a Bar Association resolves to strike over a judge's conduct: the strike is unlawful, the resolution is prohibited and may itself be contempt, and the proper course is the in-house procedure.

R. Muthukrishnan v Registrar General, High Court of Madras (Supreme Court, 2019) adds the courtroom dimension — "There is no room for taking out the procession in the Court premises, slogan raising in the Courts, use of loudspeakers, use of intemperate language with the Judges" — and states the balance the topic turns on: "Independence of Bar and Bench both are supreme, there has to be balance inter se."

Where the law stands. Nothing here has been repealed. Articles 121, 124(4) and (5), 217 and 218, the Judges (Inquiry) Act 1968, the Advocates Act 1961 and the Contempt of Courts Act 1971 are all in force. The Court's own point was that the in-house machinery is a matter of self-regulation by the judiciary and not of statute; it is not part of any enactment.